October 19, 2012 – Safeway, Inc. v. Rooter 2000 Plumbing and Drain SSS, No. 30,196

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 19, 2012

NO. 30,196

SAFEWAY, INC.,
Defendant/Cross-Claimant-A ppellant,

V.

ROOTER 2000 PLUMBING AND DRAIN SSS,
Defendant/Cross- Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY
Louis E. DePauli, Jr., District Judge

Madison, Harbour & Mroz, P.A.
Gregory D. Steinman

Robert J. Sanchez

Albuquerque, NM

for Appellant

Butt, Thomton & Baehr, P.C.
Emily A. Franke

Jane A. Laflin

Albuquerque, NM

for Appellee

OPINION
VIGIL, Judge.
{1} 	This case requires us to examine which version of New Mexico’s anti-
indemnity statue applies to an agreement between a contractor and a landowner: the
version of the statute that was in force when the parties signed the agreement, or the
amended version that was in force when the contractor performed the work and the
accident occurred. We conclude that the version of the statute that was in effect when
the contract was signed applies and that the statute voided the contractor’s agreement
to indemnify but not its agreement to defend and insure. 	We also conclude that
notwithstanding the unenforceability of the parties’ indemnification agreement,
material issues of fact precluded entry of summary judgment on the landowner’s claim
of common law indemnification. Accordingly, we reverse in part and affirm in part.
I. 	BACKGROUND
{2} 	Safeway, Inc. (Safeway) owns a grocery store in Gallup, New Mexico. 	On
March 10, 2005, Rooter 2000 Plumbing and Drain SSS (Rooter) installed a diaper
changing table in the Safeway store. On April 8, 2006, Brianna DeWeese and her
child (Plaintiffs) were injured when the baby changing table became dislodged and
fell from the wall. 	In an amended complaint, Plaintiffs sued Safeway and Rooter
alleging general negligence, negligence per se, breach of implied warranty, strict

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liability, and a claim under the doctrine of respondeat superior against Safeway.
Safeway demanded a defense from Rooter’s insurance company, but Safeway was not
named by Rooter as an additional insured on its policy, and the insurance company
denied Safeway’s request. 	Rooter also declined to otherwise provide Safeway a
defense.
{3} 	Safeway then filed a cross-claim against Rooter, alleging that Rooter was in
breach 	of 	the 	Standard 	Service 	Provider 	Terms 	and 	Conditions 	Agreement
(Agreement) between them that was in effect when Rooter installed the diaper
changing table. 	Safeway sought indemnification and damages pursuant to the
contract, common law indemnification, and contribution from Rooter. The relevant
provision of the Agreement states:
[Rooter] shall indemnify, defend and hold [Safeway] harmless from and
against: any and all claims, losses, damages, liabilities, and expenses
(including the costs of investigation and attorney’s fees) in connection
with any claim or cause of action arising from any act or omission of
[Rooter,] its employees, agents, and representatives, in the performance
of its obligations under this Agreement, except where the claim, loss or
damage is caused by the sole negligence of [Safeway].
The Agreement also requires Rooter to maintain liability insurance and to name
Safeway as an additional insured on that policy.
{4} 	Rooter and Plaintiffs settled before trial. Rooter filed a motion for summary
judgment in the district court requesting that summary judgment be granted on all of

