Jane A. Laflin of Butt Thornton & Baehr and Emily Franke (retired from Butt Thornton & Baehr) represented Rooter 2000 Plumbing and Drain SSS in a seminal case on indemnification in New Mexico.
The New Mexico Supreme Court decided Safeway, Inc. v. Rooter 2000 Plumbing and Drain SSS, No. S-1-SC-33969, slip op. (N.M. Sup. Ct. February 18, 2016). The case arises out of a cross-claim for contractual and traditional indemnification. The complaint alleges that Plaintiffs, Briana Fierro and Jason Fierro, suffered injuries when a baby changing table collapsed in a Safeway store, and that the collapse was the result of negligence on the part of Safeway, Inc. (Safeway) and Rooter 2000 Plumbing and Drain SSS (Rooter).
The New Mexico Supreme Court in a detailed decision carefully reviewed whether the right to traditional indemnification is available notwithstanding New Mexico’s adoption of comparative fault where the jury compares and apportions fault among concurrent tortfeasors and whether the contract between Rooter and Safeway is void and unenforceable under NMSA 1978, Section 56-7-1 (1971, amended 2005, (Real property; indemnity agreements.)
The Supreme Court after reviewing the genesis of traditional indemnification and the adoption of contribution and comparative negligence, held that traditional indemnity does not apply when the jury finds a tortfeasor actively at fault and apportions liability using comparative fault principles. The Court also held that the duty to insure and defend provision of the Contract between Rooter and Safeway is void and unenforceable under NMSA 1978, Section 56-7-1 (1971, amended 2005).