limitation of liability clause in Georgia

2023The trial court correctly observed, however, that Georgia law recognizes the concept of “gross negligence” in the context of a breach of contract claim as well as in a tort claim.10 In SFG Venture, the agreement provided that the contracting party shall not be liable for any action taken or omitted to be taken by it or by any of its employees, members, officers, managers, contractors or agents, or any of them, for any errors of judgment under, or in connection with this Agreement, or any of the Loan Documents, except in the case of gross negligence or willful misconduct.11 On appeal, the oppos

2023The trial court correctly observed, however, that Georgia law recognizes the concept of “gross negligence” in the context of a breach of contract claim as well as in a tort claim.10 In SFG Venture, the agreement provided that the contracting party shall not be liable for any action taken or omitted to be taken by it or by any of its employees, members, officers, managers, contractors or agents, or any of them, for any errors of judgment under, or in connection with this Agreement, or any of the Loan Documents, except in the case of gross negligence or willful misconduct.11 On appeal, the oppos

2013Georgia courts are thus bound to enforce contracts as made so long as they are not contrary to law or public policy.”). 19 See Colonial Properties, 256 Ga. App. at 111-112 . 18 wanton conduct.” 20 Nevertheless, because exculpatory clauses may amount to “an accord and satisfaction of future claims and waive substantial rights, they require a meeting of the minds on the subject matter and must be explicit, prominent, clear and unambiguous.”21 Moreover, any ambiguities in exculpatory clauses are “construed against the drafters.” 22 Here, the limitation-of-liability clause is found on the back of

2013Georgia courts are thus bound to enforce contracts as made so long as they are not contrary to law or public policy.”). 19 See Colonial Properties, 256 Ga. App. at 111-112 . 18 wanton conduct.” 20 Nevertheless, because exculpatory clauses may amount to “an accord and satisfaction of future claims and waive substantial rights, they require a meeting of the minds on the subject matter and must be explicit, prominent, clear and unambiguous.”21 Moreover, any ambiguities in exculpatory clauses are “construed against the drafters.” 22 Here, the limitation-of-liability clause is found on the back of

2013See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) ( 663 SE2d 240 ) (2008) (holding a limitation-of-liability clause unenforceable on the grounds thatit violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 ( 686 SE2d 853 ) (2009) (holding that a limitation-of-liability clause did not violate public policy).

2013See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) ( 663 SE2d 240 ) (2008) (holding a limitation-of-liability clause unenforceable on the grounds thatit violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 ( 686 SE2d 853 ) (2009) (holding that a limitation-of-liability clause did not violate public policy).

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2013See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) ( 663 SE2d 240 ) (2008) (holding a limitation-of-liability clause unenforceable on the grounds that it violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 ( 686 SE2d 853 ) (2009) (holding that a limitation-of-liability clause did not violate public policy). 21 Holmes, 284 Ga. App. at 477 (2) (punctuation omitted); see Parkside Ctr., Ltd. v. Chicagoland Vending, Inc., 250 Ga. App. 607, 611 (2) ( 552 SE2d 557 ) (2001) (holding that exculpatory cla

2013See, e.g., Lanier at McEver, L.P. v. Planners & Eng’rs Collaborative, Inc., 284 Ga. 204, 205-06 (1) ( 663 SE2d 240 ) (2008) (holding a limitation-of-liability clause unenforceable on the grounds that it violates public policy); RSN Properties, Inc. v. Eng’g Consulting Servs., Ltd., 301 Ga. App. 52, 54-55 ( 686 SE2d 853 ) (2009) (holding that a limitation-of-liability clause did not violate public policy). 21 Holmes, 284 Ga. App. at 477 (2) (punctuation omitted); see Parkside Ctr., Ltd. v. Chicagoland Vending, Inc., 250 Ga. App. 607, 611 (2) ( 552 SE2d 557 ) (2001) (holding that exculpatory cla

2019“In determining whether a limitation of liability clause or an exculpatory clause is sufficiently prominent, courts may consider a number of factors, including whether the clause is contained in a separate paragraph; whether the clause has a separate heading; and whether the clause is distinguished by features such as font size.”19 The record clearly shows that the Provision is the same font size as that used throughout the entirety of the 2012 and 2013 Contracts, and the Provision is not capitalized, italicized, or set in bold type for emphasis.20 Further, the Provision is not 18 See 2010-1 S

