Safeway, Inc. v. Rooter 2000 Plumbing & Drain SSS, 368 P.3d 389

Plaintiffs were injured when a baby changing table installed by Rooter in a Safeway store fell; Plaintiffs sued Safeway and later added Rooter for negligent installation.
Safeway cross-claimed against Rooter for contractual indemnity, defense, and insurance under a 2002 Agreement that required Rooter to “indemnify, defend and hold [Safeway] harmless,” except for Safeway’s sole negligence; Rooter’s insurer refused to defend Safeway.
Rooter moved for summary judgment, arguing the contract was void under NMSA 1978 §56-7-1 (1971) and that Safeway had no common-law indemnity because fault was apportioned; the district court granted summary judgment for Rooter.
Plaintiffs settled with Rooter; the jury at trial against Safeway apportioned fault 60% to Rooter and 40% to Safeway and awarded $450,000 in damages.
The Court of Appeals reversed the district court, holding genuine issues remained about common-law indemnity and that the 1971 statute voided indemnity but not the duty to defend/insure; the Supreme Court granted certiorari.
The Supreme Court affirmed the district court: traditional (common-law) indemnity is not available where the indemnitee was found actively negligent and fault was apportioned under comparative fault; the entire contractual indemnity/defense/insurance clause was void under the 1971 statute.

Issue	Safeway's Argument	Rooter’s Argument	Held
1) Does traditional (common-law) indemnification survive where a jury apportions fault under comparative negligence and finds the would-be indemnitee actively at fault?	Traditional indemnity still exists despite comparative fault; Safeway contends it may recover if it is a passive tortfeasor or under nondelegable/vicarious theories.	Traditional indemnity is inapplicable once fault is apportioned under comparative negligence and each party pays its share; no basis for all-or-nothing indemnity when indemnitee was found actively negligent.	Traditional indemnity does not apply where the jury finds the indemnitee actively at fault and apportions liability under comparative fault; reversed Court of Appeals and affirmed district court on this claim.
2) Is Rooter contractually obligated to defend and insure Safeway under the 2002 Agreement given NMSA §56-7-1 (1971)?	The duty to defend/insure is separable and distinct from indemnity and thus can survive even if indemnity language is void.	The entire indemnity/defense/insurance clause is void under §56-7-1 (1971) when it requires indemnification/defense for the indemnitee’s own negligence; enforcement would violate public policy.	The 1971 version of §56-7-1 voids the entire clause that requires indemnify/defend/insure for the indemnitee’s own negligence; Rooter has no duty to defend or insure Safeway under the Agreement.

Otero v. Jordan Rest. Enters., 122 N.M. 187, 922 P.2d 569 (N.M. 1996) (recognizes traditional indemnity where one party is vicariously liable for another)
Amrep Southwest, Inc. v. Shollenbarger Wood Treating, Inc., 119 N.M. 542, 893 P.2d 438 (N.M. 1995) (adopted proportional indemnification and explained limits of traditional indemnity)
Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (N.M. 1981) (adopted comparative negligence principles in New Mexico)
Bartlett v. N.M. Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579 (N.M. Ct. App. 1982) (rejected joint-and-several liability in pure comparative negligence cases)
Sierra v. Garcia, 106 N.M. 573, 746 P.2d 1105 (N.M. 1987) (held contract clauses barred by §56-7-1 are void in their entirety)
City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 146 N.M. 717, 213 P.3d 1146 (N.M. Ct. App. 2009) (interpreted duty-to-defend language as enforceable when limited to indemnitor’s own negligence)
Rio Grande Gas Co. v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (N.M. 1969) (discussed historical bar on contribution and development of indemnity doctrines)
Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (N.M. 1940) (adopted active/passive and in pari delicto tests for indemnity)