             Case: 19-11148   Date Filed: 04/23/2020   Page: 1 of 16



                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-11148
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 4:17-cv-00125-HLM



GEORGIA POWER COMPANY,

                                                             Plaintiff - Appellee,

                                    versus

ABB, INC.,

                                                          Defendant - Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (April 23, 2020)

Before WILLIAM PRYOR, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Georgia Power Company (“Georgia Power”) brought a third-party complaint

against ABB, Inc. (“ABB”) seeking indemnification and alleging a breach of

contract for ABB’s failure to make Georgia Power an additional insured on ABB’s

liability insurance policy. The District Court granted summary judgment to

Georgia Power on all claims. On appeal, ABB argues that summary judgment on

Georgia Power’s indemnification claims was not warranted because ABB’s

contract with Georgia Power was ambiguous as to whether ABB had to indemnify

Georgia Power for its own negligence. ABB also argues that Georgia Power was

not entitled to summary judgment on its breach of contract claim because it did not

show independent damages. After careful consideration, we affirm.

                                         I.

      Since at least 2000, ABB has provided equipment and services in support of

the automatic control systems at Georgia Power’s power generation facilities. In

2015, one of ABB’s senior field technicians, David Garrison, was severely injured

while performing electrical work at Plant Bowen, a power plant owned and

operated by Georgia Power. Garrison and his wife brought personal injury claims

against Georgia Power, alleging that Georgia Power had negligently operated Plant

Bowen. Georgia Power in turn sought indemnification from ABB for the

Garrisons’ lawsuit. Citing the indemnification provision in its contract with

Georgia Power, ABB responded that it was not required to provide indemnification


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for liability arising from Georgia Power’s own negligence. That indemnification

provision says ABB must indemnify Georgia Power for all losses and liability,

“except to the extent caused by Company’s negligence.” The dispute over

indemnification thus turns on whether “Company” refers to Georgia Power.

A. The Contract

      The relationship between ABB and Georgia Power is governed by a series of

agreements between ABB and Southern Company Services, Inc. (“SCS”). SCS is

a subsidiary of Southern Company that provides certain services to Southern

Company and its operating divisions, including Georgia Power. ABB and SCS

entered a Master Agreement for Services (the “Master Agreement”) in 2007, and

Amendment One to the Master Agreement (“Amendment One”) in 2013. The

Master Agreement and Amendment One (together, “Contract”) set forth the terms

by which Georgia Power and other SCS-affiliated entities purchase equipment and

services from ABB.

B. The Indemnification Provisions

      Both the Master Agreement and Amendment One contain indemnification

clauses, but these clauses differ in material respects. Under the Master

Agreement’s indemnification clause, ABB agrees to fully indemnify “Persons

Indemnified” for all covered claims except those “result[ing] from the sole




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negligence, fraud or intentional wrongdoing of a Person Indemnified.” The Master

Agreement’s definition of “Persons Indemnified” includes Georgia Power.

       In Amendment One, ABB again agreed to indemnify “Persons Indemnified,”

which continues to refer to Georgia Power. However, the indemnification

provision in Amendment One provides that, upon determination that “Company”

was negligent, “Company” would be responsible for a pro rata share of its own

negligence:

       General Indemnification. To the fullest extent permitted by applicable
       law, Contractor will indemnify, defend and hold harmless the Persons
       Indemnified from and against any and all loss, damage, costs . . . , or
       liability, except to the extent caused by Company’s negligence . . . .
       Contractor shall assume the defense of any claim subject to this
       Indemnity and defend it until such time there is a determination of
       negligence by the Company, either by court, arbitrator, or agreement,
       and at which time liability for the fault shall be shared on a pro rata
       basis to the extent of the Company's negligence.1

Both parties agree that the indemnification clause in Amendment One, and not the

indemnification provision in the Master Agreement, governs this dispute.