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Safeway’s cross-claims, asserting that the agreement was void under NMSA 1978,
Section 56-7-1 (1971, as amended through 2005). At the hearing on Rooter’s motion
for summary judgment, Plaintiffs abandoned their strict and vicarious liability claims
against Safeway but retained their claim that Safeway had a non-delegable duty to
maintain safe premises. 	Plaintiffs also represented that they would be willing to
include other Defendants on the special verdict form for comparative fault purposes
and would not require Safeway to pay any percentage of fault assigned by the jury to
Rooter at trial. 	The district court granted Rooter’s motion and dismissed all of
Safeway’s cross-claims. 	Safeway’s claim for common law indemnification was
dismissed because “[t]he Plaintiff is not seeking liability or damages from Safeway
for Rooter’s acts or omissions.” 	The court orally ruled in the hearing that the
agreement to indemnify, defend, and insure was void as against public policy under
Section 56-7-1. The district court did not address which version of the statute it was
applying, nor did it include this in the written order.
{5} 	Safeway and Plaintiffs proceeded to trial on the remaining claims. The jury
found that Safeway was negligent, awarded damages, and apportioned fault on a
special verdict form assigning forty percent fault to Safeway and sixty percent fault
to Rooter. Safeway appeals from the district court order granting summary judgment
to Rooter on Safeway’s cross-claims for indemnification and its defense costs.

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II. 	ANALYSIS
{6} 	Safeway asserts that summary judgment was improper for four reasons: (A) the
2003 amended version of Section 56-7-1 applies to the Agreement because the events
invoking the provisions of the Agreement occurred after 2003; (B) Rooter’s agreement
to indemnify is not barred by Section 56-7-1; (C) the doctrine of common law
indemnification requires Rooter to indemnify Safeway independent of any effect of
Section 56-7-1; and (D) the defense and insurance provisions in the Agreement are not
barred by Section 56-7-1. 	“Summary judgment is appropriate where there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of
law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d
582. All issues raised in this appeal are legal issues, which we review de novo. Id.
A. 	Application of Amended Version of Section 56-7-1
{7} 	In 2003, between the signing of the agreement between Rooter and Safeway and
the relevant events giving rise to Plaintiffs’ lawsuit, Section 56-7-1 was amended.
2003 N.M. Laws, ch. 309, § 1. 	Section 56-7-1 had not been amended since its
enactment in 1971. The original version stated in pertinent part:
Any provision, contained in any agreement relating to the
construction, installation, alteration, modification, repair, maintenance,
servicing, demolition . . . of any real property, or any improvement of
any kind . . . by which any party to the agreement agrees to indemnify

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the indemnitee, or the agents and employees of the indemnitee, against
liability, claims, damages, losses or expenses, including attorney fees,
arising out of bodily injury to persons or damage to property caused by,
or resulting from, in whole or in part, the negligence, act or omission of
the indemnitee, or the agents or employees of the indemnitee, or any
legal entity for whose negligence, acts or omissions any of them may be
liable, is against public policy and is void and unenforceable[.]
Section 56-7-1 (1971) (emphasis added). The statute defined “indemnify” as:
without limitation, an agreement to remedy damage or loss caused in
whole or in part by the negligence, act or omission of the indemnitee, the
agents or employees of the indemnitee, or any legal entity for whose
negligence, acts or omissions any of the foregoing may be liable.
Id.
{8} 	The 2003 version of the statute was amended to state in pertinent part:
A. 	A provision in a construction contract that requires one
party to the contract to indemnify, hold harmless, insure or defend the
other party to the contract, including the other party’s employees or
agents, against liability, claims, damages, losses or expenses, including
attorney fees, arising out of bodily injury to persons or damage to
property caused by or resulting from, in whole or in part, the negligence,
act or omission of the indemnitee, its officers, employees or agents, is
void, unenforceable and against the public policy of the state.
B. 	A construction contract may contain a provision that, or
shall be enforced only to the extent that, it:
(1) 	requires one party to the contract to indemnify, hold
harmless or insure the other party to the contract, including its officers,
employees or agents, against liability, claims, damages, losses or
expenses, including attorney fees, only to the extent that the liability,
damages, losses or costs are caused by, or arise out of, the acts or
omissions of the indemnitor or its officers, employees or agents; or

