Kennedy Dev. Co. Inc. v. Camp

We granted certiorari to examine whether the “anti-indemnity” statute found at OCGA § 13-8-2 b applies to invalidate an indemnification clause within an assignment and assumption agreement transferring responsibility for the management and operation of a newly developed subdivision to its homeowners’ association. See Newton’s Crest Homeowners’ Ass’n v. Camp , 306 Ga. App. 207 702 SE2d 41 2010. We now hold that OCGA § 13-8-2 b does apply to the assignment and assumption agreement, and, therefore, we affirm. The undisputed evidence establishes that appellees Donald, Brenda, and Donnie Camp own twelve acres of rural property in Gwinnett County located adjacent to a subdivision named for the lake around which it is situated, Hunter’s Pond. Northwest and upstream of the Hunter’s Pond subdivision is another subdivision, Newton’s Crest, which was developed beginning in 2001 by appellant Kennedy Development Company, Inc. Prior to Kennedy’s purchase of the land for Newton’s Crest, the previous owner of the land, Tycor, Inc. had entered into various agreements with the Hunter’s Pond Homeowners’ Association whereby Hunter’s Pond agreed to permit the future Newton’s Crest subdivision to use its lake as its detention pond in exchange for Tycor’s promise to make certain repairs and improvements to the pond and to maintain the pond on an ongoing basis. In connection with Kennedy’s purchase of the land for Newton’s Crest, Tycor assigned to Kennedy all its rights and responsibilities under the detention facility agreements.

According to the Camps, while excess stormwater from Hunter’s Pond has historically drained into a creek on the Camps’ property, the amount and velocity of the runoff has significantly increased since the development of Newton’s Crest began, resulting in erosion, tree loss, and other damage to the Camps’ property. In 2006, allegedly following various unsuccessful attempts to remedy the problems themselves and through the City of Snellville, the Camps sued Kennedy for negligence, nuisance, and continuing trespass in its development of Newton’s Crest and its upgrading and maintenance of the detention pond.