CourtListener 10680308

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319 Ga. 512
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S23G0771. OMSTEAD v. BPG INSPECTION, LLC et al.

MCMILLIAN, Justice.

In early 2020, Albert Omstead and BPG Inspection, LLC, a

home inspection company, entered into a contract setting out the

terms for an inspection of a home and property that he and his wife,

Jessique Omstead, desired to purchase. One of the agreed-upon

terms was a one-year limitation providing that Mr. Omstead could

not sue BPG Inspection or its employees after one year from the

inspection. After the inspection was performed, the Omsteads

purchased the home. More than a year later, Mr. Omstead died after

a retaining wall at his home collapsed on him. Mrs. Omstead then

filed a wrongful death suit against BPG Inspection and one of its

inspectors, James Golden (collectively, “BPG”).1 The trial court

determined on the cross-motions for summary judgment that for

1 From here on, we refer to Jessique Omstead as “Omstead” or “Mrs.

Omstead,” and to her deceased husband Albert Omstead as “Mr. Omstead.”
various reasons, the one-year limitation was unenforceable, but the

Court of Appeals reversed. We granted review to consider whether

the Court of Appeals erred in approving the one-year limitation and

whether the limitation is void as against public policy. We conclude

that the one-year limitation is enforceable and that the provision is

not void as against public policy. Accordingly, we affirm.2

1. We review the legal issues raised in a grant or denial of a

motion for summary judgment de novo. See City of Winder v. Barrow

County, 318 Ga. 550 (1) (899 SE2d 157) (2024); Toyo Tire North

America Mfg., Inc. v. Davis, 299 Ga. 155, 161 (2) (787 SE2d 171)

(2016). However, when factual issues are presented on cross-

motions for summary judgment, as they are here, “we view the

evidence in the light most favorable to the nonmovants.”

Raffensperger v. Jackson, 316 Ga. 383, 387 (2) (888 SE2d 483)

(2023).

So viewed, in early 2020, Albert Omstead engaged BPG

2 This case was orally argued on March 21, 2024. We thank Georgians

for Lawsuit Reform and the Georgia Trial Lawyers Association for their helpful
amicus curiae briefs.
2
Inspection to inspect a property the Omsteads wanted to purchase.

Golden, a BPG employee, inspected the property on February 13,

2020. On the same day and before the inspection, Mr. Omstead

signed an agreement (“Inspection Agreement” or “Agreement”)

provided by BPG, which contained several limitations on liability,

including a provision limiting BPG’s liability to one year from the

inspection. In pertinent part, this one-year limitation stated in

bolded font:

YOU MAY NOT FILE A LEGAL ACTION,
WHETHER SOUNDING IN TORT (EVEN IF DUE TO
OUR NEGLIGENCE OR OTHER FAULT), CONTRACT,
ARBITRATION OR OTHERWISE, AGAINST US OR
OUR EMPLOYEES MORE THAN ONE YEAR AFTER
THE INSPECTION, EVEN IF YOU DO NOT DISCOVER
A DEFECT UNTIL AFTER THAT.

In exchange for a $380 inspection fee, Golden performed an

inspection and prepared an inspection report (“Report”). The Report

provided numerous comments on items needing repair or posing

health and safety concerns, but stated that “[l]atent, inaccessible, or

concealed defects are excluded from this inspection.” Instead, the

Report described the inspection’s scope as “a non-invasive

3
examination of readily accessible systems and components as

outlined in the Standards of Practice of the American Society of

Home Inspectors” or in the client’s “specific state standards.” As part

of the inspection, Golden looked at a retaining wall running the

length of the property’s driveway. The Report noted that the wall

had been “[i]nspected,” which the Report defined as “visually

observed and appears to be functioning as intended.” The Report did

not identify defects in the retaining wall or recommend that the wall

be repaired.

On March 7, 2020, Golden, at the request of Omstead’s real

estate agent, returned to the property to reinspect several items that

the Omsteads had requested that the seller repair pursuant to

BPG’s recommendations. After that inspection, a second inspection

report and summary of key findings were generated, but neither

document identified defects in the retaining wall or recommended

that the wall be repaired.3

3 Omstead claims that this second inspection is not covered by the
Inspection Agreement, pointing to language in the Agreement stating that

4
Following the inspections, the Omsteads purchased the

property. On July 16, 2020, Omstead posted on Instagram photos of

the retaining wall and garage, with a caption including the

observation that “[t]here are cracks in the retaining wall that spit

water when it rains, but no official drain holes.”