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(2) 	requires a party to the contract to purchase a project-
specific insurance policy, including an owner’s or contractor’s protective
insurance, project management protective liability insurance or builder’s
risk insurance.
Section 56-7-1(A), (B) (2003) (emphasis added).
{9} 	The 2003 amendment also added that to “indemnify or hold harmless” included
“any requirement to name the indemnified party as an additional insured in the
indemnitor’s insurance coverage for the purpose of providing indemnification for any
liability not otherwise allowed in this section.” Section 56-7-1(E) (2003). The statute
was again amended in 2005 by adding a new subsection dealing with state contracts,
but not changing any other provision. Safeway asserts, and we agree, that those
amendments do not affect the disposition of this case.
{10} 	In Windham v. L.C.I.2, Inc., 2012-NMCA-001, ¶ 8, 268 P.3d 528, we applied
the version of Section 56-7-1 that was in effect when the parties signed the contract,
although the statute had been subsequently amended because the parties did not
dispute that the version of the statute that was in effect at the time of the formation of
the contract controlled. 	Here, however, Safeway argues that although the original
version of Section 56-7-1 was in effect at the time the parties signed the contract, the
version as amended in 2003 applies because that was the version which was in effect
at the time Rooter performed its work and the accident occurred. 	We disagree.

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Rather, we conclude that the version of the statute in effect at the time the contract is
signed governs and explain in greater detail our reasons.
{11} 	Provided that a contract is enforceable, we generally construe it in light of the
law that was in existence at the time the contract was signed, in line with our policy
of enforcing the parties’ intent and justified expectations at the time they made their
agreement. 	See State Farm Mut. Auto Ins. Co. v. Valencia, 120 N.M. 662, 663-64,
905 P.2d 202, 203-04 (Ct. App. 1995) (stating that contracts incorporate the relevant
law in force at the time of their creation); see also Ponder v. State Farm Mut. Auto.
Ins. Co., 2000-NMSC-033, ¶ 11, 129 N.M. 698, 12 P.3d 960 (stating that contract
interpretation has the goal of “ascertaining the intentions of the contracting parties
with respect to the challenged terms at the time they executed the contract” (alteration,
internal quotation marks, and citation omitted).
{12} 	Furthermore, generally statutes are to be applied prospectively, absent a clear
legislative intent to the contrary. See Quintana v. Los Alamos Med. Ctr., 119 N.M.
312, 314, 889 P.2d 1234, 1236 (Ct. App. 1994); see also Wegner v. Hair Prods. of
Tex., 2005-NMCA-043, ¶ 14, 137 N.M. 328, 110 P.3d 544 (“If retroactive application
of a newly enacted law attaches new legal consequences to events completed before
its enactment, substantial rights are affected, and prospective application is generally
required.”). We acknowledge Safeway’s assertion that an exception to the prospective

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application of statutes exists where the statute deals with a “remedial procedure,” but
Safeway makes no argument and cites no authority connecting Section 56-7-1 to a
remedial procedure. We therefore decline to entertain its undeveloped argument for
retroactive application of the statute. 	See Headley v. Morgan Mgmt. Corp.,
2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (stating that we will not review
unclear arguments or guess at what the arguments might be). Rather, we conclude that
it is most appropriate under these circumstances to apply the version of the statute in
effect at the time the parties formed the Agreement.
{13} 	The original version of Section 56-7-1 contained a wholesale prohibition
against indemnity agreements, while the amended version allows parties to contract
for indemnification to compensate an indemnitee for the negligence of the indemnitor.
See Holguin v. Fulco Oil Servs. L.L.C., 2010-NMCA-091, ¶¶ 37-44, 149 N.M. 98, 245
P.3d 42 (concluding that the amended version of Section 56-7-1 allows enforcement
to the extent that the agreement allows indemnification to an indemnitee for an
indemnitor’s negligence, reflecting a change in the law from the prior version of the
statute), cert. granted, 2010-NMCERT-010, 149 N.M. 65, 243 P.3d 1147; see also
Sierra v. Garcia, 106 N.M. 573, 575-76, 746 P.2d 1105, 1107-08 (1987) (applying the
prior version of the statute and refusing to reform an agreement to be enforced only
to the extent of allowing indemnification for the indemnitor’s negligence). Further,