C. The Contract’s Definition of “Company” and “Affiliate”

       The Master Agreement defines both “Company” and “Affiliate” in its

preamble paragraph:

       This Agreement is entered by Southern Company Services, Inc., an
       Alabama corporation with its principal office at 600 North Eighteenth
       Street, Birmingham, Alabama 35203 (acting for itself and as agent for

1
 While the parties dispute the meaning of “Company” in the Contract, they agree that
“Contractor” refers to ABB.

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      Alabama Power Company, Georgia Power Company (“GPC”), Gulf
      Power Company and Mississippi Power Company (individually,
      “Affiliate” and collectively “Affiliates”) as may be applicable under the
      circumstances), (“Company”) and ABB, Inc., a Delaware corporation
      with its principal office at 501 Merritt Parkway, Norwalk, Connecticut
      (“Contractor”).

Meanwhile, Amendment One defines “Company” in its title, which reads:

“AMENDMENT NO. ONE (1) to Master Agreement for Services between

Southern Company Services, Inc. (‘Company’) and ABB Inc. (‘Contractor’)

Agreement No. 8981 (‘Agreement’).”

      Paragraph 1.3 of the Master Agreement explains the relationship between

“Company” and its “Affiliates”:

      The Parties agree that Company is entering into this Agreement not
      only for its own benefit, but also and equally for the direct benefit of its
      parent, Southern Company, and Affiliates, both present and future. All
      rights, benefits, discounts, remedies and warranties accruing to
      Company in this Agreement will likewise accrue to the Affiliates,
      including the right to enforce this Agreement in their respective names.

The same provision says that Affiliates could make purchase orders to ABB under

the Master Agreement, but that for any such order, “[e]ach Affiliate [would] be

solely responsible for its own transactions, including payment obligations.”

D. District Court Proceedings

      After ABB refused to fully indemnify Georgia Power—including for

liability arising out of Georgia Power’s own negligence—Georgia Power brought a

third-party complaint against ABB. The complaint made claims for


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indemnification; breach of contract with respect to ABB’s failure to indemnify;

and attorney’s fees and costs for enforcing the Contract’s indemnification

provision (collectively, “Indemnification Claims”). Separately, the complaint

alleged a breach of contract with respect to ABB’s failure to add Georgia Power to

its liability insurance (“Insurance Claim”). Georgia Power sought summary

judgment on all claims.

       The district court granted summary judgment to Georgia Power on its

Indemnification Claims after concluding the Contract unambiguously defined

“Company” as referring only to SCS, and not Georgia Power. The district court

based this conclusion primarily on the fact that “Company” was defined as SCS in

the introductory paragraph of the Master Agreement. It also held that even if the

term “Company” were ambiguous, it would resolve that ambiguity in favor of

Georgia Power because holding otherwise would render certain terms in the

contract meaningless. Finally, the district court granted Georgia Power summary

judgment on its Insurance Claim because (a) ABB did not contest that part of

Georgia Power’s summary judgment motion; and (b) the undisputed facts showed

that ABB breached its contractual duty to provide Georgia Power with insurance in

connection with the Garrisons’ claims. 2 This appeal followed.


2
 The district court also held (1) based on the undisputed facts, ABB or a member of its
personnel had been negligent, thus triggering ABB’s obligation to indemnify under the Contract;
and (2) the language of the indemnification clause was sufficiently explicit, under Georgia law,

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                                             II.

       We review de novo a district court’s grant of summary judgment. Mangieri

v. DCH Healthcare Auth., 304 F.3d 1072, 1075 (11th Cir. 2002). “The

interpretation of a contract is a question of law that the court reviews de novo.”

Daewoo Motor Am., Inc., v. Gen. Motors Corp., 459 F.3d 1249, 1256 (11th Cir.

2006). Whether a contract is ambiguous, and whether that ambiguity can be

resolved without submission to a jury, is also a question of law reviewed de novo.

See Underwriters at Lloyd Subscribing to Cover Note B0753PC1308275000 v.

Expeditors Korea, Ltd., 882 F.3d 1033, 1039 (11th Cir. 2018).

                                            III.

       On appeal, ABB raises two arguments. First, it challenges the district

court’s determination that “Company” in the Contract refers only to Southern

Company Services. Second, it argues that Georgia Power was not entitled to

summary judgment on its insurance claim because Georgia Power provided no

evidence of “independent damages.” We address each argument in turn.

A. The Indemnification Claims




so as to indemnify Georgia Power for its own negligence. ABB does not challenge these aspects
of the summary judgment order, and we do not address them on appeal.


