July 19, 2010 – Danny Holguin v. Fulco Oil Services, L.L.C., 3-K Oil and Gas Services, L.L.C. and Southern Union Gas Services, Ltd. v. Ruth Elkins, d/b/a Projects, Etc., No. 29,149

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: July 19, 2010
NO. 29,149
DANNY HOLGUIN,
Plaintiff,
v.
FULCO OIL SERVICES L.L.C.,
3-K OIL AND GAS SERVICES, L.L.C.,
Defendants/Appellees.
SOUTHERN UNION GAS SERVICES, LTD.,
Defendant/Third-Party Plaintiff/Appellant,
v.
RUTH ELKINS d/b/a PROJECTS, ETC.,
Third-Party Defendant/Appellee.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Gary L. Clingman, District Judge
Anna E. McDowell
Larry D. Beall
Albuquerque, NM
for Appellee Fulco Oil Services, L.L.C.

Madison, Harbour & Mroz, P.A.
Robert J. Mroz
Jennifer L. Collins
Albuquerque, NM
for Appellee 3-K Oil and Gas Services, L.L.C.
Scott Hulse P.C.
R. Glenn Davis
Michael D. Stell
El Paso, TX
for Appellant Southern Union Gas Services, Ltd.
Law Office of Paul S. Grand
Paul S. Grand
Santa Fe, NM
for Appellee Ruth Elkins

OPINION
VANZI, Judge.
{1} 	At issue in this appeal is the scope and interpretation of New Mexico’s oilfield
and construction anti-indemnity statutes. Appellant appeals the district court’s grant
of summary judgment in favor of Appellees. The district court held that the indemnity
clauses in the service contracts between Appellant and Appellees whereby Appellees
agreed to indemnify Appellant against all claims, even where the claim was based in
part on the negligence of the Appellant, were in violation of New Mexico’s oilfield
and construction anti-indemnity statutes and were, therefore, void as against public
policy. We reverse in part and affirm in part.
BACKGROUND
{2} 	The following facts are not in dispute. 	Appellant, Southern Union Gas
Services, Ltd. (Southern Union) owns and operates a gas processing facility in Lea
County, New Mexico. 	Appellees, Fulco Oil Services, L.L.C., 3-K Oil and Gas
Services, L.L.C., and Ruth Elkins, d/b/a Projects, Etc. (collectively, the Contractors)
were hired by Southern Union as subcontractors to perform work at Southern Union’s
processing plant. Each Contractor entered into a “Service Contract” with Southern
Union that detailed the terms of their agreement.
{3} 	Each Service Contract contains an indemnity clause whereby the Contractors

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agreed to indemnify Southern Union
against all claims, damages, losses, liens, causes of action, suits,
judgments[,] and expenses, including attorney fees . . . of any person . . .
arising out of, caused by or resulting from the performance of the work
. . . caused in whole or in part by any act or omission, including
negligence, of the contractor . . . even if it is caused in part by the
negligence or omission of any indemnitee.
{4} 	Southern Union’s processing plant receives gas from a number of separate gas
wells through a series of pipelines. At the plant, the gas is run through a pressurized
system called a “slug catcher” that removes condensate and other particulates from the
gas. The slug catcher requires periodic cleaning in order to maintain its functionality.
Danny Holguin, an employee of one of the Contractors, brought a personal injury
lawsuit against Southern Union and two of the Contractors, alleging that he sustained
injuries at Southern Union’s processing plant in an accident that occurred during the
cleaning of the slug catcher. Mr. Holguin’s suit ultimately settled and is not a part of
this appeal.
{5} 	In response to Mr. Holguin’s suit, Southern Union filed claims against the
Contractors pursuant to the indemnity clauses in the Service Contracts, seeking
indemnity from the Contractors on Mr. Holguin’s claims against Southern Union. The
Contractors filed separate motions for summary judgment, arguing that the indemnity
clauses were void and unenforceable under New Mexico anti-indemnity statutes
NMSA 1978, Section 56-7-1 (2005) (the construction anti-indemnity statute) and