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while the original version of Section 56-7-1 was silent as to agreements requiring one
party to defend or insure another against claims from a third party, the 2003
amendments provide that agreements to defend and insure for the acts of the
indemnitee are void and unenforceable in the same manner as agreements to
indemnify for the same acts. Section 56-7-1(A) (2003).
{14} 	Because 	the 	statute 	added 	that 	agreements 	to 	insure 	and 	defend 	are
unenforceable to the same extent as agreements to indemnify at least to the extent the
agreement purports to indemnify for the acts of the indemnitee, it would undermine
the parties’ justified expectations at the time of the signing of the contract to apply the
amended version of the statute to this case. 	Thus, we conclude that the statute in
effect at the time of the signing of the contract controls, irrespective of the statute’s
subsequent amendment. See, e.g., Windham, 2012-NMCA-001, ¶ 8 (agreeing with the
parties’ stipulation, without deciding, that the version of the anti-indemnification
statute that was in effect at the time of the signing of the contract controlled); Holguin,
2010-NMCA-091, ¶ 40 (applying the version of anti-indemnification statute that was
in effect at the time the contract was signed); K.R. Swerdfeger Constr., Inc. v. Bd. of
Regents, Univ. of N.M., 2006-NMCA-117, ¶ 9, 140 N.M. 374, 142 P.3d 962
(concluding that the version of the Uniform Arbitration Act that was in effect at the
time the contract was signed governed, although the Act had been subsequently

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amended); Bogle Farms, Inc. v. Baca, 1996-NMSC-051, ¶¶ 33-36, 122 N.M. 422, 925
P.2d 1184 (discussing the parties’ reliance on precedent in effect at the time the
contract was signed). We therefore proceed in applying the 1971 version of Section
56-7-1 to the terms of the Agreement between Safeway and Rooter.
B. 	Contractual Indemnification
{15} 	The 1971 version of Section 56-7-1 invalidates all indemnity agreements
relating to construction contracts, whether they indemnify against the indemnitee’s or
the indemnitor’s negligence. 	See Sierra, 106 N.M. at 575-76, 746 P.2d at 1107-08
(concluding that the original version of Section 56-7-1 applied to render agreements
unenforceable 	whether 	they 	were 	for 	indemnity 	for 	the 	indemnitee’s 	or 	the
indemnitor’s negligence). Safeway acknowledges that if the original version of the
statute applies, the indemnification provision in the Agreement is unenforceable. We
agree. We therefore conclude that Rooter had no contractual duty to indemnify under
the Agreement.
C. 	Common Law Indemnification
{16} 	Safeway next argues that even if the agreement to indemnify is unenforceable
under Section 56-7-1, a common law right to “traditional indemnification” exists and
entitles Safeway to indemnification from Rooter. 	Although the cases refer to the
common law right as “traditional indemnification,” we refer to the right as “common

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law indemnification” for clarity. See Otero v. Jordan Rest. Enters., 1996-NMSC-047,
¶ 12, 122 N.M. 187, 922 P.2d 569; In re Consol. Vista Hills Retaining Wall Litig., 119
N.M. 542, 545, 893 P.2d 438, 441 (1995). “[Common law] indemnification grants the
person who has been held liable for another’s wrongdoing an all-or-nothing right of
recovery from a third party, such as the primary wrongdoer.” 	Christus St. Vincent
Reg’l Med. Ctr. v. Duarte-Afara, 2011-NMCA-112, ¶ 14, 267 P.3d 70 (internal
quotation 	marks 	and 	citation 	omitted). 	“The 	purpose 	of 	[common 	law]
indemnification is to allow a party who has been held liable without active fault to
seek recovery from one who was actively at fault.” In re Vista Hills Retaining Wall
Litig., 119 N.M. at 546, 893 P.2d at 442. “Thus the right to indemnification involves
whether the conduct of the party seeking indemnification was passive and not active
or in pari delicto with the indemnitor.” Id. Acting in pari delicto refers to the parties
being “negligent in an equal degree.” 	Trujillo v. Berry, 106 N.M. 86, 87, 738 P.2d
1331, 1333 (Ct. App. 1987) (internal quotation marks and citation omitted). We have
defined active and passive conduct as follows:
Active conduct occurs when the indemnitee personally participated in an
affirmative act of negligence, was connected with negligent acts or
omissions by knowledge or acquiescence, or has failed to perform a
precise duty, which the indemnitee had agreed to perform. 	Passive
conduct occurs when the party seeking indemnification fails to discover
and 	remedy 	a 	dangerous 	situation 	created 	by 	the 	negligence 	or
wrongdoing of another.

