OPINION
¶ 1 This appeal arises out of a construction defect lawsuit filed by a condominium association against a general contractor, Appellee MT Builders, L.L.C., and others. In response to the association’s claims against it, MT Builders sought indemnity from its subcontractors, including Appellant Fisher Roofing Inc., under what is known as a “narrow form” indemnity provision that restricted indemnity “to the extent” of the subcontrac *301 tor’s negligence. After MT Builders settled the association’s claims against it, MT Builders eventually obtained summary judgment on its indemnity claim against Fisher.
¶ 2 On appeal, Fisher challenges the superior court’s construction and application of the indemnity provision and argues the court should not have granted summary judgment against it because the facts regarding its own negligence and the reasonableness of MT Builders’ settlement with the association were in dispute. In part, we agree. Further, we agree with Fisher that it was not barred from contesting these matters because it failed to accept MT Builders’ tender of defense. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶3 In January 2001, MV Condominium Association, Inc. (“Association”) filed a construction defect lawsuit against various entities involved in the development, sale and construction of a condominium project, including the project’s general contractor, MT Builders, and its roofing subcontractor, Fisher. The Association claimed MT Builders, Fisher and other defendant subcontractors had breached implied warranties of workmanlike performance, fitness and habitability. MT Builders, Fisher and the other defendant subcontractors denied the Association’s claims.
¶ 4 Subsequently, seeking indemnity and asserting breach of a duty to defend, MT Builders filed a cross-complaint against Fisher and the other defendant subcontractors and a third-party complaint against other subcontractors not initially sued by the Association. MT Builders rested its claims against all of the subcontractors on an indemnity provision contained in the standard subcontract agreement it had used with all of the subcontractors. This provision provided as follows:
20. To the fullest extent permitted by law, the Subcontractor shall indemnify and hold harmless the Owner, Architect and the Builder and all their agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees and court costs, arising out of or resulting from the performance or non performance [sic] of the Subcontractor’s Work under this Subcontract, provided that any such claims, damage, loss or expense is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property including the loss of use resulting therefrom, to the extent caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified thereunto. Such obligations shall not be construed to negate, or abridge, or otherwise reduce any other right or obligations of indemnity which would otherwise exist as to any party or person described in this paragraph.
¶ 5 In late 2002, MT Builders, along with several others, entered into a settlement agreement with the Association (“the settlement”). In exchange for $1,750,000 (“settlement sum”) from MT Builders, the Association released its claims against MT Builders. The Association also assigned to MT Builders its direct claims against several of the defendant subcontractors, including Fisher. Fisher was not a party to MT Builders’ settlement agreement with the Association.
¶ 6 After protracted and extensive briefing, see infra ¶¶ 39-48, the superior court subsequently entered summary judgment for MT Builders on its indemnity claim against Fisher. The judgment awarded MT Builders $240,523 in indemnity damages and $113,685.50 in attorneys’ fees and defense costs it had incurred in defending itself against the Association’s claims and in seeking indemnity from Fisher.
¶ 7 Fisher timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) and -2101(B) (2003).
DISCUSSION
I. Validity of the Indemnity Claim
¶ 8 As an initial matter, Fisher argues, as it did in the superior court, that MT Builders *302 did not have a valid indemnity claim because MT Builders’ settlement with the Association failed to discharge any claims the Association had against Fisher. Fisher further argues the Association’s assignment of its direct claims against Fisher to MT Builders means these claims were never extinguished and, thus, MT Builders never suffered any loss on those claims.
¶ 9 Fisher’s argument is not well taken; it rests on a fundamental misunderstanding of its obligations under the indemnity provision at issue in this case and what those obligations mean.
¶ 10 Whether MT Builders had a valid indemnity claim requires us to interpret the indemnity provision and thus presents a question of law we review de novo.
Thomas v. Liberty Mut. Ins. Co.,
¶ 11 “A contractual right of indemnity may accrue upon the happening of one or both of two events. Indemnification against liability applies once liability for a cause of action is established; the indemnitee is not required to make actual payment.”
INA,
¶ 12 The indemnification provision at issue here obligated Fisher to “indemnify and hold harmless” MT Builders “from and against all claims, damages, losses and expenses” under certain specified conditions. This wording constitutes an agreement to indemnify for loss.