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NMSA 1978, Section 56-7-2 (2003) (the oilfield anti-indemnity statute). The district
court granted summary judgment in favor of the Contractors, holding that the
indemnity clauses were void and unenforceable under both statutes and that to rule
otherwise would be against the public policy of New Mexico.
{6} 	Southern Union appeals the district court’s decision arguing that neither anti-
indemnity statute applies to the circumstances of this case because neither the Service
Contracts nor the work being performed at the time of the accident fall within the
scope of the statutes. 	Alternatively, Southern Union argues that if the statutes do
apply, Southern Union is still free to seek indemnification against the negligence of
the Contractors and, therefore, the relative percentages of negligence of the
Contractors and Southern Union must be determined by an appropriate fact finder.
We address each of Southern Union’s arguments in turn.
DISCUSSION
I. 	Standard of Review
{7} 	“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. “On appeal
from the grant of summary judgment, we ordinarily review the whole record in the
light most favorable to the party opposing summary judgment to determine if there is
any evidence that places a genuine issue of material fact in dispute.” 	City of

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Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7, 146 N.M.
717, 213 P.3d 1146. However, in a case “where a pure question of law is at issue, we
will not review a grant of summary judgment in the light most favorable to the party
opposing the motion[,]” but rather, we will apply a de novo standard of review that
favors neither party. Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8, 133 N.M.
756, 69 P.3d 1199.
II. 	Construction of Anti-Indemnity Statutes
{8} 	Southern Union argues that the anti-indemnity statutes should be strictly
construed. In support of its argument, Southern Union relies on several out-of-state
cases that hold that anti-indemnity statutes must be strictly construed because such
statutes restrict the freedom of contract. Additionally, citing Wilschinsky v. Medina,
108 N.M. 511, 516, 775 P.2d 713, 718 (1989), for the principle that strict statutory
construction must be applied to acts passed in derogation of the common law,
Southern Union asserts that because freedom of contract is a common law doctrine
and the anti-indemnity statutes restrict that doctrine, the anti-indemnity statutes should
be strictly construed to effect the least change in the common law.
{9} 	This Court has previously had the opportunity to address the enforceability of
indemnity provisions in a contract, as well as the concomitant relationship between
the public policy favoring freedom of contract and the public policy embodied in New
Mexico’s anti-indemnity statutes. Piña v. Gruy Petroleum Mgmt. Co., 2006-NMCA-

5
063, ¶ 13, 139 N.M. 619, 136 P.3d 1029. In Piña, our discussion was limited to the
oilfield anti-indemnity statute, id. ¶ 1, however, our reasoning in that case applies
equally well to both of the anti-indemnity statutes at issue in the present case because
both statutes contain similar exceptions to the policy favoring freedom of contract.
{10} 	We have observed that the public policy embodied in both the oilfield and
construction anti-indemnity statutes is to promote safety in uniquely hazardous work
place environments. 	See Guitard v. Gulf Oil Co., 100 N.M. 358, 361-62, 670 P.2d
969, 972-73 (Ct. App. 1983) (noting that the public policy behind the oilfield
anti-indemnity statute is to promote public safety by not allowing the operator of a
well or mine to delegate to subcontractors the duty to ensure that the well or mine is
safe); City of Albuquerque, 2009-NMCA-081, ¶ 19 (stating that the purpose of the
construction anti-indemnity statute is to promote “safety in construction projects by
holding each party to the contract accountable for injuries caused by its own
negligence”).
{11} 	In Piña, we noted that by enactment of the anti-indemnity statutes, our
Legislature had directly addressed the conflict between policies generally favoring
freedom of contract and policies favoring safety at work sites within the scope of the
anti-indemnity statutes. 	Piña, 2006-NMCA-063, ¶ 17. 	We concluded that the
Legislature had “expressly determined that in this particular context, freedom of
contract was to be subordinated to the policies furthered by the [o]ilfield [a]nti-

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[i]ndemnity [s]tatute.” Id. Accordingly, in this case, we construe the anti-indemnity
statutes first with a view toward furthering the public policy of safety embodied in the
statutes and, as a secondary matter, in light of the public policy favoring freedom of
contract.
III. 	Applicability of Anti-Indemnity Statutes in the Present Case
A. 	Terms of the Contracts
{12} 	Southern Union argues that for the purpose of determining whether either of the
anti-indemnity statutes bar it from seeking indemnity from the Contractors, we should
focus on the terms specified in the Service Contracts, not on the activity being
performed at the time of the accident. 	Southern Union points out that the Service
Contracts entered into between it and the Contractors specify only that “COMPANY
engages the CONTRACTOR as an independent contractor to furnish equipment and
perform services, hereinafter called ‘Work’; and, WHEREAS, CONTRACTOR
represents that it has adequate equipment in good working order and fully trained
personnel capable of efficiently operating such equipment and performing the
requested services[.]” Southern Union argues that the only service specified in the
Service Contracts is “work” of an undefined nature, and the Service Contracts do not
specifically mention gas wells, oil wells, or construction; therefore, the oilfield and
construction anti-indemnity statutes do not operate to void the indemnification clauses
in the contracts. We disagree.

