June 09, 2009 – City of Albuquerque v. BPLW Architects & Engineers, Inc., No. 27,837

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	JUNE 9, 2009
NO. 27,837
CITY OF ALBUQUERQUE,
Defendant/Cross-Claimant/Appellee,
v.
BPLW ARCHITECTS & ENGINEERS, INC.,
Defendant/Cross-Defendant/Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District Judge
The Baker Law Firm
Jeffrey L. Baker
Renni Zifferblatt
Albuquerque, NM
for Appellee
Montgomery & Andrews, P.A.
Kevin M. Sexton
Albuquerque, NM
for Appellant

OPINION
FRY, Chief Judge.
{1} 	This case arises from a dispute over an indemnification clause in a contract
between the City of Albuquerque and BPLW Architects & Engineers, Inc. (BPLW)
for the design and construction of the rental car facility at the Albuquerque
International Airport. After a pedestrian was injured at the facility, the City requested
a defense from BPLW pursuant to the indemnification clause. 	BPLW denied the
request, and the City filed a claim against BPLW. The district court granted partial
summary judgment in the City’s favor, finding that BPLW was required to defend the
City in the lawsuit brought by the pedestrian because the claim arose from BPLW’s
design and construction of the facility. BPLW appeals. We affirm.
BACKGROUND
{2} 	In 1998, the City entered into an architectural services contract with BPLW for
the design of the rental car facility at the airport. 	While BPLW was initially
responsible only for the design of the facility, the contract provided that the City could
require BPLW to perform construction services if needed. Pursuant to this provision,
BPLW took full responsibility for the construction administration services for the
project and proceeded to oversee the construction of the facility it had designed. The
project was completed, and the City took possession in 2001. Two weeks after the

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facility opened, a pedestrian, John Pound, fell off a curb while exiting one of the car
rental buildings located at the facility. Pound suffered extensive injuries and filed suit
against the City, alleging that the curb from which he fell was excessively high and
that the City had “failed to properly construct the curb and adjacent pavement,” had
“failed to correct a hazardous condition, specifically the excessively high curb,” and
had “failed to inspect and/or maintain the curb and adjacent pavement where” he had
fallen. Pound later filed an amended complaint, reasserting his allegations against the
City and adding a number of additional defendants, including BPLW. In the amended
complaint, Pound alleged that BPLW had negligently designed the curb and had failed
to use reasonable care in the inspection and supervision of the construction of the
curb.
{3} 	As revealed by discovery later, the curb that Pound fell from was adjacent to
a handicap ramp and varied in height from about eleven inches, where the curb met
the top of the ramp, to less than one inch where the base of the ramp began.
According to BPLW, this curb was a “header curb” built in compliance with a
standard design specification for header curbs provided by the City. The portion of
curb where Pound fell was apparently located near the door to one of the rental car
buildings, about a foot high, and it was neither marked to indicate that there was a
sharp change in elevation nor blocked by any type of barrier to prevent a person from

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stepping off the curb. 	Pound alleged that it was the placing of this high curb in a
pedestrian pathway that caused him to fall.
{4} 	After receiving Pound’s complaint, the City requested that BPLW honor its
contractual obligation to defend and indemnify the City. BPLW refused. The City
then filed a cross-claim against BPLW, alleging that BPLW had a contractual duty to
defend and indemnify the City for any cause of action arising out of BPLW’s
performance of the contract. 	The City and BPLW later independently settled the
claims brought against them by Pound, leaving only the cross-claim between the City
and BPLW to be litigated.
{5} 	The City then filed a partial motion for summary judgment limited solely to the
issue of whether BPLW had a duty to defend. The district court granted the City’s
motion, finding that BPLW had a duty to defend, and awarded the City approximately
$90,000 in attorney fees for the expenses the City incurred defending the claims
Pound brought against it. The district court also certified its order as final under Rule
1-054(B) NMRA, finding that there was no just reason for delay. 	BPLW timely
appealed.
{6} 	On appeal, BPLW argues that it did not have a contractual duty to defend the
City because none of Pound’s allegations alleged that the City was vicariously liable
for BPLW’s negligence and because all of the allegations against the City were for the