Cf. Skousen v. W.C. Olsen Inn Co.,
¶ 13 The record reflects the Association’s claims against MT Builders relating to Fisher rested on alleged defects and negligent workmanship growing out of Fisher’s work under the subcontract (“Fisher-based claims”). 1 MT Builders paid the Association *303 the settlement sum to settle the Fisher-based claims because it was potentially liable for Fisher’s allegedly defective work. In so doing, it incurred a loss. This loss did not become a “non-loss” because the Association assigned its direct claims against Fisher to MT Builders. Nothing in the indemnity provision conditioned MT Builder’s indemnification rights on obtaining a discharge for Fisher of Fisher’s potential liability to the Association. 2 As a matter of law, MT Builders had a valid indemnity claim against Fisher, and the Association’s assignment of its direct claims against Fisher to MT Builders did not change that.
II. Fault, the Duty to Defend, Preclusion and Reasonableness
A. Fault
¶ 14 Fisher next argues MT Builders was not entitled to recover indemnity damages and the expenses it incurred in defending against the Fisher-based claims except to the extent those damages and expenses were caused by its (that is, Fisher’s) negligent work. In other words, it argues its indemnity obligation was limited to only those losses and expenses caused by its own fault (causation plus negligence equals fault).
Cf. Hutcherson v. City of Phoenix,
¶ 15 In response, MT Builders argues it did not need to prove fault to obtain indemnification. Alternatively, it asserts Fisher lost or forfeited the right to dispute fault, and thus indemnity liability, because it failed to accept MT Builders’ tender of defense. This argument presupposes the indemnity provision imposed on Fisher a duty to defend MT Builders against the Association’s Fisher-based claims. 3
¶ 16 To resolve these arguments, which present issues of law subject to de novo review,
see Thomas,
[Ijndemnify and hold harmless ... [MT Builders] ... from and against all claims, damages, losses and expenses, including but not limited to attorney’s fees and court costs, arising out of or resulting from the performance or non performance [sic] of the Subcontractor’s Work under this Subcontract ... to the extent caused in whole or in part by any negligent act or omission of the Subcontractor or anyone directly or indirectly employed by him or anyone for *304 whose acts he may be liable, regardless of whether it is caused in part by a party indemnified thereunto.
Based on the plain language of this indemnity provision, we agree with Fisher that, to obtain indemnity, MT Builders was required to prove the extent of Fisher’s fault.
¶ 17 The provision limited Fisher’s indemnity obligation “to the extent caused in whole or in part by any negligent act or omission of the Subcontractor.” 4 The word “negligent” modifies the words “act” and “omission” and imposes a fault standard. Cf. Justin Sweet, Sweet on Construction Industry Contracts: Major AIA Documents § 20.7, at 553 (2d ed.1992) (discussing indemnity provision in AIA Document A201-1987, General Conditions of the Contract for Construction, ¶ 3.18.1). This language creates what is known as a “narrow form” of indemnification — the indemnitor’s obligation only covers the indemnitee’s losses to the extent caused by the indemnitor or a person the indemnitor supervises or is responsible for (collectively, “supervisees”). See generally Justin Sweet & Jonathan J. Sweet, Sweet on Construction Industry Contracts: Major AIA Documents § 19.02, at 622 (4th ed. 1999 & Supp.2007).
¶ 18 Although the parties have not cited, nor have we found, any reported Arizona case construing the indemnity language at issue here,
5
other courts have construed this or virtually identical language as creating a comparative fault or negligence arrangement whereby the indemnitor’s liability is limited “to the extent” it and its supervisees were at fault.
6
Eastr-Harding, Inc. v. Horace A. Piazza &
Assocs.,
B. The Duty to Defend
¶ 19 The issue then becomes: did Fisher lose the right to dispute its fault when it rejected MT Builders’ tender of defense and failed to defend MT Builders against the Association’s Fisher-based claims? 7 MT *305 Builders answers this question “yes,” reasoning Fisher’s obligation to hold it harmless necessarily required Fisher to actually defend MT Builders against the Association’s claims. To decide whether, as MT Builders argues, Fisher owed it a duty to defend, which it then breached, we again turn to the wording of the indemnity provision.
