1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-009

Filing Date: February 18, 2016

Docket No. S-1-SC-33969

SAFEWAY, INC.,

Defendant/Cross-Claimant-Respondent,

v.

ROOTER 2000 PLUMBING AND DRAIN SSS,

Defendant/Cross-Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Louis E. DePauli, Jr., District Judge

Butt Thornton & Baehr PC

Emily A. Franke

Jane Laflin

Albuquerque, NM

for Petitioner

Madison & Mroz, P.A.

Gregory D. Steinman

Minal P. Unruh

Albuquerque, NM

for Respondent

OPINION

MAES, Justice.

{1} This appeal arises out of a cross-claim for contractual and traditional indemnification.

The complaint alleged that Plaintiffs, Briana Fierro and Jason Fierro, suffered injuries when

a baby changing table collapsed in a Safeway store, and that the collapse was the result of

negligence on the part of Safeway, Inc. (Safeway) and Rooter 2000 Plumbing and Drain SSS

(Rooter). The central issue is whether the right to traditional indemnification is available
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notwithstanding New Mexico’s adoption of comparative fault where the jury compared and

apportioned fault among concurrent tortfeasors. After reviewing the genesis of traditional

indemnification and the adoption of contribution and comparative negligence, we hold that

traditional indemnity does not apply when the jury finds a tortfeasor actively at fault and

apportions liability using comparative fault principles. The second issue on appeal is whether

the duty to insure and defend provision of the Standard Service Provider Terms and

Conditions Agreement (Agreement) between Rooter and Safeway is void and unenforceable

under NMSA 1978, Section 56-7-1 (1971, amended 2005). We hold that it is. Therefore, we

reverse the Court of Appeals and affirm the district court’s grant of summary judgment in

favor of Plaintiffs.

I. FACTS AND PROCEDURAL HISTORY

{2} Safeway owns and operates a grocery store in Gallup, New Mexico. Thirteen months

after Rooter installed a diaper changing table in Safeway’s Gallup store bathroom, Briana

Fierro and her baby, Jaye Fierro (Plaintiffs), suffered personal injuries when the changing

table became dislodged and fell from the wall because the butterfly bolts were apparently

installed backwards. Plaintiffs’ initial complaint against Safeway alleged negligence and

personal injuries resulting from the faulty changing table. Plaintiffs filed a second amended

complaint naming Rooter as a defendant and alleging that Rooter was negligent in its

installation of the baby changing station. Plaintiffs further alleged negligence per se, strict

liability, breach of implied warranty, and claims under the doctrine of respondeat superior

against all defendants. Safeway filed a cross-claim against Rooter seeking defense,

indemnification, contribution, and damages pursuant to both New Mexico common law and

the Agreement signed by both parties. The relevant provision of the Agreement provides

that: 

[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 stated that Rooter was to name Safeway as an additional insured under

its insurance policy. Both Rooter and its insurance carrier refused to defend or indemnify

Safeway. Rooter took the position that New Mexico’s anti-indemnification statute, Section

56-7-1, voided any obligation it had to Safeway, and Rooter’s insurance company denied

coverage because it had not been named as an insured on the Rooter policy; thus the policy

did not cover Safeway.

{3} Rooter then filed a motion for summary judgment on Safeway’s cross-claim,

asserting that Safeway had no right to indemnification. The district court found as a matter
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of law that there is no dispute that Safeway will not have to pay for any negligence that is

found to have been committed by Rooter. Safeway did not object to or dispute the district

court’s finding. The district court granted Rooter’s motion for summary judgment, finding

that the Agreement’s contractual indemnification requirements were void and unenforceable

as a matter of New Mexico law, foreclosing Safeway’s rights to indemnity, defense, and

insurance. In granting Rooter’s motion for summary judgment, the district court thereby

dismissed Safeway’s claim for contractual indemnification.” The district court did not

indicate whether it applied the original 1971 of the anti-indemnification statute, or the

version as amended in 2003 that specifically invalidates agreements to insure and defend

against an indemnitee’s negligence, when it concluded that the contractual indemnification

was void. See NMSA 1978, Section 56-7-1(A) (2003, as amended in 2005). The district

court further found that Plaintiffs were not seeking liability or damages from Safeway for

Rooter’s acts or omissions and thus similarly dismissed Safeway’s claim for common law

indemnification. The district court determined that Safeway could request that Rooter be

included on a special verdict form for the purpose of allocating fault.

{4} Plaintiffs ultimately settled all of their claims against Rooter, so those two parties

filed a joint motion to dismiss all claims against Rooter, which the district court granted. The

case then proceeded to trial on Plaintiff’s claims against Safeway. At the close of evidence,

the jury returned a comparative fault special verdict form.

{5} The special verdict form submitted to the jury asked four questions. The first asked,

“[w]as [Safeway] negligent?” The jury answered yes. The second question asked, “[w]as any

negligence of [Safeway] a cause of Plaintiff’s injuries and damages?” Again, the jury

answered yes. The third question and answer established the total damages suffered by

Plaintiff to be $450,000. The fourth question asked the jury to do the following:

Question No. 4: Compare the negligence of the following persons or

entities and find a percentage for each. The total of the percentages must

equal 100%, but the percentage for any one or more of the persons or entities

named may be zero [if] you find that such person or entity was not negligent

or that any negligence on the part of such person or entity was not a cause of

damage.