Over a year later, during a rainstorm on July 19, 2021, Mr.

Omstead began placing a plastic tarp and a piece of particle board

on top of the retaining wall to divert water away from the garage.

As he was doing so, the wall collapsed on him, and he died as a

result.

In September 2021, Omstead filed suit against BPG and

Golden for wrongful death, alleging negligence, fraud, breach of

contract, and breach of express and implied warranties, among other

“[t]his fee is based on a single visit to the property,” to testimony that a
reinspection is “another inspection,” and to the lack of a second agreement.
However, Omstead does not dispute that the second inspection was a follow-
up to the first inspection to ensure that the recommended repairs were made.
Thus, the second inspection flows directly from the Inspection Agreement, and
the evidence on which Omstead relies does not create a genuine issue of
material fact as to whether the second inspection was covered by the Inspection
Agreement.
5
claims. She later added a count for gross negligence.4 BPG moved for

summary judgment, seeking to enforce the Inspection Agreement’s

limitations on liability, including its one-year limitation. Omstead

filed a cross-motion for summary judgment, asking, among other

things, that the trial court hold that the one-year limitation

provision was void as against public policy and, in the alternative,

that the limitation did not apply to Omstead’s claims because it is

an exculpatory clause that must be read strictly against the drafter

and the clause only refers to claims for property damage.

The trial court denied BPG’s motion for summary judgment

and granted Omstead’s cross-motion, concluding that the

Agreement’s limitations on liability did not apply to Omstead’s

personal injury and wrongful death claims, and that to the extent

they did, they were void as against public policy.

The Court of Appeals reversed and directed the trial court to

enter summary judgment in favor of BPG. As an initial matter, the

Court of Appeals held that though the Inspection Agreement was

4 Omstead also added claims as representative of Mr. Omstead’s estate.

6
between BPG and Mr. Omstead, BPG could assert the Agreement’s

one-year limitation as a defense against Omstead’s claims as well.

See BPG Inspection, LLC v. Omstead, 367 Ga. App. 128, 131-32 (1)

(883 SE2d 593) (2023) (“‘any defense which would have been good

against the decedent is good against his representatives in a

wrongful death action’” (emphasis omitted; quoting United Health

Svcs. of Ga., Inc. v. Norton, 300 Ga. 736, 738 (2) (797 SE2d 825)

(2017)). Next, the Court of Appeals concluded, as a matter of

contractual interpretation, that the Agreement’s one-year limitation

applied to all of Omstead’s claims, including her tort claims, because

the limitation expressly applied to any “ ‘legal action, whether

sounding in tort (even if due to [BPG’s] negligence or other fault),

contract, arbitration or otherwise[.]’ ” See 367 Ga. App. at 132 (1)

(quoting Inspection Agreement). Finally, the Court of Appeals held

that the one-year limitation was enforceable and not void as against

public policy. See id. at 132-36 (1).

We granted review on two questions: (1) Did the Court of

Appeals err in approving a provision in a contract between a home

7
inspection company and a consumer that limits the home inspection

company’s liability for claims arising out of any breach of its legal or

contractual duties to within one year after the inspection? (2) Is such

a provision void as against public policy?

2. We first consider whether the Court of Appeals erred in

enforcing the one-year limitation against Omstead. First, Omstead

argues that the one-year limitation applies only to contract claims

and not to claims involving bodily injury or wrongful death or to

claims for gross negligence and fraud. Next, she asserts that the

Court of Appeals erred in treating the one-year limitation as a

“statute of limitation” even though the limitation functioned as a

“contractually-effectuated statute of repose,” which Omstead claims

Georgia law prohibits. Third, she argues that the one-year limitation

impermissibly voids “professional standards of conduct.” We address

each argument in turn.

(a) “The cardinal rule of [contract] construction is to ascertain

the intention of the parties. Where the language in a contract is

unambiguous, that task is often a straightforward one.” Sutherlin v.