¶20 On its face, the indemnity provision did not require Fisher to defend MT Builders; the word “defend” is notably absent. Instead, the parties agreed Fisher’s obligation to indemnify and hold MT Builders harmless from and against all claims 8 would be limited “to the extent caused in whole or in part by” Fisher’s negligence. In our view, the “to the extent” phrase prevents any interpretation of the indemnity provision as creating a duty to defend. 9 A claim is defended necessarily before it is decided; but the language used here envisioned a determination of Fisher’s fault before Fisher would be required to indemnify and hold MT Builders harmless against all claims. We cannot square the language of this indemnity provision with a duty to defend existing in advance of a determination of fault.
¶ 21 Of significance is MT Builders’ failure to explain what the language “to the extent caused in whole or in part by any negligent act or omission of the Subcontractor” means. Instead, relying principally on this court’s decision in INA, it argues we have recognized that the words “hold harmless ... against all claims” require an indemnitor to defend its indemnitee and, as in the insurance context, such a duty exists without proof of fault because the duty to defend is broader than the duty to indemnify. MT Builders’ reliance on INA is misplaced, and we are not persuaded, under the facts of this case, that an indemnitor and a liability insurer should be treated the same. 10
¶ 22 In
INA,
a homeowner sued her insurance carrier and its agent and asserted the carrier and the agent had wrongfully refused to pay her fire loss claim.
¶
23 We
rejected the carrier’s argument the allegations in the homeowner’s complaint controlled the agent’s contractual right to indemnity.
Id.
at 258,
The duty to defend, however, is not the same as the duty to indemnify. The duty to defend arises at the earliest stages of litigation and generally exists regardless of whether the insured is ultimately found hable. The duty to indemnify depends on whether the indemnitee engaged in actual, active wrongdoing. [11] The accrual of the obligation to provide a defense does not control the accrual of the obligation to indemnify.
Id.
at 255,
¶ 24 We then rejected the carrier’s argument that the agency agreement only provided indemnification for damages, not attorneys’ fees: “A party is not ‘held harmless’ unless the indemnitor bears the indemnitee’s costs of defending the third party’s claim.” Id.
¶ 25 In discussing the carrier’s indemnity obligations to the agent, we did not, as MT Builders suggests, establish a rule that a contractual promise to “hold harmless” by itself creates an immediate, up-front duty to defend. Instead, we recognized an indemnitor’s promise to hold harmless would allow an indemnitee to recover its defense costs if a claim was made against it that entitled it to indemnification. 12 We held, absent a duty to indemnify, the carrier was under no obligation to pay the E and 0 insurer’s defense costs. Id. We stated:
The accrual of the right to indemnity is important here ... to illuminate a basic principle of indemnity. The right exists when there is a legal obligation on the indemnitee to pay or a sum is paid by him for which the indemnitor should make reimbursement. Such an obligation or sum cannot be imposed solely by a third party’s unproven allegations against the indemnity parties, but requires factual determinations.
Id.
at 253,
¶ 26 Further, even if we were to assume an insurance policy is analogous to an indemnity agreement, we have recognized the language of the insurance policy controls the scope and extent of the insurer’s duty to defend.
Lennar Corp. v. Auto-Owners Ins. Co.,
¶27 MT Builders argues conditioning a subcontractor’s duty to defend on a determination of the extent of its fault would be “absurd” because the general contractor might have to wait “months or years” before receiving a defense. MT Builders makes a good point; as a practical matter, an indemnity provision obligating a subcontractor to defend the general contractor but imposing such a limitation might end up being of little value — by the time the extent of the subcontractor’s fault has been determined, the general contractor might no longer need a defense. But this case does not present such a situation; we are not dealing with an indemnity provision that requires the indemnitor to defend its indemnitee. Parties are free to contract,
Smith v. Saxon,
C. Preclusion
¶ 28 Relying on
Cunningham v. Goettl Air Conditioning, Inc.,
¶29 In
Cunningham,
our supreme court discussed when a stipulated judgment in favor of a third person and against an indemnitee could bind the indemnitor. Applying Restatement (Second) of Judgments § 57 (1982), the court held that when an indemnity obligation exists, an indemnitor will be barred from disputing the existence and extent of its indemnitee’s liability to a third person if the indemnitor had reasonable notice of the third person’s action, refused to assume or participate in the indemnitee’s defense and the indemnitee defended the action with due diligence and reasonable prudence.