Safeway ________%

Rooter 2000 ________%

100% TOTAL

The jury entered “40” for Safeway’s negligence because as alleged in Plaintiff’s Uniform

Jury Instruction 13-302 NMRA, Safeway either failed to exercise ordinary care to (1)

provide proper hardware to Rooter, (2) supervise the installation of the baby changing table,

or (3) conduct reasonable inspection of the table during the ensuing thirteen months. The
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jury entered “60” for Rooter’s negligence.

{6} Safeway appealed to the Court of Appeals for review of the district court’s order

granting summary judgment in favor of Rooter, thus denying Safeway’s cross-claim against

Rooter for common law indemnification, as well as Safeway’s cross-claims alleging Rooter

had a contractual duty to indemnify, defend, and insure Safeway. The Court of Appeals,

considering New Mexico’s common law of indemnity, and the importance of the instant

jury’s apportionment of fault amongst Safeway and Rooter, determined that “[t]he 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.” Safeway, Inc.

v. Rooter 2000 Plumbing & Drain SSS, 2013-NMCA-021, ¶ 23, 297 P.3d 347 (citations

omitted). Because the Court of Appeals determined that there were still genuine issues of

material fact regarding whether Rooter owed Safeway a common law right of

indemnification, and whether Rooter’s duty to insure Safeway was breached, it reversed the

district court’s grant of summary judgment. See Id. ¶¶ 24, 30-31.The Court of Appeals also

held that the 1971 version of Section 56-7-1 applied to the parties’ contract and that the

statute voided Rooter’s “agreement to indemnify but not its agreement to defend and insure.”

Safeway, 2013-NMCA-021, ¶¶ 1, 26-27.

{7} Rooter appealed the following two issues to this Court pursuant to Rule 12-502

NMRA: (1) whether the Court of Appeals erred in holding that there are genuine issues of

material fact regarding whether Safeway has any common law right to indemnification

against Rooter where Rooter had settled and satisfied its proportionate share of liability with

the Plaintiffs; and (2) whether the Court of Appeals erred in holding that Rooter owes

Safeway its defense fees and costs even though the contractual indemnification provision

between Safeway and Rooter is void and unenforceable as a matter of law. We granted

certiorari. Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 2013-NMCERT-001 (No.

33,969, Jan. 28, 2013).

II. STANDARD OF REVIEW

{8} This appeal requires this Court to review a lower court’s grant of summary judgment.

“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 (citation omitted). A lower court’s grant

or denial of summary judgment is reviewed de novo. See id. “The validity of an

indemnification agreement and interpretation of statutes raises issues of law, which we

review de novo.” J.R. Hale Contracting Co., Inc. v. Union Pac. R.R., 2008-NMCA-037, ¶

62, 143 N.M. 574, 179 P.3d 579 (citation omitted). All issues raised in this appeal are legal

issues, which we review de novo.

III. DISCUSSION
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{9} Rooter argues that because it satisfied its proportionate share of negligence with the

Plaintiffs, and because Safeway was never held liable for Rooter’s negligence, Safeway does

not have a right to traditional indemnification against Rooter. Rooter further asserts that

traditional indemnification is inapplicable where fault can be apportioned under comparative

negligence principles to the party seeking indemnification. Rooter, therefore, concludes that

because each party was held liable for their proportionate share of the fault, there is no basis

for traditional indemnification and the district court’s grant of summary judgment was

proper.

{10} Safeway responds that it is entitled to traditional indemnification from Rooter

because a jury’s apportionment of fault does not preclude Safeway’s right to common law

indemnification against Rooter. Safeway argues that “[n]otwithstanding the doctrine of

comparative negligence, New Mexico still adheres to traditional and proportional indemnity

principles in some circumstances.” Such circumstances include vicarious liability cases, to

which Safeway analogizes to the nondelegable duty doctrine that also being the theory under

which Plaintiffs had originally sought damages.

{11} The doctrines of indemnity are perplexing as a result of their often misunderstood

relationship to contribution. Indeed, the parties in this case often confuse or incorrectly

interchange traditional and proportional indemnity in their arguments. In addition, our shift

from contributory negligence to comparative negligence and several liability has further

confused the doctrines. We take this opportunity to clarify the relationships between

traditional indemnification, proportional indemnification, contribution, and comparative

negligence. We refer to common law indemnification, sometimes called equitable

indemnification, as traditional indemnification for the sake of clarity and consistency.

A. The origins of traditional indemnity sought to mitigate the common law rule

against contribution among tortfeasors

{12} The common law did not permit contribution or any form of pro rata contribution

among tortfeasors. See Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, ¶

6, 80 N.M. 432, 457 P.2d 364; Merryweather v. Nixan, 8 Term R. 186, 101 Eng. Rep. 1337

(K.B. 1799). The basic theoretical bar at common law to any apportionment among those

who committed torts, whether by indemnity or by contribution, was the unwillingness of the

law as a matter of policy to make relative value judgments of degrees of culpability. See 42

C.J.S. Indemnity, § 27 (2015). Additionally, tort law was considered punitive, thus

distribution among tortfeasors diluted its impact. See Francis H. Bohlen, Contribution and

Indemnity Between Tortfeasors, 21 Cornell L. Rev. 552, 557-59 (1936)(footnotes omitted).