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Budget Rent-A-Car Sys., Inc. v. Bridgestone, 2009-NMCA-013, ¶ 12, 145 N.M. 623,
203 P.3d 154 (internal quotation marks and citation omitted).
{17} 	Our Supreme Court discussed the passive/active distinction in a different, but
analogous, circumstance in Otero. In Otero, a restaurant owner had been sued by a
patron who was injured when bleachers in its restaurant collapsed. See 1996-NMSC-
047, ¶¶ 1, 4. The bleachers had been negligently installed by a contractor who was
granted a commercial construction permit by the city, although the contractor was
only licensed for residential construction. See id. ¶ 5. The restaurant owner requested
an instruction allowing the jury to consider the comparative fault both of an architect,
who failed to provide specifications for the bleachers, and of the city, which had
issued the permit to the contractor. See id. The district court denied the instruction.
See id. The Supreme Court first held that the restaurant owner stood in the shoes of
the contractor under the non-delegable duty doctrine. See id. ¶¶ 2, 14. For support,
the Supreme Court cited Restatement (Second) of Torts § 422(b) (1965), which states:
A possessor of land who entrusts to an independent contractor
construction, repair, or other work on the land, or on a building or other
structure upon it, is subject to the same liability as though he had
retained the work in his own hands to others on or outside of the land for
physical 	harm 	caused 	to 	them 	by 	the 	unsafe 	condition 	of 	the
structure . . . [if he has possession of the land while the work is being
completed, or] after he has resumed possession of the land upon its
completion.

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Nevertheless, the Supreme Court concluded that the negligent contractor had no right
to assign fault to the city because it had misrepresented its licensing qualification to
the city in the permitting process and, therefore, the restaurant owner likewise had no
right to apportion fault to the city because it stood in the shoes of the contractor.
Otero, 1996-NMSC-047, ¶ 18.
{18} 	The Supreme Court also concluded that the restaurant owner was not liable to
indemnify concurrent torfeasors for any damages assessed against it because the
restaurant owner was not an active tortfeasor. See id. ¶ 14. The Supreme Court cited
to the Restatement to support its reasoning, which states: “‘Where a person has
become liable with another for harm caused to a third person because of his negligent
failure to make safe a dangerous condition of land[,] . . . which was created by the
misconduct of the other[,] . . . he is entitled to restitution from the other . . . unless
after discovery of the danger, he acquiesced in the continuation of the condition.’” Id.
¶ 13 (quoting Restatement (First) of Restitution § 95 (1937)). The Court concluded
that the restaurant owner was not an active tortfeasor based upon the undisputed
evidence that the bleachers were negligently installed by the contractor and that the
restaurant owner did not discover the unsafe condition. Otero, 1996-NMSC-047, ¶
14.