¶ 30 In
Damron,
the court discussed whether a default judgment could bind an insurer that refused to defend its insured in a tort action. The insured settled the case, assigned to the plaintiff any rights he had against the insurer for bad faith in refusing to defend, withdrew his answer and “let the case go by default” in exchange for a covenant not to execute.
¶31 Neither case supports MT Builders’ argument that its settlement with the Association determines the existence and extent of Fisher’s indemnity liability. The issue in
*308
each case was whether a judgment in favor of a third person and against the indemnitee/insured could bind the indemnitor/insurer from contesting the existence and scope of the indemnitee/insured’s liability to the third person. Neither case held the judgment barred the indemnitor/insurer from contesting its own liability to its indemnitee/insured.
See infra
¶ 35. Indeed, the supreme court in
Cunningham
explicitly recognized the agreement between the indemnitor and indemnitee, not the stipulated judgment, determined the extent of the indemnitor’s liability to its indemnitee.
¶ 32 Therefore, although Fisher failed to accept MT Builders’ tender of defense, Fisher’s refusal to do so did not bar it from contesting its own fault and whether it was under an obligation to indemnify and hold MT Builders harmless from the loss it sustained when it settled the Association’s Fisher-based claims.
D. Reasonableness
¶ 33 Although
Cunningham
and
Damron
do not, as MT Builders argues, hold an indemnitee’s settlement with a third party will control the existence and extent of the indemnitor’s indemnity liability, they are in accord with the approach taken by many courts regarding the right of an indemnitee to recover against an indemnitor when, as here, before liability is determined, the indemnitee settles an action against it by a third party. Under this approach, subject to an important qualification we discuss below,
see infra
¶ 35, when an indemnitee settles a lawsuit covered by an indemnity agreement, it may obtain indemnity from its indemnitor if it gave the indemnitor notice of the action and an opportunity to defend and demonstrates the decision to settle was, under the circumstances, reasonable and prudent.
S. Ry. Co.,
¶ 34 This approach is subject to an important qualification: the indemnitee is only entitled to indemnity if the third party’s action was covered by the indemnity agreement.
Cunningham,
¶ 35 Whether an indemnitee’s decision to settle is reasonable and prudent
*309
under the circumstances will normally present a question of fact. In
Morris,
our supreme court explained what this standard meant in the insurance context; we find its explanation appropriate in the indemnity context: “The test as to whether the settlement was reasonable and prudent is what a reasonably prudent person in the insureds’ position would have settled for on the
merits
of the claimant’s case. This involves evaluating the facts bearing on the liability and damage aspects of claimant’s case, as well as the risks of going to trial.”
the settlement consists of two components which are interrelated. The fact finder must look at the amount paid in settlement of the claim in light of the risk of exposure. The risk of exposure is the probable amount of a judgment if the original plaintiff were to prevail at trial, balanced against the possibility that the original defendant would have prevailed. If the amount of the settlement is reasonable in light of the fact finder’s analysis of these factors, the indemnitee will have cleared this hurdle. The fact that the claim may have been successfully defended by a showing of contributory negligence, lack of negligence or otherwise, is but a part of the reasonableness analysis and, therefore, subject to proof.
(Citations omitted.)
¶ 36 The burden is on the indemnitee to show its settlement was reasonable and prudent.
Id.
at 36;
Valloric,
[T]he releasing person’s damages; the merits of the releasing person’s liability theory; the merits of the released person’s defense theory; the released person’s relative faults; the risks and expenses of continued litigation [on the merits]; ... any evidence of bad faith, collusion, or fraud; the extent of the releasing person’s investigation and preparation of the ease; and the interests of the parties not being released.
Id.
at 42, ¶ 33,
¶ 37 With these principles in mind, we turn to Fisher’s argument that fact issues regarding the extent of its fault and the reasonableness of MT Builders’ settlement with the Association precluded summary judgment.