Commentators and scholars criticized the doctrine’s all-or-nothing philosophy terming it a

“chronic invalid who will not die.” W. Page Keeton, et al., Prosser & Keeton on the Law of

Torts § 65, at 453 (5th ed. 1984).

{13} As a result of the common law rule against contribution, courts resorted to the

doctrine of indemnity to mitigate the harshness of the no-contribution rule. See Schneider
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Nat., Inc. v. Holland Hitch Co., 843 P.2d 561, 573 (Wyo. 1992) (“[Traditional] indemnity’s

growth may be directly traced to a reaction to the common law prohibition of contribution.”

(citation omitted)). This Court likewise “realized that the bar against contribution often

worked inequities,” which “led to the recognition of actions for indemnification which

provided for a complete shifting of liability from one party to another in cases where a party

was held only vicariously liable.” Otero v. Jordan Rest. Enters., 1996-NMSC-047, ¶ 9, 122

N.M. 187, 922 P.2d 569 (emphasis, internal quotation marks, and citation omitted).

{14} Courts began to discover, however, that the bar to contribution among fault-bearing

tortfeasors worked injustice in certain other cases in which the indemnitee, while to some

degree personally at fault, was much less culpable than the indemnitor. Some courts thus

expanded indemnity to include cases where the difference in relative degrees of fault was

so great that the negligence of one tortfeasor could be judged “active” in relation to the

“passive” negligence of the other. See Am. Motorcycle Ass’n v. Super. Ct., 578 P.2d 899, 908

(Cal. 1978) (“[T]he equitable indemnity doctrine originated in the common sense proposition

that when two individuals are responsible for a loss, but one of the two is more culpable than

the other, it is only fair that the more culpable party should bear a greater share of the loss.”);

Dole v. Dow Chem. Co., 282 N.E.2d 288, 292-95 (N.Y. 1972) superseded by statute as

stated in N.Y. Hosp. Medical Ctr. Of Queens v. Microtech Contracting Corp., 5 N.E.3d 993,

998 (N.Y. 2014) (discussing origins of distinction between active and passive tortfeasors and

role played by common-law lack of contribution).

{15} New Mexico first adopted the active/passive and in pari delicto tests in the 1940s and

continues to follow these doctrines today. See Krametbauer v. McDonald, 1940-NMSC-049,

¶¶ 43, 50, 44 N.M. 473, 104 P.2d 900 (holding that indemnity was not allowed because

negligence of both parties was “active”). Acting in pari delicto simply refers to the parties

being “negligent in an equal degree.” Trujillo v. Berry, 1987-NMCA-072, ¶ 7, 106 N.M. 86,

738 P.2d 1331 (internal quotation marks and citation omitted). The right to traditional

indemnification “involves whether the conduct of the party seeking indemnification was

passive and not active or in pari delicto with the indemnitor.” Amrep Southwest, Inc. v.

Shollenbarger Wood Treating, Inc. (In re Consol. Vista Hills Retaining Wall Litig.), 1995-

NMSC-020, ¶ 10, 119 N.M. 542, 893 P.2d 438 (Amrep).

Active conduct ‘is found if an indemnitee has 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 [a duty 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.

Id. ¶ 12 (citations omitted). “In essence, traditional indemnification is a judicially created

common-law right that grants to one who is held liable an all-or-nothing right of recovery

from a third party . . . .” Id. ¶ 7.
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{16} New Mexico also enacted the Uniform Contribution Among Tortfeasors Act

(UCATA) in 1947 as another method to avoid the harshness of the rule against contribution

without changing the underlying law of joint and several liability. See NMSA 1978, §§

41-3-1 to -8 (1947, as amended through 1987). The purpose of this Act was “to provide for

a proportionate allocation of the burden among tortfeasors who are liable”, Rio Grande Gas

Co., 1969-NMSC-089, ¶ 6 (citations omitted), and “to prevent [the injured person] from

relieving one joint tortfeasor of the obligation of contribution except where the injured

person has also released the other tortfeasors from [their] pro rata share of the common

liability”. See Garrison v. Navajo Freight Lines, Inc., 1964-NMSC-099, ¶ 6, 74 N.M. 238,

392 P.2d 580 (omission in original) (citation omitted); see also Burt v. W. Jersey Health Sys.,

771 A.2d 683, 687 (N.J. Super. Ct. App. Div. 2001) (“The Joint Tortfeasors Contribution

Law is also designed to ‘alleviate the evident harshness and inequity of the common-law

rule . . . pursuant to which there was no right of joint tortfeasors to seek allocation among

themselves of the burden of their fault.’” (citation omitted)). The UCATA expressly reserved

the right to indemnity in New Mexico. See Section 41-3-6 (providing that this Act “does not

impair any right of indemnity under existing law”).