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{13} 	In support of its contention, Southern Union relies on several out-of-state cases
in which various courts have held that Mississippi’s anti-indemnity statute was not
applicable to various types of contracts. Lorenzen v. South Cent. Bell Tel. Co., 546
F.Supp. 694, 697 (S.D. Miss. 1982) (holding that the Mississippi anti-indemnity
statute relating to construction contracts did not apply because the agreement at issue
was a licensing agreement, not a construction contract); see also City of Jackson v.
Filtrol Corp., 624 F.2d 1384, 1389 (5th Cir. 1980) (holding that the Mississippi anti-
indemnity statute did not apply to an agreement to create an easement); Heritage
Cablevision v. New Albany Elec. Power Sys., 646 So.2d 1305, 1311 (Miss. 1994)
(holding that the Mississippi anti-indemnity statute did not apply to a licensing
agreement).
{14} 	We note that the cases cited by Southern Union are distinguishable from the one
before us. In those cases, the courts did not consider the type of work specified in the
contract but instead held that the Mississippi statutes did not apply to the specific
types of contracts at issue: licensing agreements and agreements for easements. None
of the cases cited by Southern Union dealt with service contracts and, unlike licensing
and easement agreements, the Service Contracts in the present case might easily be
expected to encompass construction-related work or work at oil wells. 	Such a
determination would necessarily bring the contracts within the scope of New Mexico’s
anti-indemnity statutes.

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{15} 	In Piña, this Court analyzed an oilfield services contract in which the
subcontractor merely “agreed to perform work at an oil well site.” 2006-NMCA-063,
¶ 3. The generic nature of the work specified in the contract did not prevent us from
determining that the anti-indemnity statute applied to the facts of that case. As the
Louisiana Court of Appeals observed in Ridings v. Danos & Curole Marine
Contractors, Inc., 723 So.2d 979, 983 (La. Ct. App. 1998), it is customary in the oil
and gas industry to use master “service contracts” that do not specifically identify the
work or service to be performed. Rather, such contracts “refer in general terms to the
need by one party for labor, services or materials, and the desire on the part of the
other to furnish same. Specific services are later called for under the master service
agreement by work orders, purchase orders or simply invoices.” Id. at 983.
{16} 	We also note that while the contracts in the present case are not specific as to
the type of work to be performed, none of the parties dispute that the work being
performed at the time of the accident was the type of work contemplated by the
contracts. Considering that these types of generic contracts exist and are common in
the very industries that our anti-indemnity statutes are designed to address, we
conclude that it would not further the Legislature’s intent in enacting the anti-
indemnity statutes to exclude an agreement from the scope of those statutes simply
because the agreement did not specifically define the type of work to be performed.
Therefore, where a contract is so generic in nature that it is not possible to determine

9
the type of work to be performed from the contract itself, we must look past the
contract to the nature of the work being performed at the time of the accident in order
to resolve whether the circumstances of a given case are within the scope of the anti-
indemnity statutes. To hold otherwise would permit Southern Union to circumvent
the anti-indemnity statutes simply by choosing not to define in its contracts the precise
nature of the work to be performed. This is clearly not what the Legislature intended
when it enacted the anti-indemnity statutes.
B. 	Applicability of the Oilfield Anti-Indemnity Statute
{17} 	Southern Union argues that even if we look beyond the terms of the contract
and consider the work being performed by the Contractors at the time of the accident,
the oilfield anti-indemnity statute does not apply because that work did not pertain to
an oil or gas well as required by the statute. We agree.
{18} 	The oilfield anti-indemnity statute states that it is applicable to agreements
“concerning any operations related to drilling, deepening, reworking, repairing,
improving, testing, treating, perforating, acidizing, logging, conditioning, altering,
plugging or otherwise rendering services in connection with a well drilled for the
purpose of producing or disposing of oil, gas or other minerals or water . . . or an act
collateral thereto.” Section 56-7-2(B).
{19} 	Southern Union argues that the maintenance operation on the slug catcher was
not located at a well site and was not related to, or collateral to, any type of well