III. Fact Issues
A. Background
¶ 38 After MT Builders had settled or otherwise resolved its indemnity claims against all but Fisher and two other subcontractors, it moved for summary judgment against Fisher and the two remaining subcontractors (“2003 motion”) and asserted an argument we have rejected in this opinion — that the subcontractors were barred from disputing their liability under the indemnity provision and were bound by the settlement because they had failed to accept MT Builders’ tender *310 of defense. MT Builders also argued that because the settlement sum was less than what its and the Association’s experts had determined would be needed to repair all of the construction defects, $1,756,297 and $7,408,264, respectively, its settlement with the Association was non-collusive, non-fraudulent, fair and reasonable. MT Builders’ and the Association’s experts had also estimated it would take at least $86,000 and $856,000, respectively, to repair the roofs. Fisher and the two other remaining subcontractors opposed MT Builders’ motion.
¶ 39 The superior court granted MT Builders’ motion “in its entirety” (“2004 indemnity ruling”). The court ruled, contrary to what we are now holding in this opinion, that “[t]he subcontractors’ duties to defend and indemnity [sic] [were] not dependent upon an ultimate finding of negligence.” Although the court did not specifically find MT Builder’s settlement of the Association’s claims was reasonable, it found the subcontractors were “bound by MT Builders’ settlement and [were] not excused by any of their several arguments seeking excusal.” Thereafter, in the normal course, the case was assigned to a different division of the superior court and thus to a different superior court judge.
¶ 40 Pursuant to the 2004 indemnity ruling, MT Builders asked the court to enter a judgment on its indemnity claim against the three subcontractors in the amount of the settlement sum. It also sought reimbursement for the attorneys’ fees, litigation-related expenses (including expert witness fees) and court costs it had incurred in defending against the Association’s claims as well as an award of the fees and costs it had incurred in pursuing its indemnity claim. In a series of orders, the court essentially reconsidered much of the 2004 indemnity ruling and held that, to obtain what the parties began to call “indemnity damages” and to recover the expenses it had incurred in defending against the Association’s claims, MT Builders would have to prove the extent of Fisher’s fault, that is, causation and negligence.
¶ 41 After further briefing by the parties, the court found MT Builders had incurred $525,082 in expenses (attorneys’ fees, expert witness fees, other litigation-related expenditures and court costs) in defending against the Association’s claims and in pursuing its indemnity claim. Apparently adopting a suggestion submitted by one of the other subcontractors, the court determined that because MT Builders had originally sought indemnity from 19 different subcontractors, each of the three remaining subcontractors would be required to indemnify MT Builders for l/19th of that portion of the $525,082 pertaining to MT Builders’ pre-settlement expenses ($439,817) and, because only the three subcontractors remained in the case after the settlement, l/3rd of its post-settlement expenses ($85,265). After Fisher and the two other subcontractors objected to a form of judgment lodged by MT Builders, the court realized it had not resolved the allocation and amount of indemnity damages that should be assessed against the subcontractors.
¶ 42 Subsequently, the court ruled genuine issues of material fact existed regarding each subcontractor’s “liability to indemnify MT Builders for damages directly resulting from the specific defective performance of’ each particular subcontractor. The court set the matter for trial. The issue identified by the court, however, was never tried. MT Builders settled with the two other subcontractors, and the court resolved the issue as to Fisher based on competing motions for summary judgment filed by Fisher and MT Builders.
¶ 43 In its motion, Fisher argued MT Builders had failed to disclose any evidence and thus could not prove at trial, first, how much it had actually paid to settle the Fisher-based claims; second, whether it had reasonably defended the Fisher-based claims; and third, whether the sum it had paid to settle the Fisher-based claims was reasonable. In response, MT Builders argued the court had decided the “reasonableness” issue in its 2004 indemnity ruling, see supra ¶ 40, but even if the issue had not been decided, the settlement was reasonable, again noting the settlement sum was less than what the experts had estimated would need to be spent to repair all of the construction defects, see supra ¶ 39. It further argued these cost estimates provided ample evidence of the defects attributable to Fisher’s work and *311 what portion of the settlement sum should be allocated to its settlement of the Fisher-based claims. It also identified witnesses who could testify regarding the reasonableness of the settlement and asserted it had reasonably defended the Fisher-based claims by hiring experts who had investigated the claims and by actively participating in written discovery.