{17} In conclusion, both traditional indemnity and the UCATA sought to soften the all-ornothing rule of common law contributory negligence. Traditional indemnification and the

active/passive test evolved as a restitutionary device designed to ensure that the most

culpable party, as between the two wrongdoers, bore the ultimate loss. In contrast, whereas

traditional indemnification implies shifting 100% of the loss to the passive tortfeasor,

contribution contemplates a shift of only part of the loss to the other tortfeasor. See Rio

Grande Gas Co., 1969-NMSC-089, ¶ 13 (“[T]he difference between indemnity and

contribution in cases between persons liable for an injury to another is that, with indemnity,

the right to recover springs from a contract, express or implied, and enforces a duty on the

primary wrongdoer to respond for all damages; with contribution, an obligation is imposed

by law upon one joint tortfeasor to contribute his share to the discharge of the common

liability.”).

B. New Mexico adopts comparative fault and several liability but retains the rights

to indemnity and contribution

{18} The move to comparative negligence began with this Court’s ruling in Scott v. Rizzo,

1981-NMSC-021, ¶ 30, 96 N.M. 682, 634 P.2d 1234, superseded by statute as stated in

Delfino v. Griffo, 2011-NMSC-015, ¶ 23, 150 N.M. 97, 257 P.3d 917. This Court established

a system of comparative fault which, rather than barring a plaintiff’s recovery completely

if the plaintiff was at fault, allows liability for damages to be split amongst negligent actors

who contribute to a harm suffered.

The thrust of the comparative negligence doctrine is to accomplish (1)

apportionment of fault between or among negligent parties whose negligence

proximately causes any part of [a] loss or injury, and (2) apportionment of

the total damages resulting from such loss or injury in proportion to the fault
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of each party.

Id. ¶ 20. 

{19} Comparative negligence limits a party’s liability in such a way that joint and several

liability does not: “[A]ll parties [are] fully responsible for their own respective acts to the

degree that those acts have caused harm,” and a “jury must ascertain the percentage of

negligence of all participants to an occurrence,” so that no party is held liable under

comparative negligence for the harm that party did not inflict. Garcia v. Gordon, 2004-

NMCA-114, ¶ 8, 136 N.M. 394, 98 P.3d 1044 (internal quotation marks and citation

omitted). The Scott court noted that the pure form of comparative negligence has three

benefits: (1) it denies recovery for one’s own fault; (2) it permits recovery to the extent of

another’s fault; and (3) it holds parties responsible to the degree that they have caused harm.

See 1981-NMSC-021, ¶ 29.

{20} Not long after Scott, the Court of Appeals held that “[j]oint and several liability is not

to be retained in our pure comparative negligence system on a theory of one indivisible

wrong. The concept of one indivisible wrong, based on common law technicalities, is

obsolete, and is not to be applied in comparative negligence cases in New Mexico.” Bartlett

v. N.M. Welding Supply, Inc., 1982-NMCA-048, ¶ 33, 98 N.M. 152, 646 P.2d 579 (citation

omitted), superseded by statute as stated in Payne v. Hall, 2006-NMSC-029, ¶ 11, 139 N.M.

659, 137 P.3d 599 (citation omitted).

{21} The New Mexico Legislature codified the principles of Scott and Bartlett in 1987.

See NMSA 1978, §§ 41-3A-1 to -2 (1987); Reichert v. Atler, 1992-NMCA-134, ¶ 34, 117

N.M. 628, 875 P.2d 384 (“Following our Supreme Court’s decision in Scott and this Court’s

decision in Bartlett, our [L]egislature enacted legislation continuing the doctrine of joint and

several liability in certain situations.” (Footnote and citation omitted)). The statute provides

that:

In any cause of action to which the doctrine of comparative fault applies, the

doctrine imposing joint and several liability upon two or more wrongdoers

whose conduct proximately caused an injury to any plaintiff is abolished

except as otherwise provided hereafter. The liability of any such defendants

shall be several.

Section 41-3A-1(A). The same section further provides that a defendant who is severally

liable shall be liable only for the amount of harm that the defendant’s damage caused, and

not jointly liable for any harm another party caused:

In causes of action to which several liability applies, any defendant who

establishes that the fault of another is a proximate cause of a plaintiff’s injury

shall be liable only for that portion of the total dollar amount awarded as

damages to the plaintiff that is equal to the ratio of such defendant’s fault to
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the total fault attributed to all persons, including plaintiffs, defendants and

persons not party to the action.

Section 41-3A-1(B).

{22} The Legislature reserved the application of joint-and-several liability to the following

specific situations:

(1) to any person or persons who acted with the intention of inflicting

injury or damage; 

(2) to any persons whose relationship to each other would make one

person vicariously liable for the acts of the other, but only to that portion of

the total liability attributed to those persons; 

(3) to any persons strictly liable for the manufacture and sale of a

defective product, but only to that portion of the total liability attributed to

those persons; or

(4) to situations not covered by any of the foregoing and having a

sound basis in public policy.

Section 41-3A-1(C). 

{23} This Court has applied Section 41-3A-1 to mean that, “[u]nder our comparative

negligence system, each negligent party is charged an amount representing its percentage

of fault.” Gutierrez v. City of Albuquerque, 1998-NMSC-027, ¶ 11, 125 N.M. 643, 964 P.2d

807 (citing Section 41-3A-1(B)). Tortfeasors must now accept responsibility for damages

commensurate with their own relative culpability unless one of the specified exceptions to

joint and several liability apply. See Otero, 1996-NMSC-047, ¶ 11 (“New Mexico tort law

is premised on the notion that each concurrent tortfeasor should bear responsibility for an

accident in accordance with his or her fault.”).

