AN ACT
RELATING TO INDEMNIFICATION; MAKING VOID CERTAIN
INDEMNIFICATION AGREEMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 56-7-1 NMSA 1978 (being Laws 1971,
Chapter 107, Section 1) is amended to read:
"56-7-1. REAL PROPERTY--INDEMNITY
AGREEMENTS--AGREEMENTS VOID.--
A. 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.
B. 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.
C. This section does not apply to indemnity of a
surety by a principal on any surety bond or to an insurer's obligation to its insureds.
D. As used in this section, "construction
contract" means a public, private, foreign or domestic contract or
agreement relating to construction, alteration, repair or maintenance of any
real property in New Mexico and includes agreements for architectural services,
demolition, design services, development, engineering services, excavation, or
other improvement to real property, including buildings, shafts, wells and
structures, whether on, above or under real property.
E. As used in this section, "indemnify"
or "hold harmless" includes any requirement to name the indemnified
party as an additional insured in the indemnitor's insurance coverage for the
purpose of providing indemnification for any liability not otherwise allowed in
this section."
Section 2. Section 56-7-2 NMSA 1978 (being Laws 1971,
Chapter 205, Section 1, as amended) is amended to read:
"56-7-2. OIL, GAS OR WATER WELLS AND MINERAL
MINES--AGREEMENTS, COVENANTS AND PROMISES TO INDEMNIFY VOID.--
A. An agreement, covenant or promise, foreign or
domestic, contained in, collateral to or affecting an agreement pertaining to a
well for oil, gas or water, or mine for a mineral, within New Mexico, that
purports to indemnify the indemnitee against loss or liability for damages
arising from the circumstances specified in Paragraph (1), (2) or (3) of this
subsection is against public policy and is void:
(1) the sole or concurrent negligence of the
indemnitee or the agents or employees of the indemnitee;
(2) the sole or concurrent negligence of an
independent contractor who is directly responsible to the indemnitee; or
(3) an accident that occurs in operations carried
on at the direction or under the supervision of the indemnitee, an employee or
representative of the indemnitee or in accordance with methods and means
specified by the indemnitee or employees or representatives of the indemnitee.
B. As used in this section, "agreement
pertaining to a well for oil, gas or water, or mine for a mineral" means
an agreement:
(1) concerning any operations related to
drilling, deepening, reworking, repairing, improving, testing, treating,
perforating, acidizing, logging, conditioning, altering, plugging or otherwise
rendering services in connection with a well drilled for the purpose of
producing or disposing of oil, gas or other minerals or water;
(2) for rendering services in connection with a
mine shaft, drift or other structure intended for use in the exploration for or
production of a mineral; or
(3) to perform a portion of the work or services
described in Paragraph (1) or (2) of this subsection or an act collateral
thereto.
C. A provision in an insurance contract
indemnity agreement naming a person as an additional insured or a provision in
an insurance contract or any other contract requiring a waiver of rights of
subrogation or otherwise having the effect of imposing a duty of
indemnification on the primary insured party that would, if it were a direct or
collateral agreement described in Subsections A and B of this section, be void,
is against public policy and void.
D. Nothing in this section:
(1) deprives an owner of the surface estate of
the right to secure indemnity from a lessee, operator, contractor or other
person conducting operations for the exploration of minerals on the owner's
land; or
(2) affects the validity of a benefit conferred
by the Workers' Compensation Act."
Section 3. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.