This act [41-3-1 to 41-3-8 NMSA 1978] does not impair any right of indemnity under existing law.

History: 1941 Comp., § 21-123, enacted by Laws 1947, ch. 121, § 6; 1953 Comp., § 24-1-16.

Cross references. — For indemnity agreements, when void, see 56-7-1, 56-7-2 NMSA 1978.

Indemnity not abrogated. — The right to indemnity at common law in New Mexico was not abrogated by the enactment of this act. Thomas v. Malco Refineries, Inc., 214 F.2d 884 (10th Cir. 1954).

Indemnity between primary and secondary wrongdoers. — New Mexico recognizes a common-law right of indemnity in favor of a tortfeasor who has been guilty of only passive or secondary negligence against another who has been guilty of active or primary negligence. Morris v. Uhl & Lopez Eng'rs, Inc., 442 F.2d 1247 (10th Cir. 1971).

A secondary or passive wrongdoer who has paid damages to an injured party has a common-law right of indemnity against the primary or active wrongdoer. United States v. Reilly, 385 F.2d 225 (10th Cir. 1967).

Indemnity when tortfeasors in pari delicto. — One tortfeasor may not recover indemnity from another when they are in pari delicto. Morris v. Uhl & Lopez Eng'rs, Inc., 442 F.2d 1247 (10th Cir. 1971); Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

If joint tortfeasors are not in pari delicto, or in equal fault, the secondary or passive wrongdoer may put the ultimate loss upon the one principally responsible for the injury. United States v. Reilly, 385 F.2d 225 (10th Cir. 1967).

Indemnity and contribution contrasted. — The difference between indemnity and contribution in cases between persons liable for an injury to another is that, with indemnity, the right to recover springs from a contract, express or implied, and enforces a duty on the primary wrongdoer to respond for all damages; with contribution, an obligation is imposed by law upon one joint tortfeasor to contribute that tortfeasor's share to the discharge of the common liability. Rio Grande Gas Co. v. Stahmann Farms, Inc., 1969-NMSC-089, 80 N.M. 432, 457 P.2d 364; Dessauer v. Memorial Gen. Hosp., 1981-NMCA-051, 96 N.M. 92, 628 P.2d 337.

Indemnity springs from a contract, express or implied, and enforces a duty on the primary or principal wrongdoer to respond for all the damages. Contribution does not arise out of contract, but is an obligation imposed by law, and rests on the principle that, when the parties stand in aequali jure, the law requires equality, which is equity, and that all should contribute equally to the discharge of the common liability. Thomas v. Malco Refineries, Inc., 214 F.2d 884 (10th Cir. 1954).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 18 Am. Jur. 2d Contribution §§ 35, 36, 81, 95, 115, 119.

Right of indemnitor of one joint tortfeasor to contribution by or indemnity against other joint tortfeasor or indemnitor of latter, 75 A.L.R. 1486, 171 A.L.R. 271.

Contribution or indemnity between joint tortfeasors on basis of relative fault, 53 A.L.R.3d 184.

When statute of limitations commences to run against claim for contribution or indemnity based on tort, 57 A.L.R.3d 867.

Product liability: seller's right to indemnity from manufacturer, 79 A.L.R.4th 278.