10
operations defined in the statute. The Contractors on the other hand argue that a broad
interpretation of the statute would bring the activities at the time of the accident within
the scope of the statute. In support of their position, the Contractors urge us to look
to a number of decisions from Louisiana courts that interpret the Louisiana anti-
indemnity statute to apply in circumstances similar to those at issue in the present
case. We note, however, that the scope of Louisiana’s statute is significantly different
from the scope of the New Mexico statute. The Louisiana statute states that it includes
agreements “concerning any operations related to the exploration, development,
production, or transportation of oil, gas, or water[.]” LSA-R.S. 9:2780(C). Unlike
Louisiana’s statute, the New Mexico statute does not include any activities related to
the distribution or transportation of oil and gas. 	See § 56-7-2(B). 	Because of the
significant differences between our oilfield anti-indemnity statute and that of
Louisiana, we do not find the Louisiana cases cited by the Contractors to be
instructive in reaching our decision in this matter.
{20} 	The Contractors further argue that we should interpret the phrases “otherwise
rendering services in connection with a well,” Section 56-7-2(B)(1), and “or an act
collateral thereto,” Section 56-7-2(B)(3), as encompassing a much broader scope than
the production activities at the well head. 	We are not persuaded that the broad
interpretation suggested by the Contractors is warranted in this circumstance.
{21} 	In interpreting statutory provisions, the guiding principle should be to determine

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and give effect to the intent of the Legislature. 	Hovet v. Allstate Ins. Co., 2004-
NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69. The primary indicator of legislative
intent is the plain language of the statute. Gen. Motors Acceptance Corp. v. Anaya,
103 N.M. 72, 76, 703 P.2d 169, 173 (1985).
{22} 	Where applicable, New Mexico courts have long followed the doctrine of
ejusdem generis to assist in construing the language of statutes. Lucero v. Richardson
& Richardson, Inc., 2002-NMCA-013, ¶ 18, 131 N.M. 522, 39 P.3d 739 (filed 2001).
The ejusdem generis doctrine states that “where general words follow an enumeration
of persons or things of a particular and specific meaning, the general words are not
construed in their widest extent but are instead construed as applying to persons or
things of the same kind or class as those specifically mentioned.” State v. Foulenfont,
119 N.M. 788, 791, 895 P.2d 1329, 1332 (Ct. App. 1995) (internal quotation marks
and citation omitted). 	“In applying this doctrine, we look to the specific terms
employed and seek the common characteristics among them, excluding anything that
does not share those characteristics.” Lucero, 2002-NMCA-013, ¶ 18. In Lucero for
example, we held that the statutory language “hunting, fishing, trapping, camping,
hiking, sightseeing or any other recreational use” did not include a little league
baseball game because the preceding list only included “activities pursued in
wilderness areas” and did not include any organized, competitive sports. Id. ¶¶ 18-19
(internal quotation marks and citation omitted).

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{23} 	In the present case, the activities listed in the statute, “drilling, deepening,
reworking, repairing, improving, testing, treating, perforating, acidizing, logging,
conditioning, altering, plugging,” are all production activities performed at the well
head. The list does not include any activities related to the distribution, processing,
or transportation of the oil or gas. Furthermore, interpreting the statute to apply to all
services rendered in connection with a well, as suggested by the Contractors, renders
the specific list of activities superfluous. If the Legislature intended for the statute to
apply to all services rendered in connection with a well, there would be no need to
include the specific list of activities in subsection B. Construing the statute in this
manner is inconsistent with the rules of statutory interpretation that require that “[a]
statute must be construed so that no part of the statute is rendered surplusage or
superfluous.” Katz v. N.M. Dep’t of Human Servs., 95 N.M. 530, 534, 624 P.2d 39,
43 (1981).
{24} 	Applying the ejusdem generis doctrine to subsection B of the oilfield anti-
indemnity statute, we conclude that the Legislature did not intend the more general
language of “otherwise rendering services in connection with a well” and “or an act
collateral thereto” to expand the scope of the statute to include activities away from
the drilling site. Rather, the Legislature intended that the general language be limited
to production activities at the well head, i.e., the same types of activities as those in
the specific listing.