{24} Several liability incorporates the Scott/Bartlett approach of limiting several liability

to particular causes of action. Section 41-3A-1(A) states that the doctrine of several liability

applies to “any cause of action to which the doctrine of comparative fault applies,” unless

the statute provides an exception. In this context, comparative fault is the affirmative defense

that reduces the defendant’s liability by the percentage of fault attributable to the

plaintiff—the doctrine created in Scott. Unless a provision of the statute provides otherwise,

several liability applies to any cause of action to which the partial affirmative defense of

comparative negligence applies to plaintiff’s cause of action.

{25} In addition, this Court modified traditional indemnification in 1995 by adopting

proportional indemnity, “under which a defendant who is otherwise denied apportionment
10

of fault may seek partial recovery from another at fault.” Amrep, 1995-NMSC-020, ¶ 36.

Amrep reasoned proportional indemnification goes hand-in-hand with New Mexico’s

adoption of comparative fault.

[T]o establish an equitable system in which a defendant who cannot raise the

fault of a concurrent tortfeasor as a defense because of the plaintiff’s choice

of remedy, we adopt the doctrine of proportional indemnification . . . [to fill]

a void in the overall picture that contemplates proration of liability among all

those at fault. . . . By embracing proportional indemnification, this Court

takes comparative fault and several liability another logical step.

Id. ¶¶ 36, 40-41. Proportional indemnification applies when the one seeking indemnification

“has been adjudged liable for full damages on a third-party claim that is not susceptible

under law to proration of fault among joint tortfeasors.” Id. ¶ 38. “[P]roportional

indemnification applies only when contribution or some other form of proration of fault

among tortfeasors is not available.” Id. ¶ 39. “[P]roportional indemnification does not apply

when [the UCATA] provides for proration of damages among joint tortfeasors.” Id. ¶ 37

(citation omitted). For example, actions for negligence are governed by comparative fault,

which apportions fault among tortfeasors, so traditional indemnity principles apply because

each tortfeasor is liable only for his or her share of the fault and will never pay more

damages than his or her share. On the other hand, when a plaintiff chooses to sue under

breach of contract, a defendant “should be able to seek proportional indemnification for that

percentage of fault attributable to” another. Id. ¶ 41.

{26} Therefore, indemnification now takes several forms in New Mexico. “[T]raditional

indemnification is a judicially created common-law right that grants to one who is held liable

an all-or-nothing right of recovery from a third party . . . .” Id. New Mexico also recognizes

proportional indemnification, which allows defendants to recover from a third-party for the

portion of a plaintiff’s loss which the third-party’s conduct caused, even when the law does

not apportion fault amongst tortfeasors under a theory of comparative fault. “When

applicable, proportional indemnification allows a defendant to seek partial recovery from

another for his or her fault.” N.M. Pub. Schs. Ins. Auth. v. Gallagher & Co., 2008-NMSC067, ¶ 23, 145 N.M. 316, 198 P.3d 342. And, although joint-and-several liability was for the

most part abolished when New Mexico adopted a comparative fault regime,

joint-and-several liability has been retained in certain matters by statute, which allows a

tortfeasor to seek contribution or indemnification from a fellow tortfeasor. See § 41-3A-1.

C. Traditional indemnity does not apply when the jury finds a tortfeasor actively

at fault and apportions liability using comparative fault principles

{27} The parties differ as to the effect Amrep has on a party’s right to traditional

indemnification. Safeway asserts that this Court made it clear that traditional indemnification

was to survive the adoption of comparative fault and proportional indemnification. Rooter,

however, argues that Amrep specifically indicated that traditional indemnification is not
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applicable where fault for negligence is to be apportioned under New Mexico’s system of

comparative fault.

{28} Because recovery under traditional indemnification requires at least one active

tortfeasor and one passive concurrent tortfeasor, the remedy only applies in a limited number

of tort cases premised on vicarious or derivative liability. For example, the Restatement

(Third) of Torts: Apportionment of Liability § 22 (Am. Law Inst. 2000) provides:

(a) When two or more persons are or may be liable for the same harm

and one of them discharges the liability of another in whole or in part by

settlement or discharge of judgment, the person discharging the liability is

entitled to recover indemnity in the amount paid to the plaintiff, plus

reasonable legal expenses, if:

(1) the indemnitor has agreed by contract to indemnify

the indemnitee, or

(2) the indemnitee

(I) was not liable except vicariously for the

tort of the indemnitor, or

(ii) was not liable except as a seller of a

product supplied to the indemnitee by the indemnitor

and the indemnitee was not independently culpable.

(b) A person who is otherwise entitled to recover indemnity

pursuant to contract may do so even if the party against whom indemnity is

sought would not be liable to the plaintiff.

The Restatement (Third) of Torts is consistent with our past observations in Amrep that:

[t]he right to indemnification may arise through vicarious or derivative

liability, as when an employer must pay for the negligent conduct of its

employee under the doctrine of respondeat superior or when a person is

directed by another to do something that appears innocent but is in fact

wrongful. Further, traditional indemnification principles apply in both

negligence and strict liability cases involving persons in the chain of supply

of a product, and in breach of warranty cases.