8
Sutherlin, 301 Ga. 581, 584-85 (II) (A) (802 SE2d 204) (2017)

(citations and punctuation omitted). Turning to the language of the

contract, we observe that the one-year limitation provides: “You may

not file a legal action, whether sounding in tort (even if due to

[BPG’s] negligence or other fault), contract, arbitration or

otherwise[.]” By its plain language, the one-year limitation

expressly applies to tort and contract claims. Thus, as a threshold

matter, we agree with the Court of Appeals’s interpretation of the

one-year limitation as applying to Omstead’s wrongful death claims,

which sound in tort and contract. See First Acceptance Ins. Co. of

Ga., Inc. v. Hughes, 305 Ga. 489, 494 (2) (826 SE2d 71) (2019)

(“Contractual language that is plain, unambiguous, and capable of

only one reasonable interpretation must be afforded its literal

meaning” (citation and punctuation omitted)). Compare Langley v.

MP Spring Lake, LLC, 307 Ga. 321, 327 (834 SE2d 800) (2019)

(construing a lease agreement’s limitation on liability as applying

“only to claims arising from the contract, and not to Langley’s free-

standing tort claims,” where that limitation used the words “any

9
legal action” but did not expressly state that it applied to tort

claims).5

Relying on McFann v. Sky Warriors, Inc., 268 Ga. App. 750

(603 SE2d 7) (2004), Omstead argues that even if the one-year

limitation applies to tort claims in general, the Court of Appeals

erred in enforcing the one-year limitation to bar her claims for gross

negligence and fraud because such a limitation is an exculpatory

clause and such clauses have been held to not apply to claims of

gross negligence and fraud. See id. at 758 (4) (“Although exculpatory

clauses are valid and binding and not void as against public policy,

exculpatory clauses do not relieve a party from liability for acts of

gross negligence or wilful or wanton conduct.” (citation and

punctuation omitted)).

5 Omstead argues that the one-year limitation does not apply to her
wrongful death claims because the Inspection Agreement focuses on the
discovery and repair of property “defects” rather than on death or bodily injury.
But again, Omstead’s wrongful death claims sound in tort and contract, and
the one-year limitation plainly states that she may not file “a legal action,
whether sounding in tort (even if due to [BPG’s] negligence or other fault) [or]
contract[.]” (Emphasis supplied.) Thus, we read the limitation as applicable to
Omstead’s wrongful death claims. See First Acceptance Ins. Co., 305 Ga. at 494
(2).
10
An “exculpatory clause” is “[a] contractual provision relieving

a party from liability resulting from a negligent or wrongful act.”

“Exculpatory clause,” Black’s Law Dictionary (11th ed. 2019). But

here, even if the limitation operates to bar suit against BPG given

the timing of Mr. Omstead’s death, the limitation did not purport to

relieve or release BPG from liability, because the limitation

permitted suit against BPG—that is, subjected BPG to potential

liability—within a year from the inspection.6 Compare Emory Univ.

v. Porubiansky, 248 Ga. 391, 392 (282 SE2d 903) (1981) (language

in dental form providing that the patient agreed to “‘expressly waive

and relinquish any and all claims of every nature I or my minor child

or ward may have’” and further “‘to hold them harmless as the result

of any claims by such minor child or ward, arising out of any dental

treatment rendered, regardless of its nature or extent’” was an

exculpatory clause); McFann, 268 Ga. App. at 751, 753-54 (2)

(exculpatory clause provided that “‘Participant hereby releases,

6 We express no opinion on whether a contractual limitation period
shorter than one year from the date an action accrues or from another date,
amounts to or could amount to an exculpatory clause.
11
waives, and forever discharges Sky Warriors, Inc.’” from liability,

without permitting any period to file suit); Colonial Properties

Realty Ltd. Partnership v. Lowder Constr. Co., Inc., 256 Ga. App.

106, 107, 112 (5) (567 SE2d 389) (2002) (exculpatory provisions

provided that a party “waive[d] all rights” for various fire damages,

without specifying a timeframe where the rights were still

preserved). Accordingly, we conclude that the principle enunciated

in McFann—that “exculpatory clauses” do not protect against

liability for gross negligence or wilful or wanton conduct, see 268 Ga.

at 758 (4)—does not apply to the one-year limitation in this case.

(b) Omstead also contends that the limitation provision should

not be enforced because it acts as a “contractual repose” provision,

running from the date of the inspection rather than the date that

her action accrued. As relevant here, Omstead asserts a claim for

wrongful death, which “does not accrue until the death occurs[.]”