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{25} 	In the present case, the slug catcher is not located at a well site, nor is it a part
the production activities associated with a well head. The slug catcher is a part of the
processing system that renders the gas ready for market. We therefore conclude that
the maintenance operation on the slug catcher is not within the scope of the oilfield
anti-indemnity statute. We reverse the district court’s grant of summary judgment in
favor of the Contractors on this issue.
C. 	Applicability of the Construction Anti-Indemnity Statute
{26} 	Southern Union also argues that, looking beyond the terms of the contract and
considering the work being performed by the Contractors at the time of the accident,
the construction anti-indemnity statute does not apply because the work being
performed at the time of the accident did not involve construction work as defined by
the statute. 	We disagree with Southern Union and hold that the construction anti-
indemnity statute does apply in this case.
{27} 	The construction anti-indemnity statute states that it applies to provisions in
construction contracts. Section 56-7-1(A). The statute defines construction contract
to be a “contract or agreement relating to construction, alteration, repair or
maintenance of any real property in New Mexico and includes agreements for . . .
other improvement to real property, including buildings, shafts, wells and structures,
whether on, above or under real property.” Section 56-7-1(E).
{28} 	The Contractors argue that the construction anti-indemnity statute applies to the

14
circumstances in this case because the slug catcher is a structure on real property, and
the operation being performed at the time of the accident constituted maintenance of
that structure. 	The Contractors further state that the operation, i.e., the periodic
removal of particulate matter from the slug catcher, was necessary maintenance, and
was required to keep the slug catcher operating properly and in a good state of repair.
{29} 	Southern Union does not dispute that the slug catcher is a “structure” within the
meaning of the statute. 	Southern Union also does not dispute that the work being
performed at the time of the accident was required to keep the slug catcher working
properly. Southern Union does assert, however, that the operation being performed
on the slug catcher at the time of the accident was not maintenance as contemplated
by the statute. Southern Union argues that the term maintenance as used in the statute
is limited to maintenance that is required during a construction project “such as the
maintenance of an existing structure while remodeling is taking place or the
replacement of an old roof.”
{30} 	As we have observed above, the primary indicator of legislative intent is the
plain language of the statute. Anaya, 103 N.M. at 76, 703 P.2d at 173. “To determine
the intent of the Legislature, our first step is to look at the language used by the
Legislature and the plain meaning of that language.” 	Martinez v. Cornejo, 2009-
NMCA-011, ¶ 11, 146 N.M. 223, 208 P.3d 443. “[W]here there is no ambiguity in
the plain language of a statute, and where no absurd or unreasonable result will occur,

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we apply the plain meaning rule and refrain from further statutory construction.” Id.
{31} 	We see nothing in the plain language of the construction anti-indemnity statute
that would suggest that the Legislature intended to limit the statute’s application solely
to maintenance operations that are required during a construction project. The statute
merely states that “construction contract means a . . . contract or agreement relating
to construction, alteration, repair or maintenance.” Section 56-7-1(E). The statute in
no way limits the scope of the term maintenance to anything other than its plain
meaning. 	Accordingly, looking to the plain language of the statute, we apply the
ordinary meaning of the word maintenance to the circumstances of this case.
{32} 	Black’s Law Dictionary 973 (8th ed. 2004) defines maintenance as “[t]he care
and work put into property to keep it operating and productive; general repair and
upkeep.” 	Merriam-Webster’s Collegiate Dictionary 702 (10th ed. 1996) defines
maintenance as “the act of maintaining” and further defines maintain as “to keep in
an existing state (as of repair, efficiency, or validity): 	preserve from failure or
decline.” Based on these definitions of the word maintenance, we conclude that work
on an improvement to real property that is required to keep that improvement in a
good state of repair and operating properly is within the scope of the construction anti-
indemnity statute.
{33} 	Southern Union also argues that the operation on the slug catcher was not
maintenance at all but instead was merely a cleaning operation. 	Southern Union