1995-NMSC-020, ¶ 9 (citations omitted); see also Otero, 1996-NMSC-047, ¶¶ 3 n.2, 14

(affirming the district court’s finding that a restaurant “would be entitled to indemnification

from the contractor and architect for whose negligence [the restaurant] is liable” because

“[t]his reasoning accords with the general rule that one held vicariously liable has an action
1

See, e.g., Mizuho Corp. Bank (USA) v. Cory & Assocs., Inc., 341 F.3d 644, 652-653

(7th Cir. 2003) (applying Illinois law); Nichols v. CitiGroup Global Mkts., Inc., 364 F. Supp.

12

for traditional indemnification against the person whose act or omission gave rise to the

vicarious liability.” (citations omitted)).

{29} In each one of these factual scenarios, traditional indemnification would allow a

party who has been found liable without active fault to seek restitution from someone who

was actively at fault. Importantly, a finding of negligence does not necessarily mean a

finding of active conduct. For example, if a claim alleges that a contractor failed to discover

and remedy a dangerous condition, that is passive conduct—if the contractor in the exercise

of ordinary care could not have discovered the dangerous condition—and traditional

indemnification would be available from the active concurrent tortfeasor who created the

dangerous condition. See Amrep, 1995-NMSC-020, ¶¶ 12-13 (defining passive conduct and

providing an example to distinguish passive conduct from active conduct in failing to

discover and remedy a dangerous situation). Alternatively, if the contractor discovered, or

should have discovered, the dangerous condition and did not remedy the dangerous

condition, that is active conduct, and traditional indemnification is not available. See id. ¶

19. In strict liability cases, only if the retailer was blameless—passive conduct—is the

retailer entitled to full indemnification from the manufacturer. See id. ¶ 24.

{30} Retaining traditional indemnification is consistent with the equitable goals of our

comparative fault regime. Id. ¶ 36. Comparative fault ensures that all actively negligent

parties pay for their respective faults. See id. ¶ 37. Traditional indemnification ensures that

a party who is not actively at fault can force the actively at fault party to pay. See id. ¶ 10.

{31} Comparative fault is inapplicable under true vicarious and derivative liability

scenarios because the “ ‘vicariously liable party has not committed any breach of duty to the

plaintiff but is held liable simply as a matter of legal imputation of responsibility for

another’s tortious acts.’ ” Valdez v. R-Way, LLC, 2010-NMCA-068, ¶ 7, 148 N.M. 477, 237

P.3d 1289 (quoting Restatement (Third) of Torts: Apportionment of Liab. § 13 cmts. b, c).

The Legislature therefore excluded true vicarious and derivative liability from several

liability because those whose liability is only vicarious are only liable because “someone

else’s fault is imputed to them by operation of law.” Id. (internal quotation marks and

citations omitted). Our Legislature left traditional indemnification as the only scheme for a

passive joint tortfeasor to recover from the active joint tortfeasor under the four categories

of vicarious and derivative liability listed above. See id. ¶ 6.

{32} Preserving traditional indemnification by limiting its application to situations of

vicarious and derivative liability situations where the indemnitee is not actively negligent,

is consistent with the approach adopted by a majority of jurisdictions that have adopted

comparative fault; these jurisdictions follow the indemnification principles summarized in

the Restatement (Third) of Torts: Apportionment of Liability.1

 Previously, under the
2d 1330, 1339-40 (N.D. Ala. 2004) (applying Alabama law); Orient Overseas Container

Line v. John T. Clark & Sons of Boston, Inc., 229 F. Supp. 2d 4, 15 (D. Mass. 2002)

(applying Massachusetts law); Barry v. Hildreth, 9 A.D.3d 341, 342, 780 N.Y.S.2d 159, 161

(N.Y.App. Div. 2004); Bowyer v. Hi-Lad, Inc., 609 S.E.2d 895, 914 (W.Va. 2004); Horowitz

v. Laske, 855 So.2d 169, 174 (Fla. Dist. Ct. App. 2003); INS Investigations Bureau, Inc. v.

Lee, 784 N.E.2d 566, 575-76 (Ind. Ct. App. 2003); Med James, Inc. v. Barnes, 61 P.3d 86

(Kan. Ct. App. 2003); Hamway v. Braud, 838 So.2d 803, 806-07 (La. Ct. App. 2002); Carr

v. Home Ins. Co., 463, 458 S.E.2d 457 (Va. 1995).

13

Restatement (Second) of Torts, an actively negligent concurrent tortfeasor could recover

from a more actively negligent concurrent tortfeasor in traditional indemnification. See

Restatement (Second) of Torts: Apportionment of Liab. § 886B (Am. Law Inst. 1979). For

example, an indemnitee would have a right to indemnity when the “indemnitor supplied a

defective chattel or performed defective work upon land or buildings as a result of which

both were liable to the third person, and the indemnitee innocently or negligently failed to

discover the defect.” Restatement (Second) of Torts: §886B(2)(d) (emphasis added).

