Under Construction - June 2013: New Mexico’s Anti-Indemnity Act and Additional Insured Provisions

by Snell & Wilmer

The New Mexico Anti-Indemnity Act related to construction projects was adopted to “promote safety in uniquely hazardous work place environments,” like construction sites, by holding each party accountable for its actions on a construction site. See N.M.S.A. § 56-7-1 (“the Act”). The Act reads, in pertinent part:

  1. A provision in a construction contract that requires one party to the contract to indemnify, hold harmless, insure or defend the other party to the contract, including the other party's employees or agents, against liability, claims, damages, losses or expenses, including attorney fees, arising out of bodily injury to persons or damage to property caused by or resulting from, in whole or in part, the negligence, act or omission of the indemnitee, its officers, employees or agents, is void, unenforceable and against the public policy of the state.
  2. A construction contract may contain a provision that, or shall be enforced only to the extent that, it:
    1. requires one party to the contract to indemnify, hold harmless or insure the other party to the contract, including its officers, employees or agents, against liability, claims, damages, losses or expenses, including attorney fees, only to the extent that the liability, damages, losses or costs are caused by, or arise out of, the acts or omissions of the indemnitor or its officers, employees or agents; or
    2. requires a party to the contract to purchase a project-specific insurance policy, including an owner's or contractor's protective insurance, project management protective liability insurance or builder's risk insurance.

N.M.S.A §§ 56-7-1(A) & (B) (emphasis added). The Act also broadly states its intent to apply to any public or private contract that relates to the construction, alteration, repair or maintenance of any real property in New Mexico, and that it is intended to void any contractual provision that would require a party to name another as an “additional insured” in a way that would indemnify the “additional insureds” own negligence. See N.M.S.A. §§ 56-7-1(E) & (F).[1]

What does this mean, in practical terms, for those involved in construction in New Mexico?  Simply put, it means the New Mexico Anti-Indemnity Act is a broad statement of public policy intended to invalidate any provision of any construction contract that would seek to require one party (the indemnitor) to defend, indemnify, hold harmless or insure another party (the indemnitee) for the indemnitee’s own negligence. The two exceptions to this are those listed in the Act:  (1) indemnity for the indemnitor’s own negligence; or (2) a contractual requirement that a party purchase a project specific insurance policy, including an OCP (owner’s or contractor’s protective), PPLM (project management protective liability) or builder’s risk insurance policy. See N.M.S.A. §§ 56-7-1(B)(1) & (2). In fact, New Mexico courts have gone so far as to hold that a contractual provision seeking indemnity for an indemnitor’s own negligence is severable from a provision seeking indemnity for a party’s own negligence. See Holguin v. Fulco Oil Services, L.L.C., 149 N.M. 98, 107, 245 P.3rd 42, 51 (N.M. App. 2010).

Moreover, to the extent the Act does not address the issue (and it likely does), New Mexico choice of law rules have been held to prevent a contracting party from avoiding the Act through a forum selection clause or by entering a contract in a foreign jurisdiction.  See Tucker v. R.A. Hanson Co., Inc., 956 F.2d 215, 217-18 (10th Cir. 1992) (New Mexico’s public policy preventing indemnity provisions on construction projects requires the statute be applied to any construction project based in New Mexico, regardless of where the contract was entered). Thus, the Act will likely control any project that is physically located in New Mexico.

[1] The Act was amended in 2003 to clarify the scope of the Anti-Indemnity Act. Before 2003, the Act (which was originally adopted in 1971) voided any provision within any construction Contract that sought indemnity for an indemnitee’s own negligence, even if it also sought indemnity for the indemnitor’s negligence. Thus, if a particular contract predates July 2003, the earlier version of the Act may apply. If you have any question about this issue, you should consult with counsel.

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.