Williams v. Ga. Dept. of Human Resources, 272 Ga. 624, 626 (532

SE2d 401) (2000). See OCGA § 9-3-33 (“[A]ctions for injuries to the

person shall be brought within two years after the right of action

12
accrues[.]”). Omstead thus argues that the one-year limitation

expired before the wrongful death claim accrued, depriving Omstead

of the opportunity to assert a claim, and that no such type of

“contractual repose” provision has been enforced in Georgia.

We start with first principles. “[A] party may contract away

liability to the other party for the consequences of his own negligence

without contravening public policy, except when such agreement is

prohibited by statute.” Milliken & Co. v. Ga. Power Co., 306 Ga. 6, 8

(1) (829 SE2d 111) (2019) (citation and punctuation omitted). See

New v. Southern R. Co., 116 Ga. 147, 147-51 (42 SE 391) (1902)

(holding that contractual clause exempting railway company from

liability for injuries sustained by employees during employment,

could bar non-criminal negligence claims against company).

Omstead offers no case where we have rejected a contractual

provision like the one-year limitation in this case on the grounds

that the limitation period expired before a party’s claims accrued or

on the grounds that the limitation period deprived a party of the

opportunity to bring a claim. And given our longstanding caution in

13
interfering with the freedom of parties to contract, our silence on

“contractual repose” periods is not enough for us to declare them

void or unenforceable. See generally Innovative Images, LLC v.

Summerville, 309 Ga. 675, 681 (3) (a) (848 SE2d 75) (2020) (“this

Court has long emphasized that courts must exercise extreme

caution in declaring a contract void as against public policy and may

do so only where the case is free from doubt and an injury to the

public clearly appears” (citation and punctuation omitted)); Nat.

Cas. Co. v. Ga. School Boards Assn.-Risk Mgmt. Fund, 304 Ga. 224,

229 (818 SE2d 250) (2018) (“it is the paramount public policy of this

State that courts will not lightly interfere with the freedom of

parties to contract on any subject matter, on any terms, unless

prohibited by statute or public policy, and injury to the public

interest clearly appears” (citation and punctuation omitted)).

Moreover, while we have not found a case from this Court

considering whether to enforce a contractual limitation provision

precisely like the one here, we have long enforced contractual

provisions setting a time period in which a party can file an action,

14
even when that period is shorter than the one, if any, set by

statute—that is, even when the period functions to deprive a party

of the chance to file suit where the law would otherwise permit suit.

See Langley, 307 Ga. at 321-23 & n.1 (agreeing that a contract’s one-

year limitation period could apply to a breach-of-contract claim even

though statute of limitation for breach of a written contract is six

years under OCGA § 9-3-24); Thornton v. Ga. Farm Bureau Mut.

Ins. Co., 287 Ga. 379, 380, 380-81 (1), 389 (4) (695 SE2d 642) (2010)

(approving insurance contract’s one-year limitation period even

though statute of limitation for contract claims was six years);

Massachusetts Benefit Life Assn. v. Robinson, 104 Ga. 256, 272 (30

SE 918) (1898) (“[I]t is [ ] within the power of the contracting parties

to agree among themselves upon a period of time which would

amount to a statute of limitations, either greater or less than the

period fixed by the law”); Brown v. Savannah Mut. Ins. Co., 24 Ga.

97, 101 (1858) (approving six-month contractual limitation period

and stating “[t]here is no reason why a party may not enter into a

covenant, that for an alleged breach of contract, the injured party

15
shall sue within a period less than that fixed by the statute of

limitations as a bar”). We see no reason why the one-year limitation

in this case should not likewise be enforced.