{33} Therefore, we reiterate that traditional indemnity survives and co-exists with

comparative negligence, several liability, and proportional indemnification in New Mexico

because it “addresses other considerations of contractual right or of restitution to which a

passive wrongdoer is entitled.” Amrep, 1995-NMSC-020, ¶ 40. We also adopt the Section

22, Restatement (Third) of Torts, in place of Section 886B, Restatement (Second) of Torts,

because it correctly limits the application of traditional indemnity to cases truly premised on

vicarious or derivative liability.

{34} Accordingly, traditional indemnity is not applicable in this case because Plaintiffs

clearly advanced, and the jury found, theories of liability that alleged Safeway to be an

active tortfeasor. The parties agreed at a summary judgment motion hearing that Safeway

would not have to pay for any negligence that is found to have been committed by Rooter

and that is exactly what occurred. The district court therefore instructed the jury on the

following four active negligence theories: (1) failure to provide proper instructions and

hardware for the baby changing station installation, (2) failure to supervise the station

installation, (3) failure to inspect the station after installation, and (4) failure to periodically

inspect the station between the time of installation and the time of Plaintiff’s injury. Safeway

acknowledges as much in its docketing statement, and concedes that in the comparative

negligence context, it has no right to indemnification from Rooter for its own active

negligence.

{35} Further, this is not a true vicarious or derivative liability case that would entitle

Safeway to traditional indemnity because the jury found Safeway actively at fault. Safeway

and Rooter were adjudged liable for their proportion of fault–40% Safeway, 60% Rooter. To

hold either party liable for more or less of their fault would be inequitable and contrary to

the goals of both comparative negligence and traditional indemnity. Therefore, we reverse
14

the Court of Appeals and affirm the district court’s dismissal of Safeway’s cross-claim for

traditional indemnification.

D. Rooter does not have a duty to defend under the Agreement because the whole

indemnification clause is void and unenforceable under the 1971 version of

Section 56-7-1 and is against public policy

{36} As mentioned above, the Agreement between Rooter and Safeway provided that:

[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].

{37} This Court must determine whether the contractual provision requiring Rooter

to defend and maintain liability insurance and name Safeway as an additional insured is

enforceable under Section 56-7-1.

{38} “Our primary goal is to ascertain and give effect to the intent of the Legislature. In

doing so, we examine the plain language of the statute as well as the context in which it was

promulgated . . . .” State v. Office of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 13, 285

P.3d 622 (internal quotation marks and citation omitted). “Under the rules of statutory

construction, [w]hen a statute contains language which is clear and unambiguous, we must

give effect to that language and refrain from further statutory interpretation.” First Baptist

Church of Roswell v. Yates Petroleum Corp., 2015-NMSC-004, ¶ 9, 345 P.3d 310 (alteration

in original) (internal quotation marks and citation omitted). We also “look at the overall

structure and function of the statute, as well as the public policy embodied in the statute.”

Delfino, 2011-NMSC-015, ¶ 12 (citations omitted) ; see also State Bd. of Educ. v. Bd. of

Educ. of Alamogordo Pub. Sch. Dist. No. 1, 1981-NMSC-031, ¶ 14, 95 N.M. 588, 624 P.2d

530 (“In ascertaining the legislative intent, we look not only to the language used in [a]

statute, but also to the object sought to be accomplished and the wrong to be remedied.”

(citation omitted)).

{39} The 1971 version of Section 56-7-1 provides:

Any provision, contained in any agreement relating to the construction,

installation, alteration, modification, repair, maintenance . . . of any real

property . . . by which any party to the agreement agrees to indemnify 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,
15

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 . . . 

In 2003, Section 56-7-1 was amended to specifically include agreements to insure and

defend against the indemnitee’s negligence, stating: “A provision in a construction contract

that requires one party to indemnify, hold harmless, insure or defend the other party to the

contract” against liability for the negligence, act or omission of the indemnitee “is void,

unenforceable and against the public policy of the state.” NMSA 1978, Section 56-7-1(A)

(2003, amended 2005). The Court of Appeals held that the 1971 version of Section 56-7-1

applies in this case and that issue is not disputed. See Safeway, 2013-NMCA-021, ¶ 27.

Because the agreement was signed by the parties on November 26, 2002, we agree.

{40} The Court of Appeals concluded, though, that while the indemnification provision

under the contract was void and unenforceable under NMSA 1978, Section 56-7-1 (1971,

amended 2005), Rooter still had a duty to defend Safeway. Safeway, 2013-NMCA-021, ¶¶

26-27, 29. The Court of Appeals reasoned that the duty to defend is “distinct and separate

from an agreement to indemnify” and that the 1971 version of Section 56-7-1 did not

prohibit such agreements. Safeway, 2013-NMCA-021, ¶ 28 (citation omitted). The Court of

Appeals further noted that Section 56-7-1 (1971) does not preclude defend and insure

provisions in construction contracts, unlike the 2003 version of Section 56-7-1. Safeway,

2013-NMCA-021, ¶ 26.

{41} Rooter cites Sierra v. Garcia, 1987-NMSC-116, 106 N.M. 573, 746 P.2d 1105 to

support its assertion that Section 56-7-1 voids the entire contractual agreement, and not

merely part of it. In contrast, Safeway argues that pursuant to City of Albuquerque v. BPLW

Architects & Eng’rs, Inc., 2009-NMCA-081, 146 N.M. 717, 213 P.3d 1146, (BPLW) the

indemnity provision can be read out of the agreement leaving the defense provision intact

because Rooter’s duty to defend and insure is separate and distinct from Rooter’s duty to

indemnify Safeway.

