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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-081

Filing Date: June 9, 2009 

Docket No. 27,837

CITY OF ALBUQUERQUE,

Defendant/Cross-Claimant/Appellee,

v.

BPLW ARCHITECTS & ENGINEERS, INC.,

Defendant/Cross-Defendant/Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

William F. Lang, District Judge

The Baker Law Firm

Jeffrey L. Baker

Renni Zifferblatt

Albuquerque, NM

for Appellee

Montgomery & Andrews, P.A.

Kevin M. Sexton

Albuquerque, NM

for Appellant

OPINION

FRY, Chief Judge.

{1} This case arises from a dispute over an indemnification clause in a contract between

the City of Albuquerque and BPLW Architects & Engineers, Inc. (BPLW) for the design and

construction of the rental car facility at the Albuquerque International Airport. After a

pedestrian was injured at the facility, the City requested a defense from BPLW pursuant to

the indemnification clause. BPLW denied the request, and the City filed a claim against

BPLW. The district court granted partial summary judgment in the City’s favor, finding that
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BPLW was required to defend the City in the lawsuit brought by the pedestrian because the

claim arose from BPLW’s design and construction of the facility. BPLW appeals. We

affirm.

BACKGROUND

{2} In 1998, the City entered into an architectural services contract with BPLW for the

design of the rental car facility at the airport. While BPLW was initially responsible only

for the design of the facility, the contract provided that the City could require BPLW to

perform construction services if needed. Pursuant to this provision, BPLW took full

responsibility for the construction administration services for the project and proceeded to

oversee the construction of the facility it had designed. The project was completed, and the

City took possession in 2001. Two weeks after the facility opened, a pedestrian, John

Pound, fell off a curb while exiting one of the car rental buildings located at the facility.

Pound suffered extensive injuries and filed suit against the City, alleging that the curb from

which he fell was excessively high and that the City had “failed to properly construct the

curb and adjacent pavement,” had “failed to correct a hazardous condition, specifically the

excessively high curb,” and had “failed to inspect and/or maintain the curb and adjacent

pavement where” he had fallen. Pound later filed an amended complaint, reasserting his

allegations against the City and adding a number of additional defendants, including BPLW.

In the amended complaint, Pound alleged that BPLW had negligently designed the curb and

had failed to use reasonable care in the inspection and supervision of the construction of the

curb.

{3} As revealed by discovery later, the curb that Pound fell from was adjacent to a

handicap ramp and varied in height from about eleven inches, where the curb met the top of

the ramp, to less than one inch where the base of the ramp began. According to BPLW, this

curb was a “header curb” built in compliance with a standard design specification for header

curbs provided by the City. The portion of curb where Pound fell was apparently located

near the door to one of the rental car buildings, about a foot high, and it was neither marked

to indicate that there was a sharp change in elevation nor blocked by any type of barrier to

prevent a person from stepping off the curb. Pound alleged that it was the placing of this

high curb in a pedestrian pathway that caused him to fall.

{4} After receiving Pound’s complaint, the City requested that BPLW honor its

contractual obligation to defend and indemnify the City. BPLW refused. The City then filed

a cross-claim against BPLW, alleging that BPLW had a contractual duty to defend and

indemnify the City for any cause of action arising out of BPLW’s performance of the

contract. The City and BPLW later independently settled the claims brought against them

by Pound, leaving only the cross-claim between the City and BPLW to be litigated. 

{5} The City then filed a partial motion for summary judgment limited solely to the issue

of whether BPLW had a duty to defend. The district court granted the City’s motion, finding

that BPLW had a duty to defend, and awarded the City approximately $90,000 in attorney
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fees for the expenses the City incurred defending the claims Pound brought against it. The

district court also certified its order as final under Rule 1-054(B) NMRA, finding that there

was no just reason for delay. BPLW timely appealed. 

{6} On appeal, BPLW argues that it did not have a contractual duty to defend the City

because none of Pound’s allegations alleged that the City was vicariously liable for BPLW’s

negligence and because all of the allegations against the City were for the City’s direct

negligence, not BPLW’s. BPLW also argues that it does not have a duty to defend because

the indemnity clause contained an exception that relieves BPLW of its duty to defend the

City if the cause of action arises out of the City’s negligence in approving designs or

providing design specifications. Because the City approved all of the designs for the rental

car facility and because the curb in question complied with a City design specification,

BPLW argues that the cause of action falls within this exception to its duty to defend.