Next, Omstead argues that we should refuse to enforce the one-

year limitation, because by barring Omstead’s claims before they

accrued, the limitation is akin to the statutes of repose that ran from

the date a negligent act or omission occurred and that we found

unconstitutional in Clark v. Singer, 250 Ga. 470, 471-72 (298 SE2d

484) (1983), and in Shessel v. Stroup, 253 Ga. 56, 56, 58 (316 SE2d

155) (1984). But Clark and Shessel are inapposite. In both cases we

held that a statute of repose was unconstitutional as applied,

because the statute violated equal protection clauses under the

federal and state constitutions. See Clark, 250 Ga. at 472 (“We find

no rational basis for a limitation scheme which permits a medical

malpractice wrongful death action if the patient dies within two

years of the defendant's negligent act but which bars a wrongful

death action if the patient lives for two years after defendant's

negligent act where the defendant is a doctor but not in other

16
wrongful death cases.”); Shessel, 253 Ga. at 58 (similar statutory

scheme involving a period of repose failed to show “substantial

relation” to the object of the legislation). Here, by contrast, Omstead

makes no argument challenging any statutory scheme on equal

protection grounds.

should not be enforced because it “contractually avoid[s]

professional standards of conduct” in violation of Porubiansky.

There, we held that “it is against the public policy of this state to

allow one who procures a license to practice dentistry to relieve

himself by contract of the duty to exercise reasonable care.”

Porubiansky, 248 Ga. at 394. Omstead argues that home inspectors

owe duties under OCGA §§ 8-3-331 and 8-3-332, including duties to

provide a written report and make recommendations for repairs.7

7 Omstead also suggests that BPG owed Mr. Omstead duties that one

owes those for whom one voluntarily undertakes to perform services. See
Rymer v. Polo Golf & Country Club Homeowners Assn., Inc., 335 Ga. App. 167,
175-76 (2) (b) (780 SE2d 95) (2015) (referencing Restatement (Second) of Torts
§ 323 to discuss a duty of one who voluntarily undertakes to perform a service
for another who relies on it to perform that service with reasonable care). But
BPG was compensated for performing the inspection, so the voluntary
undertaking doctrine does not apply.
17
But Porubiansky is distinguishable. There, we did not enforce

the liability release at issue because “the attempt to relieve the clinic

. . . from the statutory duty of care for licensed professional medical

services conflicts with and frustrates the policies of the state as

expressed through our General Assembly.” 248 Ga. at 392-93.

Dentistry, we explained, is a profession “licensed and controlled by

the state.” See id. at 393-94 (citing Ga. Code Ann. of 1933, Chapter

84-7). The “legislature has established a minimum standard of care”

that “governs the duties and responsibilities of a dentist.” Id. at 393

(citing Ga. Code Ann. of 1933, § 84-924 (now OCGA § 51-1-27) (“A

person professing to practice surgery or the administering of

medicine for compensation must bring to the exercise of his

profession a reasonable degree of care and skill.”)).

The statutory backdrop in Porubiansky—which reflected “the

strong policy of the state . . . to regulate those professionals that it

licenses,” 248 Ga. at 393—is not present here. While dentists are

licensed professionals under the Georgia Code, see OCGA § 43-11-1

et seq. (Title 43 (“Professions and Businesses”), Chapter 11

18
(“Dentists, Dental Hygienists, and Dental Assistants”)); Ga. Code

Ann. of 1933, Chapter 84-7, no similar statutory scheme or policy to

license home inspectors exists. And, the statutory scheme governing

home inspections focuses on the content of the inspections and

resulting reports, rather than on the duty of home inspectors as

professionals. Omstead points to OCGA § 8-3-331,8 but nothing in

the statute’s plain text imposes upon home inspectors a duty to

conduct an inspection with a particular standard of care, as do the

statutes governing dentists and other medical professionals. See

Porubiansky, 248 Ga. at 393-94. Instead, the statute merely requires

a home inspector to provide a “written document” specifying certain

8 OCGA § 8-3-331 states:

Every home inspector shall provide to the person on whose
behalf a home or single-family dwelling is being inspected a
written document specifying:
(1) The scope of the inspection, including those
structural elements, systems, and subsystems to be
inspected;
(2) That the inspection is a visual inspection; and
(3) That the home inspector will notify in writing the
person on whose behalf such inspection is being made of any
defects noted during the inspection, along with any
recommendation that certain experts be retained to
determine the extent and corrective action necessary for
such defects.
19
aspects of the inspection: (1) the inspection’s “scope,” (2) “[t]hat the

inspection is a visual inspection,” and (3) “[t]hat the home inspector

will notify in writing” the consumer “of any defects noted during the

inspection, along with any recommendation that certain experts be

retained to determine the extent and corrective action necessary for

such defects.”9 OCGA § 8-3-331.