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{19} 	The Supreme Court thus affirmed the district court’s finding that the restaurant
owner was entitled to indemnification from both the contractor and architect for
whose negligence it was held liable under the non-delegable duty doctrine. See id. ¶
3 n.2. 	Other New Mexico cases have also stated that the determination of the
circumstances under which such indemnification is warranted lies in the distinction
“between one who was negligent ‘. . . in failing to discover and remedy a dangerous
condition . . .’ and one who ‘created’ the dangerous condition.” Harmon v. Farmer’s
Mkt. Food Store, 84 N.M. 80, 82, 499 P.2d 1002, 1004 (Ct. App. 1972) (quoting Rio
Grande Gas Co. v. Stahmann Farms, Inc., 80 N.M. 432, 436, 457 P.2d 364, 368
(1969)).
{20} 	We therefore conclude that a common law right to indemnification exists in
circumstances in which a landowner is held liable for damages as a passive tortfeasor
for failing to discover a dangerous condition on its land created by another tortfeasor.
See In re Vista Hills Retaining Wall Litig., 119 N.M. at 547, 893 P.2d at 443 (stating
that where a party fails to discover and remedy a dangerous situation created by
another, “the conduct of the party not discovering the dangerous condition is
passive”); Spectron Dev. Lab. v. Am. Hollow Boring Co., 1997-NMCA-025, ¶ 19, 123
N.M. 170, 936 P.2d 852 (stating that irrespective of a non-delegable duty to an injured
third party, an employer can generally recover indemnification from a contractor and

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that the non-delegable duty is to prevent an employer from escaping liability by hiring
an independent contractor, and stating “[t]hat rationale, however, hardly justifies
permitting the actual tortfeasor—the contractor—to escape responsibility by denying
the employer the right to indemnification from the contractor”).
{21} 	Here, Plaintiffs represented to the district court that they were seeking damages
under the non-delegable duty doctrine, based on Safeway’s alleged failure to maintain
safe premises. 	Rooter does not dispute that the theory presented to the jury for
Safeway’s negligence was based on the non-delegable duty doctrine, and states that
“[t]he claim against Safeway arose out of Safeway’s duty to keep the premises safe.”
Thus, the parties agree that the jury was presented with a theory against Safeway
under the non-delegable duty doctrine, under which our case law allows for common
law indemnification to passive tortfeasors.
{22} 	Rooter argues that because the jury apportioned fault between Safeway and
Rooter no common law right to indemnification can remain for Safeway to invoke
because it was held liable only for its own negligence. 	We disagree. 	The non-
delegable duty doctrine, like vicarious liability and strict liability, allows the plaintiff
to recover from a party who was not actively at fault. 	See Otero v. Jordon Rest.
Enters., 119 N.M. 721, 723-24, 895 P.2d 243, 245-46 (Ct. App. 1995) (stating that a
landowner has a non-delegable duty irrespective of whether the landowner is at fault),

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aff’d by 1996-NMSC-047; Broome v. Byrd, 113 N.M. 38, 40-41, 822 P.2d 677, 679-
80 (Ct. App. 1991) (same); Restatement (Second) of Torts § 422. However, under
Section 95 of the Restatement (First) of Restitution, the passive tortfeasor retains a
right of recovery from the active tortfeasor for the damages assessed against it,
regardless of his failure to discover the condition. 	See Restatement (First) of
Restitution § 95 cmt. a (“[T]he [indemnitee] is not barred by the fact that he was
negligent in failing to discover or to remedy the defect as a result of which the harm
was occasioned; in most of the cases it is because of this failure that he is liable.”).
Our Supreme Court has explicitly reserved the right of common law indemnification
in spite of rights of “proportional indemnification” and contribution that divide the
fault between co-defendants, because common law indemnification allows a passive
wrongdoer who is not at fault to recover in full from an active tortfeasor who is at
fault. See In re Vista Hills Retaining Wall Litig., 119 N.M. at 545, 553, 893 P.2d at
441, 449 (stating that the doctrine of common law indemnification allows the passive
tortfeasor an “all-or-nothing” right of recovery from the party actively at fault).
{23} 	The fact that the jury apportioned fault between the parties at trial does not strip
away Safeway’s common law right of indemnification to obtain full recovery for
damages assessed against it from Rooter, assuming that Safeway is found by the jury
to be a passive tortfeasor. See NMSA 1978, § 41-3A-1(F) (1987) (stating in statute