¶ 44 In its motion, MT Builders argued the amount of money the Association had actually spent in 2004 on roof reconstruction and repairs, $240,523, constituted the best evidence of what portion of the settlement sum should be attributable to Fisher’s work and its settlement of the Fisher-based claims. Asserting untimely disclosure, it also asked the court to prohibit Fisher from disputing this evidence by relying on a report and affidavit from a roofing defect expert, Gene Lawrence. In his report and affidavit, Lawrence described the defects as the type “usually corrected by a punch list process,” and stated the total reasonable repair cost would be “in the vicinity of $32,000.” He further stated that if the Association’s roofing claims had been included in MT Builders’ settlement with the Association, “only a small amount of this settlement amount should have been allocated to resolve the roof issues.”
¶ 45 Disputing the late disclosure accusation, Fisher requested permission to use Lawrence’s opinions at trial. It further argued the amount ultimately paid by the Association for roof repairs was irrelevant because MT Builders was required to prove what amount it had actually paid to settle the Fisher-based claims and whether that amount was reasonable.
¶ 46 The court granted MT Builders’ motion and denied Fisher’s motion 15 It ruled: “Mt [sic] Builders has presented competent admissible evidence of the full amount of damages it suffered as a result of Fisher Roofing’s negligence. Fisher Roofing has failed to present any competent admissible evidence to establish that the repairs or the amount paid for them were unreasonable.”
¶ 47 Subsequently, the court rejected Fisher’s request that it clarify its ruling because triable issues of fact remained regarding Fisher’s alleged negligence:
Fisher Roofing’s own expert provided a report detailing the roofing defects and necessary repairs. MT Builders ... provided the Court with a detailed summary of the actual roofing repairs made and the costs thereof____ Nowhere in its opposition to MT Builders’ motion or at the oral argument of the same did Fisher ever suggest or support a suggestion that there remained any material issues of fact as regards its liability; Fisher chose only to contest the reasonableness and necessity of the roofing repairs without competent admissible evidence to support their defense! [16]
B. Fact Issues
¶ 48 We disagree with the superior court— genuine issues of fact remained to be tried before MT Builders was entitled to indemnity from Fisher. 17 The court should not, therefore, have granted MT Builders summary judgment. We begin with what we *312 have called in this opinion “fault” — that is, causation and negligence.
¶ 49 As discussed above, MT Builders was entitled to indemnity “to the extent” its losses and expenses were caused in whole or in part by Fisher’s negligence. Although MT Builders presented the court with evidence that some of Fisher’s work had been defective and negligently performed, the court was presented with conflicting evidence regarding the extent and nature of the alleged defects and negligence. As Fisher points out, in its summary judgment motions MT Builders relied on information concerning Fisher’s work developed by the Association’s experts that not only conflicted with MT Builders’ experts, but also conflicted with Fisher’s expert who considered the defects to be of the “punch list” variety and de mini-mus in nature. The repair cost estimates developed by these competing experts reflected this conflict, ranging from the Association’s high of $856,223, to MT Builders’ $86,000, to Fisher’s low of “in the vicinity” of $32,000. The evidence showing what the Association actually spent on roof repairs in 2004, $240,523, only added to the confusion regarding the extent of Fisher’s alleged fault and, thus, the losses incurred by MT Builders that could be attributed to Fisher’s fault and allocated to its settlement of the Fisher-based claims.
¶ 50 To obtain indemnity, MT Builders was required to prove the extent of Fisher’s fault and what portion of the settlement sum was attributable to that fault. The evidence it presented on these issues was in conflict, and it was not, therefore, entitled to summary judgment.
¶ 51 Further, as discussed above, MT Builders was not entitled to indemnity unless it demonstrated the amount it had paid to settle the Fisher-based claims was reasonable and prudent under the circumstances. Whether a settlement meets this standard requires the finder of fact to evaluate the facts pertaining to liability, the claimed damages, and the risks of going to trial and to compare these facts with the nature and the size of the settlement. See supra ¶ 36. Here, the nature and size of MT Builders’ settlement of the Fisher-based claims was a moving target and the court was never in a position to make this comparison.
¶ 52 Although the repair estimates and the amount the Association spent to repair the roofs constituted probative evidence regarding the damages caused by Fisher’s fault,
see Heppler v. J.M. Peters Co.,
IV. Fees, Expenses and Costs
¶ 53 On appeal, Fisher has challenged various aspects of the superior court’s rulings regarding MT Builders’ right to recover the fees, expenses and costs it incurred in defending against the Association’s Fisher-based claims. Because certain of these issues are likely to arise on remand, we address them now.