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2013Indeed, as previously noted and quite similar to the exculpatory clause at issue in Parkside Ctr., Ltd., the limitation-of-liability clause itself was not set off in any meaningful way here.25 Accordingly, we find that the clause is unenforceable, albeit for a reason different than that relied upon by the trial court. its own paragraph with a capitalized heading and with all key language capitalized); Grace v. Golden, 206 Ga. App. 416, 417 (1) (b) ( 425 SE2d 363 ) (1992) (holding that exculpatory clause in security deed was enforceable when the typeface of the clause was “larger and bolder tha

2013Indeed, as previously noted and quite similar to the exculpatory clause at issue in Parkside Ctr., Ltd., the limitation-of-liability clause itself was not set off in any meaningful way here.25 Accordingly, we find that the clause is unenforceable, albeit for a reason different than that relied upon by the trial court. its own paragraph with a capitalized heading and with all key language capitalized); Grace v. Golden, 206 Ga. App. 416, 417 (1) (b) ( 425 SE2d 363 ) (1992) (holding that exculpatory clause in security deed was enforceable when the typeface of the clause was “larger and bolder tha

2013Int’l, Inc. v. Magnetic Resonance Plus, Inc., 227 Ga. App. 641, 644-45 (1) ( 490 SE2d 124 ) (1997) (holding that exculpatory clause was enforceable when clause was set off in 20 Although not stating as much explicitly, the dissent attempts to distinguish the limitation-of-liability clause at issue here from the exculpatory clause that the dissent’s author found unenforceable in Parkside Ctr., Ltd. v. Chicagoland Vending, Inc.24 by claiming that the capitalized reference to “incidental or consequential damages” alone renders this clause sufficiently prominent.

2013Int’l, Inc. v. Magnetic Resonance Plus, Inc., 227 Ga. App. 641, 644-45 (1) ( 490 SE2d 124 ) (1997) (holding that exculpatory clause was enforceable when clause was set off in 20 Although not stating as much explicitly, the dissent attempts to distinguish the limitation-of-liability clause at issue here from the exculpatory clause that the dissent’s author found unenforceable in Parkside Ctr., Ltd. v. Chicagoland Vending, Inc.24 by claiming that the capitalized reference to “incidental or consequential damages” alone renders this clause sufficiently prominent.

2013See e. g., DOT v. Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); DOT v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) ( 489 SE2d 329 ) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract c

2013See, e.g., Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); Dept. of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489SE2d329) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract

2013See, e.g., Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); Dept. of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489SE2d329) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract

2013See, e.g., Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); Dept. of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489SE2d329) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract

2013See Steiner Corp. v. American District Telegraph, 683 P2d 435, 439-440 (Idaho 1984) (limitation of liability provision in fire alarm system contract was sufficiently broad to limit liability on a negligence claim under Restatement (Second) of Torts § 323 related to the contract). 5 Especially given the competitive market for home security systems, the limitation of liability clause violates no public policy and is valid and enforceable.

2013Moreover, Steiner Corp. v. American District Telegraph, 683 P2d 435, 439-440 (Idaho 1984), upon which the dissent relies, involves an exculpatory clause with materially broader language.

2013See, e.g., Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); Dept. of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489SE2d329) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract

2013See, e.g., Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); Dept. of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489SE2d329) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract

2013See e. g., DOT v. Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); DOT v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) ( 489 SE2d 329 ) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract c

2013See, e.g., Arapaho Constr., 257 Ga. at 270 (finding exculpatory clause not sufficiently specific and unambiguous to cover claim based upon failure to provide right-of-way, where such a claim not specifically addressed in clause); Holmes, 284 Ga. App. at 477 (2) (finding that exculpatory clause, when considered in context, only provided for a waiver of claims if it did not invalidate insurance coverage); Dept. of Transp. v. Dalton Paving & Constr., Inc., 227 Ga. App. 207, 219 (6) (a) (489SE2d329) (1997) (exculpatory clause did not preclude recovery of prejudgment interest for breach of contract

2013Although Monitronics argues for a much broader interpretation of the language referencing any negligence under the law, this Court has long recognized that a clause purporting to relieve a defendant of negligence liability with respect to every legal duty requires clear, explicit language expressing such an intent. “[A] clause having such broad consequences could be effective only by unambiguous language clearly expressing the intention of the parties to exculpate from liability for negligence of every kind.” (Citations and punctuation omitted.) Parkhill Trust Fund, Inc. v. Carroll, 115 Ga. Ap