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         Under Georgia law, 3 courts interpret contracts in three steps. First, we

determine whether the contract language is unambiguous. City of Baldwin v.

Woodard & Curran, Inc., 743 S.E.2d 381, 389 (2013). If it is, we enforce the

contract according to its plain terms. Id. If the contract is ambiguous, we must

apply Georgia’s rules of contract construction to resolve the ambiguity. Id. And if

ambiguity remains after applying the rules of construction, “the issue of what the

ambiguous language means and what the parties intended must be resolved by a

jury.” Id.

         A contract is ambiguous when “the words used in the contract leave the

intent of the parties in question—i.e., that intent is uncertain, unclear, or is open to

various interpretations.” Grange Mut. Cas. Co. v. Woodard, 861 F.3d 1224, 1231

(11th Cir. 2017) (quoting Capital Color Printing, Inc. v. Ahern, 661 S.E.2d 578,

583 (Ga. Ct. App. 2008)). Georgia courts have defined ambiguity as “duplicity,

indistinctness, an uncertainty of meaning or expression used in a written

instrument.” First Acceptance Ins. Co. of Ga., Inc. v. Hughes, 826 S.E.2d 71, 75–

76 (Ga. 2019) (quotation marks omitted). On the other hand, “no ambiguity exists

where, examining the contract as a whole and affording the words used therein

their plain and ordinary meaning, the contract is capable of only one reasonable




3
    The parties agreed that the Contract would be governed by Georgia law.

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interpretation.” Grange, 861 F.3d at 1231 (quoting Capital Color Printing, 661

S.E.2d at 583).

      1. The Contract Unambiguously Defines “Company” as Southern Company
         Services.

      The Contract defines “Company” in two different provisions. First, the

Master Agreement’s preamble states, “This agreement is entered by Southern

Company Services, Inc., . . . (acting for itself and as agent for Alabama Power

Company, Georgia Power Company [], Gulf Power Company and Mississippi

Power Company (Individually, ‘Affiliate’ and collectively, ‘Affiliates’) . . . )

(‘Company’) and ABB Inc., . . . (‘Contractor’).” And second, Amendment One

states in its title that it is amending the Master Agreement “between Southern

Company Services, Inc. (‘Company’) and ABB Inc. (‘Contractor’).”

      Both the preamble to the Master Agreement and the title of Amendment One

thus indicate that “Company” is a defined term that refers to Southern Company

Services. See HIP, Inc. v. Hormel Foods Corp., 888 F.3d 334, 339 (8th Cir. 2018)

(recognizing the principle that a “defined term is defined by tucking it at the end of

the definition, in parentheses” (quotation marks omitted)); Bryan A. Garner, The

Elements of Legal Style § 4.5, at 81 (2d ed. 2002) (describing parentheses with

quotation marks inside as sufficient to signal a defined term). Meanwhile, the

preamble provides that Georgia Power is an “Affiliate,” rather than the




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“Company.” See Olympus Ins. Co. v. AON Benfield, Inc., 711 F.3d 894, 898 (8th

Cir. 2013) (holding that a parenthetical term defines the term preceding it).

      ABB argues the preamble’s definition of “Company” is difficult to decipher

due to its use of nested parentheticals, and that this difficulty itself raises a factual

ambiguity as to whether the term “Company” includes Georgia Power. But

Georgia courts have held time and again that “[a] contract is not ambiguous even

though difficult to construe.” F & F Copiers, Inc. v. Kroger Co., 391 S.E.2d 711,

713 (Ga. Ct. App. 1990) (quotation marks omitted). And while the preamble was

not artfully written, the term “Company” indisputably refers to SCS and not

Georgia Power. Beyond that, the title to Amendment One clears up any potential

confusion by plainly associating “Company” with its directly adjacent term,

“Southern Company Services, Inc.” We therefore disagree with ABB that the

Master Agreement’s preamble renders “Company” ambiguous.

      2. ABB Waived its Argument that the Contract’s “Broad” and “Narrow”
         Uses of “Company” Rendered that Term Ambiguous.