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City’s direct negligence, not BPLW’s. BPLW also argues that it does not have a duty
to defend because the indemnity clause contained an exception that relieves BPLW
of its duty to defend the City if the cause of action arises out of the City’s negligence
in approving designs or providing design specifications. Because the City approved
all of the designs for the rental car facility and because the curb in question complied
with a City design specification, BPLW argues that the cause of action falls within this
exception to its duty to defend.
DISCUSSION
Standard of Review
{7} 	On appeal from the grant of summary judgment, we ordinarily review the whole
record 	in the light most favorable to the party opposing summary judgment to
determine if there is any evidence that places a genuine issue of material fact in
dispute. Rummel v. Lexington Ins. Co., 1997-NMSC-041, ¶ 15, 123 N.M. 752, 945
P.2d 970; see Gormley v. Coca Cola Enters., 2005-NMSC-003, ¶ 8, 137 N.M. 192,
109 P.3d 280. 	However, if no material issues of fact are in dispute and an appeal
presents only a question of law, we apply de novo review and are not required to view
the appeal in the light most favorable to the party opposing summary judgment.
Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199.
Neither party argues that there are any material facts in dispute, nor do we find any

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disputed facts in our review of the record. Instead, both parties argue that resolution
of this appeal depends solely on the legal question of when a contractual duty to
defend is triggered and on the interpretation of the indemnity clause between BPLW
and the City. 	Thus, we review the district court’s grant of summary judgment de
novo.
The Duty to Defend Arises From the Terms of the Contract and the Allegations
of the Complaint
{8} 	The City argues that in order to determine whether a duty to defend exists, we
should look at the terms of the contract and the allegations contained in the complaint.
According to the City, if the allegations in the complaint fall within the terms of the
contract, then the duty to defend is triggered. BPLW, on the other hand, argues that
a contractual duty to defend can only be triggered if vicarious liability is alleged in the
underlying complaint. While BPLW acknowledges that our case law suggests that the
City’s view is correct, it argues that the cases that set out this rule all involve
insurance contracts and thus that the rule is inapplicable to a duty to defend contained
in other types of contracts. 	See, e.g., Bernalillo County Deputy Sheriffs Ass’n v.
County of Bernalillo, 114 N.M. 695, 697, 845 P.2d 789, 791 (1992) (holding that an
insurer’s duty to defend arises from the allegations in the complaint against the
insured). 	We disagree with BPLW and, as we explain below, we hold that a
contractual duty to defend is triggered by the allegations in the complaint.

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{9} 	In disputes stemming from insurance contracts, the “duty to defend arises out
of the nature of the allegations in the complaint,” Miller v. Triad Adoption &
Counseling Servs., Inc., 2003-NMCA-055, ¶ 9, 133 N.M. 544, 65 P.3d 1099, and is
determined “by comparing the factual allegations in the complaint with the insurance
policy.” Lopez v. N.M. Pub. Sch. Ins. Auth., 117 N.M. 207, 209, 870 P.2d 745, 747
(1994). 	If a complaint “states facts that bring the case within the coverage of the
policy,” then the duty to defend will be triggered. Bernalillo County Deputy Sheriffs
Ass’n, 114 N.M. at 697, 845 P.2d at 791. 	However, “[i]f the allegations of the
complaint clearly fall outside the provisions of the policy, neither defense nor
indemnity is required.” Id.
{10} 	BPLW argues that these rules are inapplicable and “irrelevant to a non-
insurance scenario.” As its sole support for this argument, BPLW cites a number of
Florida cases that it interprets as holding that a contractual duty to defend is triggered
only when vicarious liability is alleged in a complaint. E.g., Metro. Dade County v.
CBM Indus. of Minn., Inc., 776 So. 2d 937, 939 (Fla. Dist. Ct. App. 2001) (finding
duty to defend where complaint stated a cause of action for vicarious liability); SEFC
Bldg. Corp. v. McCloskey Window Cleaning, Inc., 645 So. 2d 1116, 1117 (Fla. Dist.
Ct. App. 1994) (refusing to find duty to defend where complaint alleged only active
negligence of indemnitee); Metro. Dade County v. Fla. Aviation Fueling Co., 578 So.

