Judge hears competing summary-judgment arguments in Smith v. S & W Plumbing over OCGA §51-2-5; court will review contracts and issue order

In a contested summary-judgment hearing in Doug Smith v. S & W Plumbing LLC (and related CCOM/Clayton Properties defendants), Clayton County State Court heard extensive argument over whether Georgia Code O.C.G.A. §51‑2‑5 prevents a contractor from shifting liability for subcontractor work to a general contractor.

Erin McGonigal, representing S & W Plumbing and related defendants, argued the master services agreement between the general contractor (CCOM/Clayton Properties) and S & W expressly allocated the plumbing contractor’s work and risk to the subcontractor and that under Georgia precedent and the statute a general contractor is not liable for an independent subcontractor unless a statutory exception applies. McGonigal said plaintiff provided no evidence showing an exception applied and noted S & W accepted a tender that morning.

Plaintiff counsel Eric Miller argued the statutory exceptions to the rule that contractors are not liable for their subcontractors (O.C.G.A. §51‑2‑5) are central and “the exceptions swallow up the rule,” asserting exception No. 3 (violation of a duty imposed by express contract on the employer) applied in the context of the homeowner–contractor relationship and that questions of duty could require a jury.

The judge questioned counsel about the nature of the alleged installation failure (engineers had concluded installation error) and the scope of contractual duties between general contractor and subcontractor. She said she will “look at both contracts” and decide whether a legal duty exists as a matter of law or whether issues must go to a jury; the judge indicated she would prepare and issue an order after reviewing the contracts and case law.

No final ruling was announced at the hearing; the court discussed remaining procedural items and case scheduling during closing remarks.