DISCUSSION

Standard of Review

{7} 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. Rummel v.

Lexington Ins. Co., 1997-NMSC-041, ¶ 15, 123 N.M. 752, 945 P.2d 970; see Gormley v.

Coca Cola Enters., 2005-NMSC-003, ¶ 8, 137 N.M. 192, 109 P.3d 280. However, if no

material issues of fact are in dispute and an appeal presents only a question of law, we apply

de novo review and are not required to view the appeal in the light most favorable to the

party opposing summary judgment. Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8,

133 N.M. 756, 69 P.3d 1199. Neither party argues that there are any material facts in

dispute, nor do we find any disputed facts in our review of the record. Instead, both parties

argue that resolution of this appeal depends solely on the legal question of when a

contractual duty to defend is triggered and on the interpretation of the indemnity clause

between BPLW and the City. Thus, we review the district court’s grant of summary

judgment de novo.

The Duty to Defend Arises From the Terms of the Contract and the Allegations of the

Complaint

{8} The City argues that in order to determine whether a duty to defend exists, we should

look at the terms of the contract and the allegations contained in the complaint. According

to the City, if the allegations in the complaint fall within the terms of the contract, then the

duty to defend is triggered. BPLW, on the other hand, argues that a contractual duty to

defend can only be triggered if vicarious liability is alleged in the underlying complaint.

While BPLW acknowledges that our case law suggests that the City’s view is correct, it

argues that the cases that set out this rule all involve insurance contracts and thus that the

rule is inapplicable to a duty to defend contained in other types of contracts. See, e.g.,
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Bernalillo County Deputy Sheriffs Ass’n v. County of Bernalillo, 114 N.M. 695, 697, 845

P.2d 789, 791 (1992) (holding that an insurer’s duty to defend arises from the allegations in

the complaint against the insured). We disagree with BPLW and, as we explain below, we

hold that a contractual duty to defend is triggered by the allegations in the complaint.

{9} In disputes stemming from insurance contracts, the “duty to defend arises out of the

nature of the allegations in the complaint,” Miller v. Triad Adoption & Counseling Servs.,

Inc., 2003-NMCA-055, ¶ 9, 133 N.M. 544, 65 P.3d 1099, and is determined “by comparing

the factual allegations in the complaint with the insurance policy.” Lopez v. N.M. Pub. Sch.

Ins. Auth., 117 N.M. 207, 209, 870 P.2d 745, 747 (1994). If a complaint “states facts that

bring the case within the coverage of the policy,” then the duty to defend will be triggered.

Bernalillo County Deputy Sheriffs Ass’n, 114 N.M. at 697, 845 P.2d at 791. However, “[i]f

the allegations of the complaint clearly fall outside the provisions of the policy, neither

defense nor indemnity is required.” Id.

{10} BPLW argues that these rules are inapplicable and “irrelevant to a non-insurance

scenario.” As its sole support for this argument, BPLW cites a number of Florida cases that

it interprets as holding that a contractual duty to defend is triggered only when vicarious

liability is alleged in a complaint. E.g., Metro. Dade County v. CBM Indus. of Minn., Inc.,

776 So. 2d 937, 939 (Fla. Dist. Ct. App. 2001) (finding duty to defend where complaint

stated a cause of action for vicarious liability); SEFC Bldg. Corp. v. McCloskey Window

Cleaning, Inc., 645 So. 2d 1116, 1117 (Fla. Dist. Ct. App. 1994) (refusing to find duty to

defend where complaint alleged only active negligence of indemnitee); Metro. Dade County

v. Fla. Aviation Fueling Co., 578 So. 2d 296, 298 (Fla. Dist. Ct. App. 1991) (finding duty

to defend where complaint alleged vicarious liability). Contrary to BPLW’s argument, these

cases did not hold that a duty to defend can only be triggered if the allegations of a complaint

allege vicarious liability. Instead, these cases were decided on the ground that the indemnity

agreements in question expressly precluded indemnity for the indemnitee’s own negligence.