2013Although Monitronics argues for a much broader interpretation of the language referencing any negligence under the law, this Court has long recognized that a clause purporting to relieve a defendant of negligence liability with respect to every legal duty requires clear, explicit language expressing such an intent. “[A] clause having such broad consequences could be effective only by unambiguous language clearly expressing the intention of the parties to exculpate from liability for negligence of every kind.” (Citations and punctuation omitted.) Parkhill Trust Fund, Inc. v. Carroll, 115 Ga. Ap

2022See Yash Solutions v. New York Global Consultants Corp., 352 Ga. App. 127 , 132-136 (1) (a) ( 834 SE2d 126 ) (2019) (addressing a claim that the defendant in a commercial dispute waived enforcement of a non-compete provision); 2010-1 SFG Venture, 332 Ga. App. at 894, 897-902 (1) (addressing the enforceability of a limitation of liability clause in a commercial real estate lender participation agreement); AAF-McQuay v. Willis, 308 Ga. App. 203, 217-218 (4) & (4) (a) ( 707 SE2d 508 ) (2011) (addressing the defendant’s affirmative defense of waiver to the plaintiff’s claim that the defendant brea

2022See Yash Solutions v. New York Global Consultants Corp., 352 Ga. App. 127 , 132-136 (1) (a) ( 834 SE2d 126 ) (2019) (addressing a claim that the defendant in a commercial dispute waived enforcement of a non-compete provision); 2010-1 SFG Venture, 332 Ga. App. at 894, 897-902 (1) (addressing the enforceability of a limitation of liability clause in a commercial real estate lender participation agreement); AAF-McQuay v. Willis, 308 Ga. App. 203, 217-218 (4) & (4) (a) ( 707 SE2d 508 ) (2011) (addressing the defendant’s affirmative defense of waiver to the plaintiff’s claim that the defendant brea

2022A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”10 “Provisions severely restricting 9 See Martin, 314 Ga. App. at 337 (affirming the trial court’s grant of summary judgment on a contractual good faith claim); WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 469 (2) ( 610 SE2d 352 ) (2005) (same). 10 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 897 (1) (a) ( 775 SE2d 243 ) (2015) (citation and punctuation omitted). 7 remedies . . . act as exculpatory

2022A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”10 “Provisions severely restricting 9 See Martin, 314 Ga. App. at 337 (affirming the trial court’s grant of summary judgment on a contractual good faith claim); WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 469 (2) ( 610 SE2d 352 ) (2005) (same). 10 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 897 (1) (a) ( 775 SE2d 243 ) (2015) (citation and punctuation omitted). 7 remedies . . . act as exculpatory

2022A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”10 “Provisions severely restricting 9 See Martin, 314 Ga. App. at 337 (affirming the trial court’s grant of summary judgment on a contractual good faith claim); WirelessMD v. Healthcare.com Corp., 271 Ga. App. 461, 469 (2) ( 610 SE2d 352 ) (2005) (same). 10 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 897 (1) (a) ( 775 SE2d 243 ) (2015) (citation and punctuation omitted). 7 remedies . . . act as exculpatory

2022See Yash Solutions v. New York Global Consultants Corp., 352 Ga. App. 127 , 132-136 (1) (a) ( 834 SE2d 126 ) (2019) (addressing a claim that the defendant in a commercial dispute waived enforcement of a non-compete provision); 2010-1 SFG Venture, 332 Ga. App. at 894, 897-902 (1) (addressing the enforceability of a limitation of liability clause in a commercial real estate lender participation agreement); AAF-McQuay v. Willis, 308 Ga. App. 203, 217-218 (4) & (4) (a) ( 707 SE2d 508 ) (2011) (addressing the defendant’s affirmative defense of waiver to the plaintiff’s claim that the defendant brea

2022See Yash Solutions v. New York Global Consultants Corp., 352 Ga. App. 127 , 132-136 (1) (a) ( 834 SE2d 126 ) (2019) (addressing a claim that the defendant in a commercial dispute waived enforcement of a non-compete provision); 2010-1 SFG Venture, 332 Ga. App. at 894, 897-902 (1) (addressing the enforceability of a limitation of liability clause in a commercial real estate lender participation agreement); AAF-McQuay v. Willis, 308 Ga. App. 203, 217-218 (4) & (4) (a) ( 707 SE2d 508 ) (2011) (addressing the defendant’s affirmative defense of waiver to the plaintiff’s claim that the defendant brea

2015Lostocco v. D’Eramo, 238 Ga. App. 269, 275 (d) ( 518 SE2d 690 ) (1999). 5 We note that the limitation of liability clause does not contain any “self-limiting” language; that is, it does not limit its application to conduct or actions performed “in accordance with” the terms of the participation agreement, but only “in connection” with it.