      ABB also argues that the term “Company” is ambiguous because the

Contract sometimes uses a “broad” definition of “Company” that refers to both

SCS and Affiliates such as Georgia Power, as well as a “narrow” definition that

applies only to SCS. The parties disagree on whether ABB waived this argument

by failing to raise it in the district court. We hold that ABB did not make this

argument in the district court, and that we need not consider it on appeal. And

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even if we were to consider this new argument, we reject the idea that the contract

employs a “broad” definition of “Company” that must refer to both SCS and

Georgia Power.

      To start, at no point in ABB’s summary judgment briefing did it argue that

the Contract was ambiguous by virtue of its varying broad and narrow usages of

the term “Company.” Rather, ABB argued (1) that the Contract “specifically”

defines Company as both SCS and Georgia Power; and (2) that the definition of

Company includes Georgia Power because SCS entered the Contract acting as

Georgia Power’s agent. And while ABB contended that any potential ambiguity

would have to be resolved against Georgia Power, ABB did not specifically argue

that the Contract is ambiguous, let alone that the Contract’s inconsistent

deployment of “Company” is the reason for that ambiguity. See Trade Am Int’l,

Inc. v. Cincinnati Ins. Co., 504 F. App’x 860, 861 (11th Cir. 2013) (per curiam)

(unpublished) (refusing to consider an issue on appeal because the “specific”

argument was not raised below).

      “As a general rule, an issue not raised in the district court and raised for the

first time in an appeal will not be considered by this court.” See Blue Martini

Kendall, LLC v. Miami Dade County, 816 F.3d 1343, 1349 (11th Cir. 2016)

(quotation marks omitted). However, this rule is discretionary in nature, and our

Circuit has established specific exceptions for where courts may consider


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arguments not raised below. Id. One such exception is when the issue “involves a

pure question of law, and [] refusal to consider it would result in a miscarriage of

justice.” Id. at 1350 (quotation marks omitted). This court has previously held that

a refusal to consider an issue would result in a miscarriage of justice where the

issue involves a constitutional issue, or an “issue of general impact.” Id.; see In re

Worldwide Web Sys., Inc., 328 F.3d 1291, 1301 (11th Cir. 2003) (holding that a

refusal to consider an issue would result in a miscarriage of justice where the issue

was of “transcending public importance”). We are more willing to consider an

issue not previously raised on an appeal from summary judgment. See Blue

Martini, 816 F.3d at 1349.

      ABB’s new argument fails to satisfy any of the exceptions to the general rule

prohibiting consideration of issues raised for the first time on appeal. While it is

true that ABB’s new argument raises a pure question of law, our refusal to consider

it is far from what we have traditionally deemed a “miscarriage of justice.”

Compare Blue Martini, 816 F.3d at 1350 (holding that “application of an

unconstitutional statute” would result in a miscarriage of justice), with Cita Tr. Co.

AG v. Fifth Third Bank, 879 F.3d 1151, 1156 (11th Cir. 2018) (“[W]e can discern

no miscarriage of justice in enforcing the express terms of a contract . . . between

two sophisticated parties.”); OMV Assocs. Ltd. P’ship v. TriMont Real Estate

Advisors, 484 F. App’x 299, 306 (11th Cir. 2012) (per curiam) (unpublished) (“A


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litigant’s inability to inject a new ambiguity into a contract . . . will rarely be a

miscarriage of justice . . . .”). And although it is true that we are more willing to

consider unpreserved arguments on an appeal from summary judgment, that fact

alone is not a permissible basis for exercising our discretion. See Blue Martini,

816 F.3d at 1350. We therefore hold that ABB waived its argument that Contract

used the term “Company” inconsistently.

      Even if we were to consider ABB’s new argument, it lacks merit. ABB says

that the Contract varies between using “broad” and “narrow” definitions of

“Company.” The narrow definition is used when the Contract expressly

differentiates between “Company” and “Affiliate,” such as when the two terms are

used in the same sentence or paragraph. And the “broad” definition is used,

according to ABB, when the Contract describes the terms of ABB’s products and

services. Those provisions, for the most part, refer only to “Company,” rather than

the “Affiliate.” For instance, the Contract says ABB will provide warranties for its

services to “Company,” but does not include any similar provision for Affiliates.

Similarly, the Contract says “Company” will pay for purchase orders to ABB.