In CBM Industries, for example, the indemnity agreement expressly stated that “nothing

herein shall . . . require [CBM] to indemnify the [c]ounty against liability resulting from the

willful, negligent, or unlawful acts . . . of the [c]ounty.” 776 So. 2d at 938 (first alteration

in original) (emphasis omitted) (internal quotation marks omitted). Because the contract

expressly excluded indemnification of claims that the county was negligent, the only way

the county could establish a contractual duty to defend was through the vicarious liability

claims asserted against it. Id.; see SEFC Bldg. Corp., 645 So. 2d at 1117 (refusing to find

duty to defend from the indemnitee’s own negligence where an indemnity agreement did not

expressly state “such intent in clear, unequivocal terms”).

{11} BPLW does not make any further argument in support of its contention other than

the bare assertion that the rules comparing the complaint’s allegations with the contract

should not apply to anything other than insurance contracts. While we recognize that the

primary purpose of an insurance contract is to defend and indemnify an insured and that the

primary purpose of the contract at issue in this case is for construction services, not

indemnity, we are not persuaded that we should create a new rule for determining when a
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non-insurance contractual duty to defend arises. In both types of contracts, the duty to

defend is a contractual obligation that the parties have bargained for as a part of their

agreement. Because the duty to defend is a contractual obligation, we hold that regardless

of the type of contract containing it, the duty to defend arises when the language of a

complaint states a claim that falls within the terms of the contract. 

BPLW Has a Contractual Duty to Defend the City, Even for the City’s Own Alleged

Negligence, as Long as the City’s Negligence Arises From BPLW’s Negligence

{12} We now consider whether Pound’s allegations against the City fall within the scope

of BPLW’s duty to defend. BPLW argues that all of Pound’s allegations against the City

were that the City, not BPLW, was negligent and that the indemnity clause does not require

BPLW to defend the City for the City’s own negligence. BPLW further argues that requiring

it to indemnify the City when the City is alleged to be negligent would violate the public

policy expressed in NMSA 1978, Section 56-7-1 (1971) (amended 2003 and 2005), which

makes void any indemnity agreement in a construction contract that requires an indemnitor

to indemnify an indemnitee for the indemnitee’s own negligence. The City, on the other

hand, argues that the indemnity clause requires BPLW to defend the City for any cause of

action that arises from the negligent act, error, or omission of BPLW even if the complaint

alleges that the City itself was negligent.

{13} Neither party disputes that Pound’s allegations against the City were that the City

itself, not BPLW, was negligent. Thus, resolution of this appeal requires us to interpret the

contract between the parties and determine whether the indemnity clause required BPLW

to defend the City even if the City is alleged to have been negligent. The parties do not

contend that the contract was ambiguous, and, therefore, “the interpretation of language in

[the] contract is an issue of law which we review de novo.” Krieger v. Wilson Corp., 2006-

NMCA-034, ¶ 12, 139 N.M. 274, 131 P.3d 661 (filed 2005).

{14} In order to determine the applicability of an indemnity provision in a contract, “[w]e

apply the general rules of contract construction in determining the meaning of the language

used” by the parties. Id. ¶ 13. This requires us to construe the contract “as a harmonious

whole” and to give every word and phrase “meaning and significance according to its

importance in the context of the whole contract.” Id. (internal quotation marks and citation

omitted). The indemnity clause between the City and BPLW provides that BPLW

agrees 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.

{15} Aside from the specific exceptions that we discuss below, there is no language in the

contract that limits BPLW’s duty to defend the City to complaints that do not allege that the
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City was negligent. Instead, the plain language of this clause indicates that the duty to

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

of BPLW arising out of the performance of the agreement. Consequently, BPLW has a duty

to defend the City, even if only the City is alleged to be negligent, as long as the cause of

action arises from the alleged negligent act, error, or omission of BPLW. 

{16} Although this provision does not explicitly state that BPLW must indemnify the City

for the City’s own negligence, our Supreme Court has held that a provision such as this is

to be broadly construed to provide indemnity for the indemnitee’s own negligence if “the

intention to save [the indemnitee] harmless . . . is clear and unequivocal” in the contract.

Metro. Paving Co. v. Gordon Herkenhoff & Assocs., 66 N.M. 41, 43, 341 P.2d 460, 461

(1959). Here, the contract provides that BPLW will defend the City from all suits against

the City that arise out of BPLW’s negligence in the performance of the contract. The only

limitation on this duty is that

[n]othing in the Agreement shall be construed to require [BPLW] to (defend)

indemnify and hold harmless the City . . . from and against liability . . .

caused by or resulting from in whole or in part the negligence, act or

omission of the City . . . [1] arising out of the preparation or approval of

maps, drawings, opinions, reports, surveys, change orders, designs or

specifications by the City . . . or [2] the giving or failure to give directions or

instructions by the City . . . where such giving or failure to give directions or

instructions is the primary cause of bodily injury to persons or damage to

property.