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2d 296, 298 (Fla. Dist. Ct. App. 1991) (finding duty to defend where complaint
alleged vicarious liability). Contrary to BPLW’s argument, these cases did not hold
that a duty to defend can only be triggered if the allegations of a complaint allege
vicarious liability. Instead, these cases were decided on the ground that the indemnity
agreements in question expressly precluded indemnity for the indemnitee’s own
negligence. 	In CBM Industries, for example, the indemnity agreement expressly
stated that “nothing herein shall . . . require [CBM] to indemnify the [c]ounty against
liability resulting from the willful, negligent, or unlawful acts . . . of the [c]ounty.”
776 So. 2d at 938 (first alteration in original) (emphasis omitted) (internal quotation
marks omitted). Because the contract expressly excluded indemnification of claims
that the county was negligent, the only way the county could establish a contractual
duty to defend was through the vicarious liability claims asserted against it. Id.; see
SEFC Bldg. Corp., 645 So. 2d at 1117 (refusing to find duty to defend from the
indemnitee’s own negligence where an indemnity agreement did not expressly state
“such intent in clear, unequivocal terms”).
{11} 	BPLW does not make any further argument in support of its contention other
than the bare assertion that the rules comparing the complaint’s allegations with the
contract should not apply to anything other than insurance contracts. 	While we
recognize that the primary purpose of an insurance contract is to defend and indemnify

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an insured and that the primary purpose of the contract at issue in this case is for
construction services, not indemnity, we are not persuaded that we should create a
new rule for determining when a non-insurance contractual duty to defend arises. In
both types of contracts, the duty to defend is a contractual obligation that the parties
have bargained for as a part of their agreement. 	Because the duty to defend is a
contractual obligation, we hold that regardless of the type of contract containing it, the
duty to defend arises when the language of a complaint states a claim that falls within
the terms of the contract.
BPLW Has a Contractual Duty to Defend the City, Even for the City’s Own
Alleged Negligence, as Long as the City’s Negligence Arises From BPLW’s
Negligence
{12} 	We now consider whether Pound’s allegations against the City fall within the
scope of BPLW’s duty to defend. 	BPLW argues that all of Pound’s allegations
against the City were that the City, not BPLW, was negligent and that the indemnity
clause does not require BPLW to defend the City for the City’s own negligence.
BPLW further argues that requiring it to indemnify the City when the City is alleged
to be negligent would violate the public policy expressed in NMSA 1978, Section 56-
7-1 (1971) (amended 2003 and 2005), which makes void any indemnity agreement in
a construction contract that requires an indemnitor to indemnify an indemnitee for the
indemnitee’s own negligence. The City, on the other hand, argues that the indemnity

9
clause requires BPLW to defend the City for any cause of action that arises from the
negligent act, error, or omission of BPLW even if the complaint alleges that the City
itself was negligent.
{13} 	Neither party disputes that Pound’s allegations against the City were that the
City itself, not BPLW, was negligent. Thus, resolution of this appeal requires us to
interpret the contract between the parties and determine whether the indemnity clause
required BPLW to defend the City even if the City is alleged to have been negligent.
The parties do not contend that the contract was ambiguous, and, therefore, “the
interpretation of language in [the] contract is an issue of law which we review de
novo.” Krieger v. Wilson Corp., 2006-NMCA-034, ¶ 12, 139 N.M. 274, 131 P.3d 661
(filed 2005).
{14} 	In order to determine the applicability of an indemnity provision in a contract,
“[w]e apply the general rules of contract construction in determining the meaning of
the language used” by the parties. Id. ¶ 13. This requires us to construe the contract
“as a harmonious whole” and to give every word and phrase “meaning and
significance according to its importance in the context of the whole contract.” 	Id.
(internal quotation marks and citation omitted). The indemnity clause between the
City and BPLW provides that BPLW
agrees to defend, indemnify, and hold harmless the City . . . against all
suits . . . brought against the City because of any injury or damage

10
received or sustained by any person . . . arising out of or resulting from
any negligent act, error, or omission of [BPLW] . . . arising out of the
performance of this Agreement.
{15} 	Aside from the specific exceptions that we discuss below, there is no language
in the contract that limits BPLW’s duty to defend the City to complaints that do not
allege that the City was negligent. Instead, the plain language of this clause indicates
that the duty to defend applies to all suits against the City arising out of a negligent
act, error, or omission of BPLW arising out of the performance of the agreement.
Consequently, BPLW has a duty to defend the City, even if only the City is alleged
to be negligent, as long as the cause of action arises from the alleged negligent act,
error, or omission of BPLW.
{16} 	Although this provision does not explicitly state that BPLW must indemnify the
City for the City’s own negligence, our Supreme Court has held that a provision such
as this is to be broadly construed to provide indemnity for the indemnitee’s own
negligence if “the intention to save [the indemnitee] harmless . . . is clear and
unequivocal” in the contract. Metro. Paving Co. v. Gordon Herkenhoff & Assocs., 66
N.M. 41, 43, 341 P.2d 460, 461 (1959). Here, the contract provides that BPLW will
defend the City from all suits against the City that arise out of BPLW’s negligence in
the performance of the contract. The only limitation on this duty is that
[n]othing in the Agreement shall be construed to require [BPLW] to
(defend) indemnify and hold harmless the City . . . from and against

