1

Certiorari Granted, October 18, 2010, Docket No. 32,603

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-091

Filing Date: July 19, 2010 

Docket 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 
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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 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,
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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 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 antiindemnity 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 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.
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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 antiindemnity 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-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 antiindemnity 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-[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
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{12} Southern Union argues that for the purpose of determining whether either of the antiindemnity 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.

{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. 

{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 antiindemnity 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. 
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{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 antiindemnity 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 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 antiindemnity statutes. To hold otherwise would permit Southern Union to circumvent the antiindemnity 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 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.
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{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 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).

{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,
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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.

{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

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.
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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, 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 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. 
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IV. Effect of the Construction Anti-Indemnity Statute on the Indemnity 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 antiindemnity 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 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 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
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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 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 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
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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 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

Topic Index for Holguin v. Fulco Oil Servs., LLC, Docket No. 29,149

AE APPEAL AND ERROR

AE-SR Standard of Review 

CP CIVIL PROCEDURE

CP-SJ Summary Judgment

CN CONTRACTS
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CN-ID Indemnification Agreement

CN-IN Interpretation

CN-PP Public Policy

ST STATUTES

ST-IP Interpretation

ST-LI Legislative Intent

ST-RC Rules of Construction