Aside from these very specific and limited exceptions that relieve BPLW of its duty to

defend if the cause of action arises from the City’s negligent approval or preparation of

designs and specifications, the contract does not contain any other limiting language

excluding claims that the City was negligent. BPLW’s obligation to defend the City from

all suits therefore includes causes of action alleging that the City itself was negligent, as long

as the cause of action arises from BPLW’s performance of the agreement. The gist of

Pound’s complaint against all defendants was that the design of the curb and surrounding

area was dangerous; Pound also alleged that BPLW designed the site.

{17} Indeed, the language used to delineate the specific exceptions to BPLW’s duty to

defend, which is quoted in the preceding paragraph, supports our interpretation of the

indemnity clause. This language—used to relieve BPLW of its duty to defend if the cause

of action arises from the City’s negligent approval or preparation of designs and

specifications—is derived almost verbatim from the 1971 version of Section 56-7-1, the antiindemnity statute in effect at the time the contract was drafted. Section 56-7-1 mandated that

any indemnity agreement in a construction contract that requires an indemnitor to indemnify

an indemnitee for the indemnitee’s own negligence is “against public policy. . . void and

unenforceable” unless the agreement specifically provides that the indemnity does “not

extend to liability . . . arising out of . . . the preparation or approval of maps, drawings,
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opinions, reports, surveys, change orders, designs or specifications by the indemnitee, or the

agents or employees of the indemnitee.”

{18} Notably, the statute required the exclusionary language used by BPLW and the City

only if an indemnity agreement required an indemnitor to indemnify the indemnitee for the

indemnitee’s own negligence. See id. By using language that is required only under such

circumstances, it is clear that the parties specifically intended BPLW to indemnify and

defend the City when the City is alleged to be negligent as long as the cause of action arises

from BPLW’s design or construction of the facility. If, as BPLW argues, the indemnity

clause did not require BPLW to indemnify the City for the City’s alleged negligence, then

the exclusionary language would not have been necessary. See Pub. Serv. Co. of N.M. v.

Diamond D Constr. Co., 2001-NMCA-082, ¶¶ 19, 31, 131 N.M. 100, 33 P.3d 651 (noting

that “[w]e will not read a particular provision of a contract such that another provision is

rendered meaningless”). Thus, the clear intent of the contract is for BPLW to defend the

City from any lawsuit alleging that the City itself was negligent, as long as the cause of

action arises from BPLW’s alleged negligence, unless the claim arises from the City’s

negligent approval or preparation of a design or specification.

{19} We also reject BPLW’s argument that requiring it to defend the City for the City’s

alleged negligence violates the public policy expressed in Section 56-7-1. A 2003

amendment to Section 56-7-1 eliminated the exclusionary language, which was used in the

contract’s indemnity clause, required by the 1971 version of the statute. See § 56-7-1

(1971); 2003 N.M. Laws, ch. 309, § 1; 2003 N.M. Laws, ch. 421, § 1. The statute now

provides that

[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 . . . against liability . . . only to the

extent that the liability . . . [is] caused by, or arise[s] out of, the acts or

omissions of the indemnitor or its officers, employees or agents[.]

Section 56-7-1(B)(1). 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. See Tucker v. R.A. Hanson Co., 956 F.2d 215, 218 (10th Cir.

1992) (noting that “[t]he purpose of [Section 56-7-1] is to protect construction workers and

future occupants of a building by ensuring that all those involved in its construction know

that they will be held financially liable for their negligence”); Guitard v. Gulf Oil Co., 100

N.M. 358, 362, 670 P.2d 969, 973 (Ct. App. 1983) (noting that the mining anti-indemnity

statute, NMSA 1978, § 56-7-2 (1971) (amended 1999 and 2003), was intended to promote
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public safety by ensuring that each party to a mining contract is held accountable for its own

negligence and will therefore have an incentive to operate in a safe manner).