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liability . . . caused by or resulting from in whole or in part the
negligence, act or omission of the City . . . [1] arising out of the
preparation or approval of maps, drawings, opinions, reports, surveys,
change orders, designs or specifications by the City . . . or [2] the giving
or failure to give directions or instructions by the City . . . where such
giving or failure to give directions or instructions is the primary cause of
bodily injury to persons or damage to property.
Aside from these very specific and limited exceptions that relieve BPLW of its duty
to defend if the cause of action arises from the City’s negligent approval or
preparation of designs and specifications, the contract does not contain any other
limiting language excluding claims that the City was negligent. BPLW’s obligation
to defend the City from all suits therefore includes causes of action alleging that the
City itself was negligent, as long as the cause of action arises from BPLW’s
performance of the agreement. The gist of Pound’s complaint against all defendants
was that the design of the curb and surrounding area was dangerous; Pound also
alleged that BPLW designed the site.
{17} 	Indeed, the language used to delineate the specific exceptions to BPLW’s duty
to defend, which is quoted in the preceding paragraph, supports our interpretation of
the indemnity clause. This language—used to relieve BPLW of its duty to defend if
the cause of action arises from the City’s negligent approval or preparation of designs
and specifications—is derived almost verbatim from the 1971 version of Section 56-7-
1, the anti-indemnity statute in effect at the time the contract was drafted. Section 56-

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7-1 mandated that any indemnity agreement in a construction contract that requires
an indemnitor to indemnify an indemnitee for the indemnitee’s own negligence is
“against public policy. . . void and unenforceable” unless the agreement specifically
provides that the indemnity does “not extend to liability . . . arising out of . . . the
preparation or approval of maps, drawings, opinions, reports, surveys, change orders,
designs or specifications by the indemnitee, or the agents or employees of the
indemnitee.”
{18} 	Notably, the statute required the exclusionary language used by BPLW and the
City only if an indemnity agreement required an indemnitor to indemnify the
indemnitee for the indemnitee’s own negligence. See id. By using language that is
required only under such circumstances, it is clear that the parties specifically intended
BPLW to indemnify and defend the City when the City is alleged to be negligent as
long as the cause of action arises from BPLW’s design or construction of the facility.
If, as BPLW argues, the indemnity clause did not require BPLW to indemnify the City
for the City’s alleged negligence, then the exclusionary language would not have been
necessary. 	See Pub. Serv. Co. of N.M. v. Diamond D Constr. Co., 2001-NMCA-082,
¶¶ 19, 31, 131 N.M. 100, 33 P.3d 651 (noting that “[w]e will not read a particular
provision of a contract such that another provision is rendered meaningless”). Thus,
the clear intent of the contract is for BPLW to defend the City from any lawsuit

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alleging that the City itself was negligent, as long as the cause of action arises from
BPLW’s alleged negligence, unless the claim arises from the City’s negligent
approval or preparation of a design or specification.
{19} 	We also reject BPLW’s argument that requiring it to defend the City for the
City’s alleged negligence violates the public policy expressed in Section 56-7-1. A
2003 amendment to Section 56-7-1 eliminated the exclusionary language, which was
used in the contract’s indemnity clause, required by the 1971 version of the statute.
See § 56-7-1 (1971); 2003 N.M. Laws, ch. 309, § 1; 2003 N.M. Laws, ch. 421, § 1.
The statute now provides that
[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 . . . against liability . . .
only to the extent that the liability . . . [is] caused by, or arise[s] out of,
the acts or omissions of the indemnitor or its officers, employees or
agents[.]
Section 56-7-1(B)(1). Both the current version and the version in effect at the time
the contract was executed, however, have the same effect because both ensure that an
indemnitor only has to indemnify for causes of action that arise from the indemnitor’s
own negligent conduct. In addition, both versions of the statute are based on a public
policy promoting safety in construction projects by holding each party to the contract
accountable for injuries caused by its own negligence. See Tucker v. R.A. Hanson Co.,