Unless the contractual provision is otherwise in contravention

of public policy, which we consider below, Omstead has offered no

reason not to enforce the one-year limitation here—a period the

parties have mutually agreed to by contract—even though the one-

year period expired before Omstead’s wrongful death claim accrued.

Thus, we answer the first question posed on certiorari in the

negative: the Court of Appeals did not err in approving a provision

in a contract between a home inspection company and a consumer

that limits the home inspection company’s liability for claims arising

out of any breach of its legal or contractual duties to within one year

9 OCGA § 8-3-332, in turn, provides that those who violate OCGA § 8-3-

331 “shall be guilty of a misdemeanor.”
20
after the inspection.10

3. Turning to the second question, we consider whether the

one-year limitation is void as against public policy. “A contract that

is against the policy of the law cannot be enforced.” OCGA § 13-8-2

(a). And as this Court has stated:

A contract cannot be said to be contrary to public
policy unless the General Assembly has declared it to be
so, or unless the consideration of the contract is contrary
to good morals and contrary to law, or unless the contract
is entered into for the purpose of effecting an illegal or
immoral agreement or doing something which is in
violation of law.

Dept. of Transp. v. Brooks, 254 Ga. 303, 312 (1) (328 SE2d 705)

10 At oral argument, some members of the Court raised the concern that

the one-year limitation may be voidable as unconscionable. We have defined
an “unconscionable contract” as one that “no sane man not acting under a
delusion would make and that no honest man would take advantage of[.]” NEC
Technologies., Inc. v. Nelson, 267 Ga. 390, 391 (1) n.2 (478 SE2d 769) (1996)
(citation and punctuation omitted). Though an unconscionability inquiry may
overlap with an inquiry on whether a contract violates public policy, the two
inquiries are different. Compare Innovative Images, 309 Ga. at 684-85 (3) (b)
(“We examine unconscionability from the perspective of substantive
unconscionability, which looks to the contractual terms themselves, and
procedural unconscionability, which considers the process of making the
contract.” (citation, punctuation and emphasis omitted)), with Dept. of Transp.
v. Brooks, 254 Ga. 303, 312 (1) (328 SE2d 705) (1985) (a contract is not contrary
to public policy unless the legislature has declared it to be so, or unless its
consideration or purpose is illegal or immoral). Because Omstead never argued
before the trial court that the one-year limitation was unconscionable, we
decline to address whether the limitation is voidable as unconscionable.
21
(1985) (citation and punctuation omitted). See also OCGA § 1-3-7

(“Laws made for the preservation of public order or good morals may

not be dispensed with or abrogated by any agreement. However, a

person may waive or renounce what the law has established in his

favor when he does not thereby injure others or affect the public

interest.”). We have long emphasized that “‘courts must exercise

extreme caution in declaring a contract void as against public policy’

and may do so only ‘where the case is free from doubt and an injury

to the public clearly appears.’” Innovative Images, 309 Ga. at 681 (3)

(a) (quoting Porubiansky, 248 Ga. at 393). “Importantly, a contract

is void as against public policy not because the process of entering

the contract was improper and objectionable by one party or the

other, but rather because the resulting agreement itself is illegal and

normally unenforceable by either party.” Id. (emphasis in original).

Omstead argues that the one-year limitation is void because it

violates OCGA § 13-8-2 (b), which states, in pertinent part:

A covenant, promise, agreement, or understanding
[1] in or in connection with or collateral to a contract or
agreement relative to the construction, alteration, repair, or

22
maintenance of a building structure, appurtenances, and
appliances, including moving, demolition, and excavating
connected therewith, [2] purporting to require that one
party to such contract or agreement shall indemnify, hold
harmless, insure, or defend the other party to the contract
or other named indemnitee, including its . . . employees,
against liability or claims for damages, losses, or expenses,
including attorney fees, arising out of bodily injury to
persons, death, or damage to property caused by or
resulting from the sole negligence of the indemnitee, or its
. . . employees, is against public policy and void and
unenforceable.

(Emphasis supplied.)