{20} Here, requiring BPLW to fulfill its contractual obligation to defend the City against

any suit against the City arising out of BPLW’s alleged negligence in the performance of the

contract does not violate Section 56-7-1 or the policy behind it. Instead, this interpretation

of the contract is fully consistent with the requirements of the statute. It promotes safety in

the construction project because it ensures that BPLW will be accountable for any harm

caused by its performance of the agreement.

Pound’s Claims “Arise From” BPLW’s Design and Construction of the Facility

{21} We now consider whether Pound’s allegations fall within the scope of the indemnity

clause and arise from BPLW’s performance of the agreement. The complaint stated a claim

of negligence, alleging that the City owed and breached a duty of reasonable care in the

construction and maintenance of the curb by “fail[ing] to properly construct the curb and

adjacent pavement,” and stated a claim of premises liability, alleging that the City failed to

properly inspect and construct the area where Pound fell. These claims state two distinct

allegations: (1) the City negligently constructed the curb and (2) the City negligently failed

to maintain and make safe the area where Pound fell. BPLW argues that it does not have a

duty to defend because Pound’s allegations are directed at the City’s direct negligence, not

BPLW’s. While we agree with BPLW that Pound alleged that the City was negligent, we

disagree with BPLW’s assertion that the suit did not arise from BPLW’s alleged negligence.

{22} The indemnity clause requires BPLW to defend the City from any action “arising out

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

performance of” the contract. The phrase “arising out of” is given a broad interpretation by

our courts and is generally “understood to mean ‘originating from,’ ‘having its origin in,’

‘growing out of[,]’ or ‘flowing from.’” Krieger, 2006-NMCA-034, ¶ 14. Using this

definition of the phrase “arising out of,” BPLW has a contractual duty to defend the City for

all claims that originate from, have their origin in, grow out of, or flow from the negligent

performance of its contract with the City. The undisputed facts indicate that BPLW was

responsible for the design and supervision of the construction of the curb. Thus, all of the

allegations regarding the design and construction of the curb clearly arise from BPLW’s

allegedly negligent performance of the contract and therefore fall within the duty to defend.

{23} BPLW further argues that because some of the claims also allege that the City

breached its duty to maintain and make safe the premises, BPLW is relieved of its obligation

to defend. In support of this argument, BPLW cites Williams v. Central Consolidated School

District, 1998-NMCA-006, ¶ 16, 124 N.M. 488, 952 P.2d 978 (filed 1997), a case in which

this Court held that “[e]ven if a building is designed by an independent private architect, the

state is responsible for its own duty of care in and around the work of the architect as part

of its ‘operation or maintenance’ of the building.” In that case, a student had fallen through

a negligently designed window that, due to its location and the type of glass, created a
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dangerous condition for students. Id. ¶¶ 3-4. BPLW misconstrues the case as relieving it

from its duty to defend the City. Williams dealt solely with whether the state could be sued

for negligent maintenance of a building when the unsafe condition was caused by an

architect’s design defects. Id. ¶ 16. Williams did not, however, address whether the architect

would have been required to indemnify the state had there been an indemnity agreement like

the one in the present case.

{24} Here, Pound alleged that the City negligently failed to inspect and maintain the curb

that Pound fell from. Contrary to BPLW’s argument, these claims, like the claims that the

curb was negligently constructed, “arise from” BPLW’s allegedly negligent performance of

the contract. Pound alleged that the City failed to fix a curb that was dangerously high.

However, had BPLW designed and constructed the curb in such a way as to avoid the

dangerous condition, then there would not have been any dangerous condition for the City

to make safe. Thus, the claims that the City failed to inspect and maintain the curb area

“arise from” BPLW’s performance of the contract because the claims have their origin in,

grow out of, and flow from the allegedly negligent design and construction of the curb by

BPLW.

The Exclusionary Language of the Indemnity Clause Does Not Relieve BPLW of Its

Duty to Defend

{25} BPLW next argues that the exclusionary provisions of the indemnity clause relieve

it of its duty to defend because the curb was built and designed in accordance with standard

design specifications for header curbs provided by the City and because the City approved

the plans prior to the construction of the facility. The exclusionary language of the

indemnity clause relieves BPLW of its duty to defend the City from liability “arising out of

the preparation or approval of maps, drawings, . . . designs or specifications by the City.”

