Sierra v. Garcia , 106 N.M. 573 ( 1987 )

WALTERS, Justice

(dissenting).

I concur in Justice Ransom’s dissent and respectfully disagree with the analysis and result of the majority opinion.

I am unable to read any explanation, in this case, for treating the contract here under discussion any differently than was the contract in Guitard treated. There is no real distinction between “sole or concurrent negligence” and “negligence in whole or in part,” insofar as that language may be seized upon to distinguish Guitard. It if is “sole,” it is “whole.” If it is “concurrent,” then someone else must have been negligent “in part.”

I think it is incumbent upon the Court to read §§ 56-7-1 and 56-7-2 in a similar manner since those statutes were enacted in the same legislative session and concern the same subject matter, differing only in the kind of work the indemnity contract refers to. Both the statute at issue and Guitard, which addresses the sister statute, make it clear that the evil prohibited is any attempt to contract away the liability for one’s own negligence. Thus, the paragraph in question must be construed as having been intended to be read to say:

Subcontractor shall * * * idemnify and hold harmless Contractor and Owner * * * from any and all liability * * * resulting directly or indirectly from or connected with the [subcontractor’s negligent] performance of this subcontract.

In so reading that paragraph, we would not destroy the Guitard decision, and we would fortify the purpose of the legislation.

For all of the reasons stated in this and Justice Ransom’s dissent, I would reverse the trial court and direct reinstatement of Cook’s third party complaint.