*313 ¶ 54 Fisher first argues it disputed the amount of attorneys’ fees, expenses and costs MT Builders actually incurred ($439,817) in defending against the Association’s claims. See supra ¶42. We disagree. The record reflects MT Builders provided the court with detailed information regarding the fees, expenses and costs it had incurred. Although Fisher objected to MT Builder’s entitlement to these fees, expenses and costs, asserting the court could not award them without first determining what portion was related to Fisher’s fault, Fisher never contested any of the amounts comprising the $439,817. On remand, MT Builders does not need to reprove this amount.
¶ 55 Under the indemnity provision, however, MT Builders’ recovery of its fees, expenses and costs is limited to those expenditures “arising out of or resulting from” Fisher’s work under the subcontract “to the extent caused in whole or in part” by Fisher’s negligence. The court will need to allocate or apportion the fees, expenses and costs accordingly. The parties have not addressed how the court should do this. Other courts, when applying identical or virtually identical indemnity provisions, have awarded defense costs based on the same percentage of fault attributed to the indemnitor for the plaintiffs injuries.
See, e.g., Nusbaum,
¶ 56 Fisher next argues the indemnity provision did not allow MT Builders to recover expert witness fees because such fees are not considered recoverable court costs under A.R.S. § 12-332 (2003). Fisher misreads the indemnity provision, and MT Builders is entitled to recover expert witness fees. The indemnity provision did not limit indemnity to court costs; it authorized indemnity for “all claims, damages, losses and expenses, including but not limited to attorney’s fees and court costs.”
¶ 57 Fisher finally argues MT Builders is not entitled to recover fees and costs for pursuing its indemnity claim under either the subcontract or A.R.S. § 12-341.01 (2003). The subcontract requires a “prevailing party” 18 and the statute requires a “successful party.” Because we have reversed the summary judgment originally awarded in MT Builders’ favor, it no longer is the prevailing or successful party and is not, at this time, entitled to an award of fees and costs under either the subcontract or the statute.
V. Attorneys’ Fees and Costs on Appeal
¶ 58 Both parties have requested an award of attorneys’ fees on appeal. Because neither party has yet to prevail, we deny their requests with leave to the superior court to consider awarding the prevailing party the attorneys’ fees it incurred on appeal. However, Fisher is entitled to an award of costs on appeal pursuant to A.R.S. § 12-341 (2003) upon its compliance with Arizona Rule of Civil Appellate Procedure 21.
CONCLUSION
¶ 59 For the foregoing reasons, we affirm in part and reverse in part the superior court’s judgment and remand for further proceedings consistent with this opinion.
Notes
. Under its subcontract with MT Builders, Fisher was to "furnish all material and labor to install all tile and built-up roofing for 16 ea. apartment bldgs., clubhouse and 5 ea. detached garage bldgs, per plans"; "dormer vents and painting of such included”; "inspect roofs prior to roofing *303 for proper nailing and blocking — report any problems to the job superintendent”; and “comply with OSHA full protection requirements.”
. In general, in an action for common law indemnity, the indemnity plaintiff must show, first, it has discharged a legal obligation owed to a third party; second, the indemnity defendant was also liable to the third party; and third, as between itself and the defendant, the obligation should have been discharged by the defendant. Absent consent or fault of the defendant, the plaintiff must show it has extinguished its own
and.
the defendant’s liability to prove it has discharged the obligation to the third party in satisfaction of the first element.
Am. & Foreign Ins. Co. v. Allstate Ins. Co.,
. A duty to defend is a "specific obligation to assume, upon tender, the defense obligations and costs of another.” Steven G.M. Stein & Shorge K. Sato,
Advanced Analysis of Contract Risk-Shifting Provisions: Is Indemnity Still Relevant?,
27 Construction Lawyer 5, 9 (Fall 2007). Or, as described in
Crawford v. Weather Shield Mfg.,
. The provision also limited Fisher's indemnity obligation to losses and expenses caused by and linked to its work ("arising out of or resulting from the performance or non performance [sic] of the Subcontractor’s Work under this Subcontract”). As one commentator has recognized, “Nearly every indemnily provision contains language limiting the indemnitor’s obligation to loss occasioned in some way or another to the activities or work of the indemnitor. Frequently, this limitation will begin with the phrase 'arising out of.’ ” 3 Philip L. Bruner & Patrick O’Connor, Jr., Burner and O’Connor on Construction Law § 10:58 (2002 & Supp.2008) (footnote omitted).