According to ABB, a definition of “Company” that excludes Georgia Power would

render these provisions nonsensical because, for example, only SCS would receive

warranties for work that ABB provides to Georgia Power. Similarly, SCS, and not




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Georgia Power, would have to pay for products and Services ABB provides to

Georgia Power.

      But ABB’s argument overlooks Paragraph 1.3 of the Agreement. That

provision says that any “rights, benefits, discounts, remedies and warranties

accruing to Company . . . likewise accrue to the Affiliates,” and that “[e]ach

Affiliate will be solely responsible for its own transactions, including payment

obligations.” Paragraph 1.3 thus makes clear that any rights and warranties

associated with ABB’s work extend from “Company” to “Affiliates” such as

Georgia Power. A definition of “Company” that refers only to SCS would not,

therefore, preclude Affiliates such as Georgia Power from receiving warranties for

work provided by ABB. Similarly, because Paragraph 1.3 says Affiliates are

solely responsible for their payment obligations, a definition of “Company” that is

limited to SCS would not make SCS responsible for paying off Georgia Power’s

purchase orders. In light of Paragraph 1.3, we reject ABB’s argument that the

Contract used “Company” to refer to both SCS and its Affiliates.

      Because we have determined that the express language of the Contract

unambiguously defines “Company” as SCS, we need not resort to Georgia’s rules

of contract construction. Calhoun, GA NG, LLC v. Century Bank of Ga., 740

S.E.2d 210, 212 (Ga. Ct. App. 2013) (“[W]here the contract terms are clear and

unambiguous, the court will look to that alone to find the true intent of the parties.”


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(quotation marks omitted)). We therefore affirm the district court’s grant of

summary judgment on Georgia Power’s Indemnification Claims.

B. The Insurance Claim

      ABB argues that the district court erred when it granted Georgia Power

summary judgment on its Insurance Claim. That claim alleged ABB breached its

obligation, under the Contract’s insurance provision, to list Georgia Power “as [an]

additional insured[] under” ABB’s liability insurance policies. The Contract’s

insurance clause also says ABB’s insurance obligation is “consistent with [ABB’s]

indemnification obligations.” ABB argues on appeal that because its insurance

obligation was coextensive with its indemnification obligation, the damages

Georgia Power seeks under its Insurance Claim are the same as those sought under

its Indemnification Claims. According to ABB, Georgia Power is not entitled to

summary judgment on its Insurance Claim because it did not show damages

“independent” from the those associated with its Indemnification Claims.

      As an initial matter, ABB did not raise this argument in the district court,

and in fact did not respond at all to the part of Georgia Power’s summary judgment

motion addressing its Insurance Claim. ABB does not contend that this argument

fits into any of the exceptions to our rule prohibiting consideration of arguments

raised for the first time on appeal. See Blue Martini, 816 F.3d at 1349–50.




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Therefore, we hold that ABB waived its argument concerning Georgia Power’s

Insurance Claim.

       Even if we were to consider ABB’s argument, we would reject it because it

is based on the fallacy that a breach of contract claim must allege damages

“independent” from all other claims. While it is true that Georgia law prohibits

“double recovery of the same damages for the same wrong,” Marvin Nix Dev. Co.

v. United Cmty. Bank, 692 S.E.2d 23, 25 (Ga. Ct. App. 2010) (quotation marks

omitted), parties are allowed to proceed on different theories in pursuit of the same

damages, Pope v. Prof’l Funding Corp., 472 S.E.2d 116, 119 (Ga. Ct. App. 1996).

The cases cited by ABB, such as Bates v. JPMorgan Chase Bank, NA, 768 F.3d

1126 (11th Cir. 2014), do not hold to the contrary. Rather, they stand only for the

unremarkable proposition that damages are a required element of any breach of

contract claim. Id. at 1130. 4

                                            IV.

       We AFFIRM the district court’s order granting summary judgment to

Georgia Power on all its claims.




4
  Because we affirm the district court’s grant of summary judgment on Georgia Power’s
Indemnification Claims, we do not address ABB’s separate argument that a reversal as to
Georgia Power’s Indemnification Claims would require reversal on Georgia Power’s Insurance
Claim.


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