2013 NMCA 021
N.M. Ct. App.2013Background
- Safeway owned a Gallup grocery store; Rooter installed a diaper-changing table in 2005.
- In 2006, plaintiffs were injured when the table dislodged; suit included multiple theories against Safeway and Rooter.
- Safeway sought defense, indemnification, and insurance coverage from Rooter under a contractual indemnity/defense/insurance clause; Rooter did not name Safeway as additional insured.
- District court granted Rooter’s summary judgment voiding the indemnity provision under NMSA 1978, § 56-7-1 (1971, as amended through 2005);未 addressed which version applied.
- At trial, jury apportioned 40% fault to Safeway and 60% to Rooter; Safeway appealed alleging improper summary judgment on indemnification and defense/insurance.
- Court held: the 1971 version governs contract terms (indemnity void), but common law indemnification survives; defense/insurance under the 1971 version remains enforceable and issues of fact precluded summary judgment on defense/insurance duties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which version of § 56-7-1 governs | Safeway argues amended 2003 version controls due to post-signing events. | Rooter argues the governing version is the one in effect at contract signing. | Governing version is the signing-time 1971 statute. |
| Contractual indemnification enforceability | Indemnity provision void under 1971; common law may still apply. | Indemnity provision void under 1971; no contractual indemnity. | Indemnification provision unenforceable under 1971; no contractual indemnity. |
| Common law indemnification viability | Safeway may recover indemnification from Rooter under common law despite § 56-7-1. | Common law indemnification barred or limited by statute. | Genuine issues of material fact regarding passive vs active conduct precluded summary judgment; common law indemnification exists and may apply. |
| Duty to defend and insure under the contract | Contract requires Rooter to defend/insure Safeway; issues remain unsettled after 1971 version. | Defense/insurance provisions may be unenforceable under amended statute. | Under 1971 version, defense and insurance provisions are enforceable; summary judgment improper on those duties. |
Key Cases Cited
- Windham v. L.C.I.2, Inc., 2012-NMCA-001, 268 P.3d 528 (N.M. Ct. App. (2012)) (applies statute in force at contract signing for retroactivity questions)
- Holguin v. Fulco Oil Servs. L.L.C., 2010-NMCA-091, 149 N.M. 98, 245 P.3d 42 (N.M. Ct. App. (2010)) (amendments allowing indemnification for indemnitor negligence; retroactivity discussed)
- Sierra v. Garcia, 106 N.M. 573, 746 P.2d 1105 (N.M. Supreme Court (1987)) (prior version of statute; indemnity for indemnitor negligence discussed)
- In re Vista Hills Retaining Wall Litig., 119 N.M. 542, 893 P.2d 438 (N.M. Supreme Court (1995)) (common law indemnification for passive tortfeasor; all-or-nothing recovery)
- Otero v. Jordan Rest. Enters., 1996-NMSC-047, 122 N.M. 187, 922 P.2d 569 (N.M. Supreme Court (1996)) (nondelegable duty doctrine; passive/active conduct distinction guidance)
- BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, 146 N.M. 717, 213 P.3d 1146 (N.M. Ct. App. (2009)) (duty to defend arising from contract provisions; indemnity distinction clarified)
- Trujillo v. Berry, 106 N.M. 86, 738 P.2d 1331 (N.M. Supreme Court (Ct. App. 1987)) (active vs passive conduct; indemnity framework)
- Budget Rent-A-Car Sys., Inc. v. Bridgestone, 2009-NMCA-013, 145 N.M. 623, 203 P.3d 154 (N.M. Ct. App. (2009)) (passive/active conduct standard in indemnification context)
- Sims v. Sims, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153 (N.M. Supreme Court (1996)) (common law fills gaps not addressed by statute)