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abolishing joint and several liability and adopting comparative fault that “[n]othing
in this section shall be construed to affect or impair any right of indemnity or
contribution arising out of any contract of agreement or any right of indemnity
otherwise provided by law”); Trujillo, 106 N.M. at 87, 738 P.2d at 1332 (stating that
notwithstanding 	New 	Mexico’s 	adoption 	of 	comparative 	fault, 	traditional
indemnification is still available in cases involving vicarious liability or strict liability,
where the liability of the indemnitee arises not from its own fault, but from its
relationship with the party at fault). Contrary to Rooter’s argument, the fact that the
jury apportioned fault to Safeway at trial did not establish whether Safeway was a
passive tortfeasor and entitled to indemnification, because summary judgment was
granted before trial and the jury was not instructed on those theories.
{24} 	We conclude that the question of whether Safeway was an active or passive
tortfeasor should have been presented to the jury. See generally Dessauer v. Mem’l
Gen. Hosp., 96 N.M. 92, 93-94, 628 P.2d 337, 338-39 (Ct. App. 1981) (discussing
indemnification and contribution claims as questions for the jury). Because genuine
issues of material fact existed as to whether Safeway was entitled to common law
indemnification from Rooter for the damages assessed to it by the jury, the district
court improperly granted summary judgment on this issue. 	See In re Vista Hills
Retaining Wall Litig., 119 N.M. at 548-49, 893 P.2d at 444-45 (stating that the

18
Supreme Court could not conclude whether a tortfeasor’s conduct was passive or
active on appeal because the facts were open to contradictory interpretations, and
therefore concluding that the district court improperly granted summary judgment).
{25} 	We also note our conclusion that the right to common law indemnification in
these circumstances is not precluded by Section 56-7-1. In the statute, the Legislature
only addressed “agreements” to indemnify in the construction context, not common
law right to indemnification. 	Further, the common law right to indemnification is
well-defined in our case law and was not addressed by the original statute or any
subsequent amendments. See § 56-7-1 (2005); Sims v. Sims, 1996-NMSC-078, ¶ 23,
122 N.M. 618, 930 P.2d 153 (“We adopt a strict rule that the common law must be
expressly abrogated by a statute because, when determining the meaning of a statute,
courts will often construe the language in light of the preexisting common law. The
common law fills in gaps not addressed by a statute.” (citation omitted)); In re Vista
Hills Retaining Wall Litig., 119 N.M. at 553, 893 P.2d at 449. Because the statute
only applies to agreements to indemnify, it is inapplicable to parties raising the right
of common law indemnification in the absence of an agreement to indemnify.
Likewise, we conclude that a party’s indemnification agreement’s unenforceability
under 	Section 	56-7-1 	has 	no 	effect 	upon 	a 	party’s 	common 	law 	right 	to
indemnification.

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D. 	Duty to Insure and Defend
{26} 	The original version of Section 56-7-1 did not address agreements to defend or
insure. Rather, the statute specifically declared as unenforceable: “Any provision
contained in any [construction related activity] agreement . . . by which any party to
the agreement agrees to indemnify the indemnitee.” Section 56-7-1 (1971). In 2003,
Section 56-7-1 was amended to specifically include an agreement to insure or defend
against the indemnitee’s negligence stating: “A provision in a construction contract
that requires one party to the contract to indemnify, hold harmless, insure or defend
the other party to the contract” against liability for the negligence, acts or omissions
of the indemnitee is unenforceable. Section 56-7-1(A) (2003).
{27} 	The Legislature was capable of including agreements to defend or insure in the
language of the indemnity statute, and did so in 2003. However, when the statute was
enacted in 1971, the Legislature did not include those provisions as being violative of
the public policy of New Mexico. Accordingly, we conclude that the Legislature did
not intend that the original version of the statute apply to agreements to defend or
insure. See Key v. Chrysler Motors Corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-
55 (1996) (“In interpreting statutes, we seek to give effect to the Legislature’s intent,
and in determining intent we look to the language used and consider the statute’s
history and background.”); see also Hart v. Warder, 57 N.M. 14, 15, 252 P.2d 515,

