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Douglas Asphalt Co. v. Georgia Dep't of Transp.

The asphalt company failed to show the existence of a written indemnity provision so as to demonstrate GDOT's waiver of sovereign immunity.

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Douglas Asphalt Company, Joel Spivey, and Kyle Spivey collectively, Douglas Asphalt, as assignees of Applied Technical Services, Inc. ATS, filed a complaint for indemnity and contribution against the Georgia Department of Transportation GDOT seeking payment of damages a jury awarded Douglas Asphalt in a separate lawsuit filed by Douglas Asphalt against ATS. GDOT moved to dismiss on the ground of sovereign immunity. The trial court granted the motion, and Douglas Asphalt appeals. For the reasons that follow, we affirm.

The complaint filed in August 2010 by Douglas Asphalt against GDOT alleged that in 2003, GDOT contracted with ATS for ATS to test core samples of asphalt from milling and resurfacing road work projects earlier performed by Douglas Asphalt. Douglas Asphalt alleged that the purpose of the testing was to determine the amount of hydrated lime which had been placed in the asphalt mixture before Douglas Asphalt applied the mixture to the roadway. Douglas Asphalt alleged that GDOT had instructed ATS to perform a particular type of testing procedure, which GDOT falsely claimed was GDOT’s standard protocol, and despite GDOT’s knowledge that another testing service had refused to perform such testing because it was unreliable. Douglas Asphalt further alleged that during the testing process, an ATS chemist who notified GDOT of concerns about the procedure’s accuracy and validity, was instructed by GDOT to continue testing the samples utilizing the particular testing procedure GDOT had designated. Douglas Asphalt alleged that based on the test results, GDOT declared Douglas Asphalt in default on more than 100 projects and removed it Douglas Asphalt from GDOT’s “bidders list.”

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