Omstead contends that the Inspection Agreement is a “contract

or agreement relative to the construction, alteration, repair, or

maintenance” of property, see OCGA § 13-8-2 (b), because the

Agreement mentions “repairing [a] defect,” an inspection was

performed to identify defects in need of repair, and an inspection

report was generated that contained many comments concerning

“defects” and “repairs.” See Milliken, 306 Ga. at 10 (1) (a) (“Georgia

courts have consistently construed OCGA § 13-8-2 (b) broadly”

(citation and punctuation omitted)); Kennedy Dev. Co., Inc. v. Camp,

290 Ga. 257, 259-60 (719 SE2d 442) (2011) (listing a variety of

23
contracts to which OCGA § 13-8-2 (b) has been applied).

Assuming, without deciding, that the Inspection Agreement is

a type of contract that falls under OCGA § 13-8-2 (b), we consider

whether the one-year limitation “purport[s] to require that one party

to such contract or agreement shall indemnify, hold harmless,

insure, or defend the other party.” See OCGA § 13-8-2 (b); Kennedy,

290 Ga. at 259 (“[I]n order to fall within the ambit of [OCGA § 13-8-

2 (b)], an indemnification provision must . . . promise to indemnify a

party for damages arising from that own party’s sole negligence.”).

Omstead contends that the one-year limitation is void because

it requires Omstead to “indemnify” or “hold [BPG] harmless.”11 We

have defined “indemnity” as “the obligation or duty resting on one

person to make good any loss or damage another has incurred by

acting at his request or for his benefit.” Lanier at McEver, L.P. v.

Planners & Engineers Collaborative, Inc., 284 Ga. 204, 206-07 (2)

11 Omstead does not contend that the one-year limitation required
Omstead to “insure” or “defend” BPG. Also, Omstead does not claim any
material difference between an “indemnity” and “hold harmless” provision. We
need not parse whether there is any material difference between these types
of provisions because we conclude that the one-year limitation is neither.
24
(663 SE2d 240) (2008) (citation and punctuation omitted). See

“Indemnify,” Black’s Law Dictionary, 11th ed. (“Indemnify” means

“[t]o reimburse (another) for a loss suffered because of a third party’s

or one’s own act or default,” to “promise to reimburse (another) for

such a loss,” or to “give (another) security against such a loss.”). To

“hold harmless” means to “absolve (another party) from any

responsibility for damage or other liability arising from the

transaction.” “Hold harmless,” Black’s Law Dictionary, 11th ed. See

Lanier, 284 Ga. at 209-10 (1) (Melton, J., dissenting) (citing Black’s

Law Dictionary 731 (6th ed. 1990) to state that “[a] hold harmless

clause is an ‘(a)greement or contract in which one party agrees to

hold the other without responsibility for damage or other liability

arising out of the transaction involved.’”).

Here, the plain text of the one-year limitation does not require

Omstead to reimburse or “make good” any damage to BPG, nor does

it require that Omstead hold BPG harmless for any loss. See Lanier,

284 Ga. at 206 (2) (citation and punctuation omitted). Compare

Milliken, 306 Ga. at 7 (provision stated that one party “shall hold

25
Milliken . . . harmless from any damages to property or persons”

resulting from that party’s conduct (punctuation omitted)); Kennedy,

290 Ga. at 258 (indemnification and hold-harmless provision stated

that an entity “shall . . . indemnify, defend and hold [Appellant]

harmless”).

Yet, Omstead argues that the one-year limitation still

functions as an indemnity or hold-harmless provision, just as a

contractual clause did in Lanier, 248 Ga. at 206-07 (2). In Lanier, a

large construction developer retained a civil engineering firm to

design a storm-water drainage system and, in the contract for

services, agreed to a clause limiting the liability of the engineering

firm for any claims, including those of third parties, to the

engineering firm’s fee for the services. See id. at 204-05. We

recognized in Lanier that though the clause did not explicitly require

the developer to “indemnify” or “hold harmless” the engineering

firm, the clause nonetheless acted as an indemnity and hold-

harmless provision because it applied to “any and all claims by third

parties and shift[ed] all liability above the fee for services to Lanier

26
no matter the origin of the claim or who is at fault.” Id. at 207-08 (2)

(punctuation omitted).

Here by contrast, the one-year limitation does not authorize

BPG to recover from Omstead damages that BPG has incurred

because of a third-party claim arising from BPG’s sole negligence.

The one-year limitation does not “shift liability” from BPG to

Omstead: Omstead is not being made to pay for the damages that

BPG owes a third party. Nor does the limitation “absolve” BPG from

liability. See “Hold harmless,” Black’s Law Dictionary, 11th ed.