1We note that under the 2003 amendment to the statute, Rooter’s agreement to
provide a defense to Safeway “from and against: any and all claims . . . in connection
with any claim or cause of action arising from any act or omission of [Rooter] . . . in
the performance of its obligations under this Agreement,” is enforceable. 	See
Windham, 2012-NMCA-001, ¶¶ 15-18 (stating that the 2003 version of Section 56-7-1
did not void an agreement to defend a subcontractor when the claims against the
subcontractor arose out of the negligence of the contractor); City of Albuquerque v.
BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶¶ 19-20, 146 N.M. 717, 213
P.3d 1146 (concluding that a contractual provision that required a contractor to defend
the city from any lawsuit alleging that the city was negligent so long as the claim
arose from the contractor’s alleged negligence was enforceable under the amended
version of Section 56-7-1).
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516 (1953) (applying the statutory canon of “[e]xpressio unius est exclusio atlerius,”
meaning the inclusion of one thing implies the exclusion of another, in refusing to
interpret the scope of a statute governing real property to extend to personal property).
Thus, because the original version of the statute applies to the agreement, the defense
and insurance provisions of the agreement are enforceable.1
{28} 	We note that our Supreme Court invalidated a contract which required one party
to “defend at its own cost and indemnify and hold harmless” the other party in Sierra
under the 1971 version of Section 56-7-1. Sierra, 106 N.M. at 575-76, 746 P.2d at
1107-08. However, the issue in Sierra dealt with the indemnitor’s argument that the
contract should be reformed to be consistent with Section 56-7-1 by enforcing it only
to the extent of the indemnitee’s negligence, an argument which the Court rejected
under the language of the 1971 version of the statute. See Sierra, 106 N.M. at 575,

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746 P.2d at 1107-08. Although the Court found the entire contract unenforceable, no
discussion in Sierra addressed the issue of enforceability of agreements to defend, and
we do not consider cases as authority for propositions not raised. See Fernandez v.
Farmers Ins. Co. of Ariz., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993). Furthermore,
since Sierra was decided, we have concluded that an agreement to defend is distinct
and separate from an agreement to indemnify. See BPLW Architects, 2009-NMCA-
081, ¶ 31. We therefore conclude that our interpretation of the 1971 version of the
statute is consistent with Sierra and subsequent New Mexico case law.
{29} 	Furthermore, although Plaintiffs dismissed their strict and vicarious liability
claims against Safeway, Rooter nonetheless had a duty to defend under the contractual
provision for any claims “arising from” the work performed by Rooter, whether they
were vicarious liability claims or other causes of action. See BPLW Architects, 2009-
NMCA-081, ¶¶ 6, 22-24 (concluding that a contractual provision requiring a party to
defend the other for any claims “arising out of” the contractor’s negligence was
triggered by the allegations in the complaint against the city for its negligent failure
to inspect, irrespective of the lack of allegations of vicarious liability claims).
{30} 	With respect to the duty to insure, because the contractual provision was
enforceable, the dismissal of Plaintiffs’ vicarious liability claims also does not resolve
the question of whether that duty was breached and harm resulted to Safeway.

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Accordingly, genuine issues of material fact existed as to Rooter’s duty to defend and
insure, and summary judgment was improperly granted as to those issues.
III. 	CONCLUSION
{31} 	We reverse the district court’s grant of summary judgment with respect to
Safeway’s right to common law indemnification and as to the enforceability of
Rooter’s agreement to defend and insure Safeway and remand for further proceedings
consistent with this opinion. We affirm as to all other issues.
{32} 	IT IS SO ORDERED.
_________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

CELIA FOY CASTILLO, Chief Judge

CYNTHIA A. FRY, Judge

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