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compares the operation being performed on the slug catcher at the time of the accident
to general janitorial services such as sweeping and mopping floors, vacuuming
carpets, or removing trash from offices. Based on this comparison, Southern Union
argues that the construction anti-indemnity statute does not apply because the
Contractors were supplying janitorial services, not construction services. Southern
Union relies on a number of out-of-state cases in which courts have held that a variety
of construction anti-indemnity statutes do not apply to janitorial services.
{34} 	In the present case, the system being cleaned and serviced was a large
pressurized system that was an integral part of the gas processing function of a gas
production facility. The slug catcher is designed to receive gas through a series of
extensive pipelines and to remove condensate and other particulates contained in the
gas so that the gas can be properly processed for market. It is uncontested that without
regular cleaning, the slug catcher would be rendered inoperable. We disagree with
Southern Union that the regular maintenance and cleaning of such a system equates
to a janitorial service such as trash removal and mopping floors.
{35} 	Because the slug catcher is a structure on real property and the operation being
performed at the time of the accident constituted maintenance of that structure, we
conclude that the district court properly held that the maintenance operation on the
slug catcher falls within the scope of the construction anti-indemnity statute.
IV. 	Effect of the Construction Anti-Indemnity Statute on the Indemnity

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Clauses
{36} 	Southern Union argues that even if one or both of the anti-indemnity statutes
apply in the present case, those statutes only preclude enforcement of the indemnity
clauses in the Service Contracts to the extent that those clauses require the Contractors
to indemnify Southern Union for Southern Union’s own negligence. Southern Union
asserts that the anti-indemnity statutes do not prohibit it from seeking indemnification
from the Contractors for the Contractors’ negligence. 	Based on this assertion,
Southern Union argues that a determination of the relative percentages of negligence
of the Contractors and Southern Union must be made by an appropriate fact finder
and, therefore, summary judgment was inappropriate.
{37} 	The 	construction 	anti-indemnity 	statute 	states 	that 	“[a] 	provision 	in 	a
construction contract that requires one party to the contract to indemnify . . . the other
party . . . against liability . . . caused by or resulting from, in whole or in part, the
negligence . . . of the indemnitee . . . is void, unenforceable and against the public
policy of the state.” Section 56-7-1(A). The statute goes on to state, however, that a
construction contract may contain a provision that requires one party to indemnify the
other party against the indemnifying party’s own negligence. Section 56-7-1(B). The
statute further states that an indemnity provision with a greater scope shall only be
enforced to the extent permitted by Section 56-7-1.
{38} 	Where several sections of a statute are at issue, all sections must be read

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together so that all parts are given effect, including amendments. High Ridge Hinkle
Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d
599. Reading subsections A and B of the construction anti-indemnity statute together
and attempting to give meaning to all parts, we determine that the Legislature intended
the language in subsection A, i.e., declaring a provision that requires indemnification
for the indemnitee’s own negligence to be void and unenforceable, to refer to that
particular provision within the indemnity clause not the entire indemnity clause. To
hold otherwise would render meaningless the language in subsection B that states that
an indemnity provision shall only be enforced to the extent permitted by Section 56-7-
1(B), because any indemnity clause requiring greater indemnification than permitted
by subsection B would already have been held to be unenforceable under subsection
A. Accordingly, we conclude that the Legislature intended that subsection B render
enforceable 	remaining 	provisions 	in 	an 	indemnity 	clause 	that 	provide 	for
indemnification against the indemnitor’s negligence.
{39} 	The indemnity clause in each Service Contract states that the Contractors will
indemnify Southern Union against all claims arising out of the performance of the
Contractor’s work “caused in whole or in part by any act or omission, including
negligence, of the Contractor, . . . even if it is caused in part by the negligence or
omission of any indemnitee.” As we have held above, the last segment of this clause
violates Section 56-7-1(A) by requiring the Contractors to indemnify Southern Union