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956 F.2d 215, 218 (10th Cir. 1992) (noting that “[t]he purpose of [Section 56-7-1] is
to protect construction workers and future occupants of a building by ensuring that all
those involved in its construction know that they will be held financially liable for
their negligence”); Guitard v. Gulf Oil Co., 100 N.M. 358, 362, 670 P.2d 969, 973
(Ct. App. 1983) (noting that the mining anti-indemnity statute, NMSA 1978, § 56-7-2
(1971) (amended 1999 and 2003), was intended to promote public safety by ensuring
that each party to a mining contract is held accountable for its own negligence and will
therefore have an incentive to operate in a safe manner).
{20} 	Here, requiring BPLW to fulfill its contractual obligation to defend the City
against any suit against the City arising out of BPLW’s alleged negligence in the
performance of the contract does not violate Section 56-7-1 or the policy behind it.
Instead, this interpretation of the contract is fully consistent with the requirements of
the statute. 	It promotes safety in the construction project because it ensures that
BPLW will be accountable for any harm caused by its performance of the agreement.
Pound’s Claims “Arise From” BPLW’s Design and Construction of the Facility
{21} 	We now consider whether Pound’s allegations fall within the scope of the
indemnity clause and arise from BPLW’s performance of the agreement. 	The
complaint stated a claim of negligence, alleging that the City owed and breached a
duty of reasonable care in the construction and maintenance of the curb by “fail[ing]

15
to properly construct the curb and adjacent pavement,” and stated a claim of premises
liability, alleging that the City failed to properly inspect and construct the area where
Pound fell. 	These claims state two distinct allegations: (1) the City negligently
constructed the curb and (2) the City negligently failed to maintain and make safe the
area where Pound fell. BPLW argues that it does not have a duty to defend because
Pound’s allegations are directed at the City’s direct negligence, not BPLW’s. While
we agree with BPLW that Pound alleged that the City was negligent, we disagree with
BPLW’s assertion that the suit did not arise from BPLW’s alleged negligence.
{22} 	The indemnity clause requires BPLW to defend the City from any action
“arising out of or resulting from any negligent act, error, or omission of [BPLW] . . .
arising out of the performance of” the contract. The phrase “arising out of” is given
a broad interpretation by our courts and is generally “understood to mean ‘originating
from,’ ‘having its origin in,’ ‘growing out of[,]’ or ‘flowing from.’” Krieger, 2006-
NMCA-034, ¶ 14. Using this definition of the phrase “arising out of,” BPLW has a
contractual duty to defend the City for all claims that originate from, have their origin
in, grow out of, or flow from the negligent performance of its contract with the City.
The undisputed facts indicate that BPLW was responsible for the design and
supervision of the construction of the curb. Thus, all of the allegations regarding the
design and construction of the curb clearly arise from BPLW’s allegedly negligent

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performance of the contract and therefore fall within the duty to defend.
{23} 	BPLW further argues that because some of the claims also allege that the City
breached its duty to maintain and make safe the premises, BPLW is relieved of its
obligation to defend. In support of this argument, BPLW cites Williams v. Central
Consolidated School District, 1998-NMCA-006, ¶ 16, 124 N.M. 488, 952 P.2d 978
(filed 1997), a case in which this Court held that “[e]ven if a building is designed by
an independent private architect, the state is responsible for its own duty of care in and
around the work of the architect as part of its ‘operation or maintenance’ of the
building.” In that case, a student had fallen through a negligently designed window
that, due to its location and the type of glass, created a dangerous condition for
students. 	Id. ¶¶ 3-4. 	BPLW misconstrues the case as relieving it from its duty to
defend the City. 	Williams dealt solely with whether the state could be sued for
negligent maintenance of a building when the unsafe condition was caused by an
architect’s design defects. Id. ¶ 16. Williams did not, however, address whether the
architect would have been required to indemnify the state had there been an indemnity
agreement like the one in the present case.
{24} 	Here, Pound alleged that the City negligently failed to inspect and maintain the
curb that Pound fell from. 	Contrary to BPLW’s argument, these claims, like the
claims that the curb was negligently constructed, “arise from” BPLW’s allegedly