2015Lostocco v. D’Eramo, 238 Ga. App. 269, 275 (d) ( 518 SE2d 690 ) (1999). 5 We note that the limitation of liability clause does not contain any “self-limiting” language; that is, it does not limit its application to conduct or actions performed “in accordance with” the terms of the participation agreement, but only “in connection” with it.

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2015Dillard and McFadden, JJ., concur. 1 “[T]he construction of a contract is a matter of law, which is subject to de novo review.” (Footnotes omitted.) Richard Bowers & Co. v. Clairmont Place, LLC, 324 Ga. App. 673, 676 (a) ( 751 SE2d 481 ) (2013). 2 Whether the clause at issue is characterized as a limitation of liability clause or an exculpatory clause is immaterial because “Georgia case law does not appear to treat such clauses differently for purposes of review.” Monitronics Intl., Inc. v. Veasley, 323 Ga. App. 126, 135 (2), n. 20 ( 746 SE2d 793 ) (2013) (physical precedent only as to Divisio

2015Co., 197 Ga. App. 141, 142 ( 397 SE2d 611 ) (1990) (“Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.”) (citations and punctuation omitted); compare Peck v. Rollins Protective Svcs., Inc., 189 Ga. App. 381, 383 (2) ( 375 SE2d 494 ) (1988) (contract clause limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct). 4 If the language of a contract is clear and unambiguous, we enforce the contract according

2015Co., 197 Ga. App. 141, 142 ( 397 SE2d 611 ) (1990) (“Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.”) (citations and punctuation omitted); compare Peck v. Rollins Protective Svcs., Inc., 189 Ga. App. 381, 383 (2) ( 375 SE2d 494 ) (1988) (contract clause limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct). 4 If the language of a contract is clear and unambiguous, we enforce the contract according

2015Co., 197 Ga. App. 141, 142 ( 397 SE2d 611 ) (1990) (“Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.”) (citations and punctuation omitted); compare Peck v. Rollins Protective Svcs., Inc., 189 Ga. App. 381, 383 (2) ( 375 SE2d 494 ) (1988) (contract clause limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct). 4 If the language of a contract is clear and unambiguous, we enforce the contract according

2015Co., 197 Ga. App. 141, 142 ( 397 SE2d 611 ) (1990) (“Absent a public policy interest, contracting parties are free to contract to waive numerous and substantial rights, including the right to seek recourse in the event of a breach by the other party.”) (citations and punctuation omitted); compare Peck v. Rollins Protective Svcs., Inc., 189 Ga. App. 381, 383 (2) ( 375 SE2d 494 ) (1988) (contract clause limiting liability for negligent acts does not serve to limit liability for wilful and wanton conduct). 4 If the language of a contract is clear and unambiguous, we enforce the contract according

2015Ill. decided March 25,2011) (When a bank’s unilateral decision to extend a loan’s maturity date and reduce the interest rate violated the participation agreement, the provision limiting liability to acts of gross negligence or willful misconduct did not protect it from a breach of contract claim because the bank’s actions were not “in accordance with” the participation agreement as specified in the limitation of liability clause.). 6 Lee Bank cites Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) ( 349 SE2d 196 ) (1986) and C&S/Sovran Corp. v. First Fed.

2015Ill. decided March 25,2011) (When a bank’s unilateral decision to extend a loan’s maturity date and reduce the interest rate violated the participation agreement, the provision limiting liability to acts of gross negligence or willful misconduct did not protect it from a breach of contract claim because the bank’s actions were not “in accordance with” the participation agreement as specified in the limitation of liability clause.). 6 Lee Bank cites Dept. of Transp. v. Arapaho Constr., 180 Ga. App. 341, 343 (1) ( 349 SE2d 196 ) (1986) and C&S/Sovran Corp. v. First Fed.