. Although worded differently, the indemnity provision in
INA
only obligated the indemnitor to indemnify the indemnitee against damages caused by an error or omission in the indemnitor's work.
INA,
. In
Washington Elementary Sch. Dist. No. 6 v. Baglino Corp.,
. In the superior court, Fisher unsuccessfully argued that even if it owed MT Builders a duty to defend, its performance of that duty was excused because it had an "inherent” conflict of interest with MT Builders and MT Builders had never properly tendered its defense. On appeal, without any analysis, Fisher raises these arguments in a one sentence footnote. We decline to address these arguments and deem them waived.
See Schabel v. Deer Valley Unified Sch. Dist. No. 97,
. We note, without expressing agreement, that some courts have held the duty to "indemnify and hold harmless” against claims does not impose on the indemnitor an immediate duty, upon request, to provide and pay for the ongoing defense of claims against the indemnitee, regardless of the indemnitor’s ultimate liability for those claims, when the indemnity provision fails to impose on the indemnitor an explicit obligation to defend. These courts have interpreted this language as only requiring the indemnitor to reimburse the indemnitee for defense costs.
See, e.g., Rogers & Babler v. State,
. MT Builders focuses on the language in the indemnity provision requiring Fisher to indemnify and hold it harmless "against all claims” in arguing Fisher owed an immediate duty to defend MT Builders against the Fisher-based claims. However, a cardinal rule of contract construction requires us to look at the agreement as a whole, reading each part in light of all other parts.
C & T Land & Dev. Co. v. Bushnell,
. MT Builders also cites
Hauskins v. McGillicuddy,
11. Our statement that "[t]he duty to indemnify depends on whether the indemnitee engaged in actual, active wrongdoing” must be considered in the context in which it was made. Under common law indemnity, the party seeking indemnification must "be proven free from negligence."
Herstam v. Deloitte & Touche, LLP,
. We note the indemnity provision in INA did not impose a separate and distinct defense obligation. Thus, the only issue before us was whether a duty to hold harmless and indemnify against liability was sufficiently broad enough to allow the indemnitee to obtain reimbursement for its defense costs.
. Accordingly, we concluded the E and 0 carrier and the agent were only entitled to recover defense costs attributable to claims against the agent that entitled him to indemnity, and had to bear those costs related to claims against the agent for only his own wrongdoing.
. In discussing the cases cited by the carrier, we stated "[i]t is true that the obligation to indemnify may be satisfied either by defending the indemnitee or by paying the indemnitee's costs of defense
if the claim is covered by the indemnity agreement.”
. Although the court did not explicitly rule on the nondisclosure charge, it referred to the Lawrence report in denying Fisher's request for clarification.
16. In refusing to clarify its ruling, the court stated Fisher had failed, in both its written and oral responses to MT Builders’ motion, to suggest fact issues existed regarding its liability. We disagree with the court’s assessment of the record. Throughout the course of this litigation, Fisher had argued MT Builders was not entitled to indemnity without proving fault. It reminded the court of its position by quoting from prior rulings of the court in its briefing on its "reasonableness” motion which the court considered at the same time it considered MT Builders’ motion (indeed, the parties’ briefing on the two motions overlapped). Further, Fisher pointed out the shifting positions taken by MT Builders about the amount of its indemnity damages, and thus the extent of its fault, and also argued MT Builders’ evidence regarding what the Association had paid to make roof repairs was not probative evidence of its fault. On the record presented to the superior court, we cannot conclude Fisher abandoned its right to contest indemnity liability.
. "In reviewing a motion for summary judgment, we determine de novo whether any genuine issues of material fact exist.”
Brookover v. Roberts Enters., Inc.,
. MT Builders’ subcontract with Fisher provided: "In the event either party of this Agreement shall institute an action to enforce any provisions hereof, the prevailing party shall be entitled to recover from the losing party such additional sum as the court may adjudge as reasonable costs, including attorneys’ fees, in connection with such suit.”