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for Southern Union’s own negligence, therefore, that provision of the indemnity
clause is void and unenforceable. Under Section 56-7-1(B), however, the remainder
of the indemnity clause that provides that the Contractors will indemnify Southern
Union for claims based on the Contractors’ negligence is enforceable.
{40} 	Citing Sierra v. Garcia, 106 N.M. 573, 575, 746 P.2d 1105, 1107 (1987), the
Contractors argue that because the indemnity clauses in the Service Contracts seek in
part to indemnify Southern Union for its own negligence, the clauses must be held to
be void and unenforceable in their entirety. In Sierra, our Supreme Court declined to
reform an indemnification clause to excise language that required indemnification for
the indemnitee’s own negligence in violation of Section 56-7-1. Sierra, 106 N.M. at
576, 746 P.2d at 1108. We note, however, that the Court in Sierra was interpreting
the 1971 version of the statute, which did not include the language contained in
Section 56-7-1(B) of the current version. 	See Sierra, 106 N.M. at 574, 746 P.2d at
1106. 	Section 56-7-1(B) was added as part of the 2003 amendments to the
construction anti-indemnity statute. In the present case, the parties entered into the
Service Contracts at issue in 2005 and 2006; therefore, the Service Contracts are
governed by the 2003 version of the statute. As we have discussed above, Section 56-
7-1(B) specifically permits enforcement of an indemnity clause to the extent that it
provides for indemnification from the indemnifying party’s negligence. Additionally,
we observe the strong dissents in Sierra by Justice Ransom and Justice Walters

20
arguing that the indemnification agreement was only “void and unenforceable as to
liability for indemnitee’s own percentage of negligence.” 106 N.M. at 576-77, 746
P.2d at 1108-09.
{41} 	Interpreting the anti-indemnity statute to permit enforcement of an indemnity
clause, to the extent the clause requires indemnification for the indemnitor’s
negligence, is also in keeping with prior New Mexico case law in this area.
{42} 	In Guitard, this Court held that the oilfield anti-indemnity statute did not
prohibit an indemnity clause in which a party sought indemnity from another party’s
negligence, even where the indemnitee was concurrently negligent. 100 N.M. at 362,
670 P.2d at 973. In that case, we held that the language in Section 56-7-2(A) “which
makes void and unenforceable any agreement which purports to indemnify an
indemnitee for injuries or death arising from the . . . concurrent negligence of the
indemnitee means only that the indemnitee cannot contract away liability for his own
percentage of negligence.” Guitard, 100 N.M. at 361, 670 P.2d at 972 (alteration in
original) (internal quotation marks and citation omitted). We specifically rejected an
interpretation of the statute by which an indemnity agreement would be found to be
void if the indemnitee was concurrently negligent. Id. We noted that by so holding,
“[b]oth the operator and the subcontractor will have incentive to monitor the safety
of the operation knowing that they will be responsible for their respective percentage
of negligence[]” thereby furthering two important public policies: 	the policy of

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promoting safety at the work site and the policy favoring freedom of contract. Id. at
362, 670 P.2d at 973. The opinion construes the 1971 version of the statute; however,
there is nothing in the subsequent amendments to the statute that would change our
analysis.
{43} 	More recently in City of Albuquerque, we held that a contractor was required
to indemnify and defend the City of Albuquerque, pursuant to an indemnification
clause in the contract between the parties, for any cause of action arising out of the
contractor’s performance of the contract. 2009-NMCA-081, ¶ 20. We concluded that
requiring the contractor to indemnify and defend the City for the contractor’s alleged
negligence does not violate the construction anti-indemnity statute or the policy
behind it. Id. We held that such an interpretation of the contract was consistent with
the requirements of the statute because the construction anti-indemnity statute is based
on “a public policy promoting safety in construction projects by holding each party
to the contract accountable for injuries caused by its own negligence.” Id. ¶¶ 19-20.
{44} 	Based on the language of the current construction anti-indemnity statute and
New Mexico case law, we hold that the indemnity clauses in the Service Contracts can
be enforced to the extent that those clauses require the Contractors to indemnify
Southern Union for liability arising out of the Contractors’ negligence. 	Because
Southern Union and the Contractors settled the claims brought against them by Mr.
Holguin, the respective percentages of negligence of the parties have not been

22
adjudicated. In order to enforce the indemnity clauses as to negligence on the part of
the Contractors, a determination by an appropriate fact finder of the parties’ respective
percentages of liability is required. Accordingly, we remand for a determination of
the respective liabilities of the parties.
CONCLUSION
{45} 	For the reasons set forth above, we reverse the district court’s order granting
summary judgment under the oilfield anti-indemnity statute. We affirm the district
court’s decision granting summary judgment under the construction anti-indemnity
statute. We remand the case for further proceedings consistent with this opinion.
{46} 	IT IS SO ORDERED.
__________________________________
LINDA M. VANZI, Judge
WE CONCUR:
_______________________________
RODERICK T. KENNEDY, Judge
_______________________________
TIMOTHY L. GARCIA, Judge