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negligent performance of the contract. Pound alleged that the City failed to fix a curb
that was dangerously high. However, had BPLW designed and constructed the curb
in such a way as to avoid the dangerous condition, then there would not have been any
dangerous condition for the City to make safe. Thus, the claims that the City failed
to inspect and maintain the curb area “arise from” BPLW’s performance of the
contract because the claims have their origin in, grow out of, and flow from the
allegedly negligent design and construction of the curb by BPLW.
The Exclusionary Language of the Indemnity Clause Does Not Relieve BPLW of
Its Duty to Defend
{25} 	BPLW next argues that the exclusionary provisions of the indemnity clause
relieve it of its duty to defend because the curb was built and designed in accordance
with standard design specifications for header curbs provided by the City and because
the City approved the plans prior to the construction of the facility. The exclusionary
language of the indemnity clause relieves BPLW of its duty to defend the City from
liability “arising out of the preparation or approval of maps, drawings, . . . designs or
specifications by the City.”
{26} 	According to BPLW, the curb that Pound fell from was constructed and
designed in full compliance with the City’s DWG.2415, a design-specification sheet
that details how to construct various types of curbs used in city construction projects.
DWG.2415 contains drawings specifying the City’s requirements for the construction

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of seventeen different types of curbs and gutters and includes information on the
dimensions of the various curbs as well as the type of construction materials that must
be used to build the curbs. The specifications for the header curb, the type of curb at
issue, indicate that a header curb can be up to eighteen inches high and that there is
no requirement that any type of safety rail be placed above the curb.
{27} 	BPLW argues that because it relied on the City’s design specifications for the
header curb, it does not have a duty to defend the City under the exclusionary
language of the contract. According to BPLW, it was the City’s design specifications
that caused the curb to be unreasonably high, not any design defect in BPLW’s
construction and design of the curb. We disagree.
{28} 	In order for BPLW to be relieved of its duty to defend under the exclusionary
language of its contract with the City, the cause of action must arise from the City’s
preparation or approval of maps, drawings, designs, or specifications. The cause of
action in this case, however, does not arise from the design specifications for a header
curb. While BPLW may have been required to build all header curbs to comply with
the City specifications, there is no indication that BPLW was required to use a header
curb in the specific location where the curb was actually constructed. In the process
of designing the rental car facility, BPLW opted to install a header curb in the
particular location where Pound fell. 	According to the allegations in Pound’s

19
complaint, it was the placing of an excessively high curb in a pedestrian path that is
alleged to have caused the fall, not some defect in the design specifications for the
header curb.
{29} 	To the extent that Pound’s allegations even mention DWG.2415, Pound only
alleges that the City violated the design specifications when it constructed the curb,
not that there was some defect in the design specifications themselves. 	Because
BPLW, not the City, was responsible for the placement of the curb in a particularly
dangerous location, the alleged failure to comply with the specifications falls within
BPLW’s duty to defend the City, not the exclusionary language of the contract. Thus,
for purposes of determining whether BPLW had a duty to defend, Pound’s complaint
states a claim that arises from BPLW’s design and construction of the curb in
question, not from some defect in the City’s design specifications for header curbs
such that BPLW would be relieved of its duty to defend.
{30} 	BPLW next argues that it is relieved of its obligation to defend the City because
the City approved all of the plans BPLW had designed prior to the construction of the
facility. There are no allegations in the complaint that Pound’s injuries arose from the
City’s approval of BPLW’s design for the rental facility. Instead, all of the allegations
against the City relate to the design and construction of the facility. Because BPLW
designed and constructed the facility, these allegations all arise from BPLW’s

20
performance of the contract and are subject to BPLW’s general obligation to defend
the City.
Indemnification
{31} 	BPLW finally argues that the district court erred in denying its motion for
summary judgment in which BPLW sought a determination that it did not have a duty
to indemnify and reimburse the City for the settlement the City paid to Pound. The
district court’s grant of partial summary judgment, however, dealt solely with whether
BPLW had a duty to defend, not whether BPLW had a duty to indemnify. In addition,
“the duty to indemnify is distinct from [the] duty to defend,” and resolution of
whether a party has a duty to defend does not necessarily depend on there being a duty
to indemnify. Ins. Co. of N. Am. v. Wylie Corp., 105 N.M. 406, 409, 733 P.2d 854,
857 (1987). While we look to the allegations in the complaint and the terms of the
contract to determine whether a duty to defend has been triggered, whether BPLW
will also be required to indemnify the City requires the resolution of material facts by
the district court. 	Thus, the issue of BPLW’s duty to indemnify the City is not
properly before us, and we therefore do not address it.

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CONCLUSION
{32} 	For the foregoing reasons, we affirm the district court’s grant of partial
summary judgment in favor of the City of Albuquerque.
{33} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
RODERICK T. KENNEDY, Judge