{42} In Sierra, a general contractor was sued for the wrongful death of a subcontractor’s

employee and filed a third-party complaint against the subcontractor asserting that the

subcontractor had agreed to indemnify the general contractor. 1987-NMSC-116, ¶ 1. The

agreement between the contractor and general contractor provided that “Subcontractor shall

defend at its own cost and indemnify and hold harmless Contractor and Owner, their agents

and employees from any and all liability, damages, losses, claims and expenses, however

caused resulting directly or indirectly from or connected with the performance of this

subcontract.” Sierra, 1987-NMSC-116, ¶ 4. This Court rejected the notion that portions of

the agreement could be read out in order to render any part of the provision enforceable. Id.

¶¶ 6, 10. Instead, Sierra held “that the contract is voided in its entirety by . . . [Section 56-7-

1 (1971, amended 2005)].” Id. ¶ 10.
16

{43} BPLW involved a “dispute over an indemnification clause in a contract between the

City of Albuquerque and BPLW Architects & Engineers, Inc.” after a pedestrian was injured

at the facility. BPLW, 2009-NMCA-081, ¶ 1. The City requested that BPLW provide its

defense pursuant to the agreement, which BPLW denied. Id. In examining whether BPLW

was contractually obligated to defend the City, the Court of Appeals examined the language

of the defend and indemnify clause, which provided that BPLW agreed “to defend,

indemnify, and hold harmless the City . . . against all suits . . . brought against the City

because of any injury or damage received or sustained by any person . . . arising out of or

resulting from any negligent act, error, or omission of [BPLW] . . . arising out of the

performance of this Agreement.” Id. ¶ 14 (alteration and omissions in original). The Court

of Appeals concluded that “there [was] no language in the contract that limit[ed] BPLW’s

duty to defend the City” and that “the plain language of [the] clause indicate[d] that the duty

to defend applies to allsuits against the City arising out of a negligent act, error, or omission

of BPLW arising out of the performance of the agreement.” Id. Thus, the Court of Appeals

held that “BPLW ha[d] a duty to defend the City, even if only the City [was] alleged to be

negligent, as long as the cause of action [arose] from the alleged negligent act, error, or

omission of BPLW.” Id. ¶ 15. The Court noted that this interpretation of the contract

furthered the policy behind both versions of Section 56-7-1, which is to promote “safety in

construction projects by holding each party to the contract accountable for injuries caused

by its own negligence.” Id. ¶ 19 (citation omitted).

{44} The Agreement in this case does not require Rooter to defend Safeway only for

claims arising out of Rooter’s negligence in performance of the contract. Instead, the

Agreement also requires a defense of Safeway for Safeway’s own negligence, “except where

the claim, loss or damage is caused by the sole negligence of [Safeway].” Sierra made clear

that the anti-indemnity statute voids the entire contractual agreement, not merely part of it,

when the clause requires the indemnitor to indemnify the indemnitee for the indemnitee’s

own negligence. This case and Sierra are distinct from BPLW because BPLW only had to

indemnify the city against suits “arising out of or resulting from any negligent act, error, or

omission of [BPLW].” BPLW, 2009-NMCA-081, ¶ 14.

{45} The indemnification provision in this case is statutorily void and unenforceable

because it requires Rooter to indemnify Safeway for Safeway’s own negligence. Similarly,

as a matter of both law and policy, Rooter should not have to pay for Safeway’s legal

defense caused by Safeway’s own fault where Rooter settled with Plaintiffs for its share of

fault. As noted by BPLW,

Both the current version and the version in effect at the time the contract was

executed, however, have the same effect because both ensure that an

indemnitor only has to indemnify for causes of action that arise from the

indemnitor’s own negligent conduct. In addition, both versions of the statute

are 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. 
17

2009-NMCA-081, ¶ 19 (citation omitted). This public policy is frustrated if we order Rooter

to pay Safeway’s defense costs for Safeway’s own negligence that the jury clearly found and

appropriately apportioned using comparative fault. Accordingly, we reverse the Court of

Appeals on the issue of the contractual duty to defend and affirm the district court’s grant

of summary judgment.

IV. CONCLUSION

{46} We hold that traditional indemnity is not applicable in this case because the jury

apportioned fault under comparative negligence principles. And because we hold that

Rooter’s contractual duty to indemnify, defend, and insure Safeway under the Agreement

is unenforceable, we reverse the Court of Appeals’ holding that Section 56-7-1 (1971, as

amended through 2005) did not render the defense and insurance requirements of the

Agreement void and unenforceable. Therefore, we reverse the Court of Appeals and affirm

the district court’s grant of summary judgment finding that Rooter owed no common law or

contractual duties to Safeway. This case is remanded to the district court for proceedings

consistent with this opinion.

{47} IT IS SO ORDERED.

____________________________________

PETRA JIMENEZ MAES, Justice

WE CONCUR:

____________________________________

BARBARA J. VIGIL, Chief Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

CHARLES W. DANIELS, Justice

JUDITH NAKAMURA, Justice, not participating