2015Moreover, under Georgia law, “[a] contract must be construed so as to reconcile its different provisions and to reject a construction that leads to a contradiction.” (Citation omitted.) Anderson v. Anderson, 274 Ga. 224, 228 (3) ( 552 SE2d 801 ) (2001).

2015Moreover, under Georgia law, “[a] contract must be construed so as to reconcile its different provisions and to reject a construction that leads to a contradiction.” (Citation omitted.) Anderson v. Anderson, 274 Ga. 224, 228 (3) ( 552 SE2d 801 ) (2001).

2013Cf. Leland Indus., Inc. v. Suntek Indus., Inc., 184 Ga. App. 635, 636-37 (1) ( 362 SE2d 441 ) (1987) (holding that disclaimer was not conspicuous as required by OCGA § 11-2-316 (2) given that only the introductory language was capitalized and the actual disclaimer language was in exactly the same size and color type as the remainder of the contract).

2013Cf. Leland Indus., Inc. v. Suntek Indus., Inc., 184 Ga. App. 635, 636-37 (1) ( 362 SE2d 441 ) (1987) (holding that disclaimer was not conspicuous as required by OCGA § 11-2-316 (2) given that only the introductory language was capitalized and the actual disclaimer language was in exactly the same size and color type as the remainder of the contract).

2013Partnership v. Lowder Const. Co., Inc., 256 Ga. App. 106, 111-112 ( 567 SE2d 389 ) (2002); Duncan v. Integon General Ins.

2013Georgia courts are thus bound to enforce contracts as made so long as they are not contrary to law or public policy.”). 19 See Colonial Properties, 256 Ga. App. at 111-112 . 18 wanton conduct.” 20 Nevertheless, because exculpatory clauses may amount to “an accord and satisfaction of future claims and waive substantial rights, they require a meeting of the minds on the subject matter and must be explicit, prominent, clear and unambiguous.”21 Moreover, any ambiguities in exculpatory clauses are “construed against the drafters.” 22 Here, the limitation-of-liability clause is found on the back of

2013But setting aside whether the trial court was correct in ruling that this limitation-of-liability clause was unconscionable, we nevertheless agree with the court’s ultimate conclusion that the clause was unenforceable, and a summary judgment ruling that 17 is right for any reason—particularly a ruling that involves construction of a contract—must be affirmed.17 At the outset, we note that Georgia’s appellate courts are required to construe agreements in a manner that respects the parties’ sacrosanct freedom of contract.18 Indeed, it is well settled that contracts will not be avoided by the cou

2013But setting aside whether the trial court was correct in ruling that this limitation-of-liability clause was unconscionable, we nevertheless agree with the court’s ultimate conclusion that the clause was unenforceable, and a summary judgment ruling that 17 is right for any reason—particularly a ruling that involves construction of a contract—must be affirmed.17 At the outset, we note that Georgia’s appellate courts are required to construe agreements in a manner that respects the parties’ sacrosanct freedom of contract.18 Indeed, it is well settled that contracts will not be avoided by the cou

2013But setting aside whether the trial court was correct in ruling that this limitation-of-liability clause was unconscionable, we nevertheless agree with the court’s ultimate conclusion that the clause was unenforceable, and a summary judgment ruling that 17 is right for any reason—particularly a ruling that involves construction of a contract—must be affirmed.17 At the outset, we note that Georgia’s appellate courts are required to construe agreements in a manner that respects the parties’ sacrosanct freedom of contract.18 Indeed, it is well settled that contracts will not be avoided by the cou

2013But setting aside whether the trial court was correct in ruling that this limitation-of-liability clause was unconscionable, we nevertheless agree with the court’s ultimate conclusion that the clause was unenforceable, and a summary judgment ruling that 17 is right for any reason—particularly a ruling that involves construction of a contract—must be affirmed.17 At the outset, we note that Georgia’s appellate courts are required to construe agreements in a manner that respects the parties’ sacrosanct freedom of contract.18 Indeed, it is well settled that contracts will not be avoided by the cou

2008Valhal Corp. v. Sullivan Assoc., 44 F3d 195, 202 (II) (B) (3rd Cir. 1995).

2008Valhal Corp. v. Sullivan Assoc., 44 F.3d 195, 202 (II)(B) (3rd Cir.1995).