{26} According to BPLW, the curb that Pound fell from was constructed and designed in

full compliance with the City’s DWG.2415, a design-specification sheet that details how to

construct various types of curbs used in city construction projects. DWG.2415 contains

drawings specifying the City’s requirements for the construction of seventeen different types

of curbs and gutters and includes information on the dimensions of the various curbs as well

as the type of construction materials that must be used to build the curbs. The specifications

for the header curb, the type of curb at issue, indicate that a header curb can be up to

eighteen inches high and that there is no requirement that any type of safety rail be placed

above the curb.

{27} BPLW argues that because it relied on the City’s design specifications for the header

curb, it does not have a duty to defend the City under the exclusionary language of the

contract. According to BPLW, it was the City’s design specifications that caused the curb

to be unreasonably high, not any design defect in BPLW’s construction and design of the

curb. We disagree.
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{28} In order for BPLW to be relieved of its duty to defend under the exclusionary

language of its contract with the City, the cause of action must arise from the City’s

preparation or approval of maps, drawings, designs, or specifications. The cause of action

in this case, however, does not arise from the design specifications for a header curb. While

BPLW may have been required to build all header curbs to comply with the City

specifications, there is no indication that BPLW was required to use a header curb in the

specific location where the curb was actually constructed. In the process of designing the

rental car facility, BPLW opted to install a header curb in the particular location where

Pound fell. According to the allegations in Pound’s complaint, it was the placing of an

excessively high curb in a pedestrian path that is alleged to have caused the fall, not some

defect in the design specifications for the header curb.

{29} To the extent that Pound’s allegations even mention DWG.2415, Pound only alleges

that the City violated the design specifications when it constructed the curb, not that there

was some defect in the design specifications themselves. Because BPLW, not the City, was

responsible for the placement of the curb in a particularly dangerous location, the alleged

failure to comply with the specifications falls within BPLW’s duty to defend the City, not

the exclusionary language of the contract. Thus, for purposes of determining whether BPLW

had a duty to defend, Pound’s complaint states a claim that arises from BPLW’s design and

construction of the curb in question, not from some defect in the City’s design specifications

for header curbs such that BPLW would be relieved of its duty to defend.

{30} BPLW next argues that it is relieved of its obligation to defend the City because the

City approved all of the plans BPLW had designed prior to the construction of the facility.

There are no allegations in the complaint that Pound’s injuries arose from the City’s

approval of BPLW’s design for the rental facility. Instead, all of the allegations against the

City relate to the design and construction of the facility. Because BPLW designed and

constructed the facility, these allegations all arise from BPLW’s performance of the contract

and are subject to BPLW’s general obligation to defend the City. 

Indemnification

{31} BPLW finally argues that the district court erred in denying its motion for summary

judgment in which BPLW sought a determination that it did not have a duty to indemnify

and reimburse the City for the settlement the City paid to Pound. The district court’s grant

of partial summary judgment, however, dealt solely with whether BPLW had a duty to

defend, not whether BPLW had a duty to indemnify. In addition, “the duty to indemnify is

distinct from [the] duty to defend,” and resolution of whether a party has a duty to defend

does not necessarily depend on there being a duty to indemnify. Ins. Co. of N. Am. v. Wylie

Corp., 105 N.M. 406, 409, 733 P.2d 854, 857 (1987). While we look to the allegations in

the complaint and the terms of the contract to determine whether a duty to defend has been

triggered, whether BPLW will also be required to indemnify the City requires the resolution

of material facts by the district court. Thus, the issue of BPLW’s duty to indemnify the City

is not properly before us, and we therefore do not address it.
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CONCLUSION

{32} For the foregoing reasons, we affirm the district court’s grant of partial summary

judgment in favor of the City of Albuquerque.

{33} IT IS SO ORDERED.

____________________________________

CYNTHIA A. FRY, Chief Judge

WE CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge

____________________________________

RODERICK T. KENNEDY, Judge

Topic Index for City of Albuquerque v. BPLW Architects & Engineers, Inc., No. 27,837

AE APPEAL AND ERROR

AE-SR Standard of Review

CP CIVIL PROCEDURE

CP-SJ Summary Judgment

CN CONTRACTS

CN-DD Duty to Defend

CN-ID Indemnification Agreement

NG NEGLIGENCE

NG-ID Indemnification

NG-PI Personal Injury

NG-VL Vicarious Liability

RE REMEDIES

RE-ID Indemnification