Instead, the limitation only requires Omstead to “not file a legal

action” after one year from the inspection, permitting suit to be filed

against BPG within the one-year period—and thus the possibility

that BPG incur “responsibility” for damage arising from the

inspection. See Lanier, 284 Ga. at 209-10 (1).

For these reasons, we conclude that the one-year limitation

does not violate OCGA § 13-8-2 (b) and is not void as against public

27
policy.12

Judgment affirmed. All the Justices concur, except Pinson, J.,
disqualified.

PETERSON, Presiding Justice, concurring dubitante.

I concur in the decision of the Court because it is a faithful

application of our precedent. But I do so dubitante because I cannot

kick the nagging sense that there’s something missing from the law.

Footnote 6 appropriately notes that we do not address whether a

shorter limitations period would have been enforceable. During

argument, the question was put to counsel for BPG as to whether a

limitations period shorter than a year could ever be enforceable.

Counsel stated that a period of one day would be unconscionable.13

12 Omstead also contends, in passing, that the one-year limitation
violates OCGA § 13-8-2 (c), which applies to contracts or agreements “in . . .
engineering, architectural, or land surveying services” and requiring one party
to “indemnify, hold harmless, insure, or defend” another. Even if we assume
that the Inspection Agreement is the type of agreement covered by OCGA § 13-
8-2 (c), we conclude, for the same reasons as above, that the one-year limitation
is not an indemnity or a hold-harmless provision and thus does not violate
OCGA § 13-8-2 (c).
13 As the Court’s opinion notes, we do not consider unconscionability here

28
In follow-up questions, counsel acknowledged that a 30-day period

would be unconscionable, and could not identify where the line was

that rendered a limitations period too short to be enforceable.

But neither can I. And there may not be just one line; it seems

reasonable to think that the subject matter of the contract is

relevant to how long a period must be (during questioning, counsel

acknowledged that subject matter “may be” relevant). For example,

a sufficient limitations period for a contract for replacement of brake

pads could likely be shorter than the limitations period would need

to be for a contract for construction of underground infrastructure,

where one would expect a defect to take longer to become noticeable.

And if that’s so, a contract for building inspection (like the one at

issue here) would seem to be closer to the latter.

But these sorts of distinctions are difficult for a court to draw

in any principled manner, and I don’t see a clear legal basis under

because the plaintiff did not raise it below. But it’s not clear to me that a too-
short limitations period must always be assessed under only unconscionability,
rather than assessed through a public policy lens as an exculpatory clause. The
effect of a too-short limitations period seems to me as not materially different
from an exculpatory clause.
29
our precedent for doing so in a way that sets the line at more than

one year in this case. And as the Court’s decision makes clear, our

precedent is best read to leave those distinctions for the legislature

to draw. For that matter, that’s a point Presiding Judge Barnes

made below in her full and special concurrence, which I agree with

to that extent. See BPG Inspection, LLC v. Omstead, 367 Ga. App.

128, 136 (883 SE2d 593) (2023) (Barnes, P. J., concurring fully and

specially).

In short, I don’t have a sufficient legal basis to dissent from the

Court’s conclusion that nothing in our law allows us to say that the

one-year contractual limitations period here was void for public

policy, and so I join the opinion of the Court fully. I just do so with

some unresolved questions, and thus I concur dubitante.

30
Decided June 11, 2024 — Reconsideration denied July 11, 2024.

Certiorari to the Court of Appeals of Georgia — 367 Ga. App.

128.

Lourie Chance Forlines Carter & King, Lance D. Lourie,

Stephen R. Chance, Andrew J. King; The Summerville Firm, J.

Darren Summerville, Kristopher R. Alderman, for appellant.

Smith Gambrell & Russell, Leah Ward Sears, Edward D.

Burch, Jr., Edward H. Wasmuth, Jr.; Smith Conerly, Charles S.

Conerly, for appellee.

Stewart Miller Simmons, Madeleine N. Simmons; Harris

Lowry Manton, Madeline E. McNeeley; McArthur Law Firm, Caleb

F. Walker; Meagan M. Hanson; Kilpatrick Townsend & Stockton,

John P. Jett, K. Bradford Sears, amici curiae.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: June 11, 2024