[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14160 ________________________

D.C. Docket No. 1:17-cv-01721-SCJ

EMORY UNIVERSITY, INC., d.b.a. Emory University Hospital, THE EMORY CLINIC, INC., Plaintiffs-Appellants,

versus NEUROCARE, INC.,

Defendant-Appellee.

__________________________

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

(January 25, 2021) Before WILSON, NEWSOM, and ANDERSON, Circuit Judges. USCA11 Case: 19-14160 Date Filed: 01/25/2021 Page: 2 of 27

ANDERSON, Circuit Judge:

We consider two discrete issues under Georgia law pertaining to an indemnification obligation arising from a tragic death at a sleep disorder treatment and diagnostics lab. Emory University, Inc. (“Emory University”) seeks indemnification from Neurocare, Inc. (“Neurocare”), the lab services provider whose technologists were found by a jury to be 60 percent at fault for the death of Brandon Harris. The first issue is whether Emory University is entitled to indemnification from Neurocare for this 60 percent liability incurred due to the negligence of Neurocare’s technologists. Emory University asserts this right to indemnity pursuant to the services contract as an “affiliate” of its wholly, indirectly owned grandchild corporation, the express indemnitee and the hospital, Wesley Woods Center of Emory University, Inc. (“Wesley Woods”). The second issue is whether Emory University, even if it would otherwise be entitled to contractual or common law indemnification, is barred from indemnity because it failed to assert its distinct and separate corporate existence as a defense to liability in the underlying wrongful death action. This second issue requires us to consider a line of Georgia case law holding that indemnification is barred if the would-be indemnitee had, but failed to assert, in the underlying suit a “defense available which would have defeated the action.” GAF Corp. v. Tolar Constr. Co., 246 Ga. 411, 411, 271 S.E.2d 811, 812 (1980) (citation omitted).

2 USCA11 Case: 19-14160 Date Filed: 01/25/2021 Page: 3 of 27

After careful review, and with the benefit of oral argument, we vacate the district court’s grant of summary judgment in Neurocare’s favor and remand. We conclude that Emory University is an “affiliate” of Wesley Woods, and that the indemnification bar doctrine does not operate in the unique facts of this case.

I. BACKGROUND

A. The Parties, the Agreement, and the Amendment

A group of entities bearing the “Emory” name provided sleep disorder diagnostic and treatment services. The most superior entity is Emory University, which wholly owns and controls Emory Healthcare, Inc., which, in turn, wholly owns and controls Wesley Woods. Emory University also wholly owns and controls The Emory Clinic, Inc. (the “Emory Clinic”). Emory University Hospital is an operating division of Emory University.

In June 2005, Emory University entered into a Sleep Diagnostic Services Agreement (the “Agreement”) with Neurocare. Neurocare doing business as the Center for Sleep Diagnostics, defined as “CONTRACTOR,” agreed “to provide certain sleep diagnostic services to and under the direction of HOSPITAL,” defined as Emory University doing business as Emory University Hospital. Neurocare agreed to operate the Emory S