indemnity clause in Arizona

2012Dube v. Likins, 216 Ariz. 406, 422, ¶¶ 4-5 , 167 P.3d 93, 109 (App.2007) (stating in supplemental opinion that discovery rule for accrual for statute of limitations is the same as that for notice of claim purposes).

2012Dube v. Likins, 216 Ariz. 406, 422, ¶¶ 4-5 , 167 P.3d 93, 109 (App.2007) (stating in supplemental opinion that discovery rule for accrual for statute of limitations is the same as that for notice of claim purposes).

2008Co., 175 Ariz. 148, 153 , 854 P.2d 1134, 1139 (1993) (“When interpreting a contract, nevertheless, it is fundamental that a court attempt to ‘ascertain and give effect to the intention of the parties at the time the contract was made if at all possible.’ ”) (quoting Polk v. Koerner, 111 Ariz. 493, 495 , 533 P.2d 660, 662 (1975)). ¶ 26 We further note that as to the indemnity clause in an insurance contract, this issue is settled.

2008Co., 175 Ariz. 148, 153 , 854 P.2d 1134, 1139 (1993) (“When interpreting a contract, nevertheless, it is fundamental that a court attempt to ‘ascertain and give effect to the intention of the parties at the time the contract was made if at all possible.’ ”) (quoting Polk v. Koerner, 111 Ariz. 493, 495 , 533 P.2d 660, 662 (1975)). ¶ 26 We further note that as to the indemnity clause in an insurance contract, this issue is settled.

2008P’ship v. Allen, 189 Ariz. 422, 426 , 943 P.2d 782, 786 (App. 1997) (“[O]ur courts have held, in contexts other than disputes between insurers and insureds, that covenants not to sue or not to execute are contracts, not releases.”) (emphasis added). ¶ 23 Thus, to the extent the District is claiming that a covenant not to execute is essentially a release and, as a matter of law, we must cap the potential liability under the indemnity clause at what was actually paid, we reject the argument.

2008P’ship v. Allen, 189 Ariz. 422, 426 , 943 P.2d 782, 786 (App. 1997) (“[O]ur courts have held, in contexts other than disputes between insurers and insureds, that covenants not to sue or not to execute are contracts, not releases.”) (emphasis added). ¶ 23 Thus, to the extent the District is claiming that a covenant not to execute is essentially a release and, as a matter of law, we must cap the potential liability under the indemnity clause at what was actually paid, we reject the argument.

2008Section 57(1) provides generally that when “a liability” is covered under the terms of an indemnity agreement, the indemnitor may be bound by a judgment, after notice and an opportunity to defend if “the indemnitee defended the action with due diligence and reasonable prudence.” In a case with some similarities to the one at hand, Cunningham v. Goettl Air Conditioning, Inc., the Arizona Supreme Court applied these principles and expressly recognized § 57(1). 194 Ariz. 236, 240, ¶ 19 , 980 P.2d 489, 493 (1999). ¶ 13 In Cunningham, there was an indemnity clause in a lease agreement.

2008Section 57(1) provides generally that when “a liability” is covered under the terms of an indemnity agreement, the indemnitor may be bound by a judgment, after notice and an opportunity to defend if “the indemnitee defended the action with due diligence and reasonable prudence.” In a case with some similarities to the one at hand, Cunningham v. Goettl Air Conditioning, Inc., the Arizona Supreme Court applied these principles and expressly recognized § 57(1). 194 Ariz. 236, 240, ¶ 19 , 980 P.2d 489, 493 (1999). ¶ 13 In Cunningham, there was an indemnity clause in a lease agreement.

2008Co., 175 Ariz. 148, 153 , 854 P.2d 1134, 1139 (1993) (“When interpreting a contract, nevertheless, it is fundamental that a court attempt to ‘ascertain and give effect to the intention of the parties at the time the contract was made if at all possible.’ ”) (quoting Polk v. Koerner, 111 Ariz. 493, 495 , 533 P.2d 660, 662 (1975)). ¶ 26 We further note that as to the indemnity clause in an insurance contract, this issue is settled.

2008Co., 175 Ariz. 148, 153 , 854 P.2d 1134, 1139 (1993) (“When interpreting a contract, nevertheless, it is fundamental that a court attempt to ‘ascertain and give effect to the intention of the parties at the time the contract was made if at all possible.’ ”) (quoting Polk v. Koerner, 111 Ariz. 493, 495 , 533 P.2d 660, 662 (1975)). ¶ 26 We further note that as to the indemnity clause in an insurance contract, this issue is settled.

2006First, it relies on the portion of the clause that entitles it to be indemnified for “any ... claim ... whatsoever brought by any third person whomsoever ... in connection with the Property or the performance by [Grubb & Ellis] of any and all of its obligations under this Agreement [.]” (Emphasis added.) Second, it contends that because the only exception *88 from this indemnity obligation is made for Grubb & Ellis’s “gross negligence or -wilful misconduct,” the parties “obviously intended that all other types of negligence would be covered.” ¶ 17 “The extent of a contractual duty to indemnify

2006First, it relies on the portion of the clause that entitles it to be indemnified for “any ... claim ... whatsoever brought by any third person whomsoever ... in connection with the Property or the performance by [Grubb & Ellis] of any and all of its obligations under this Agreement [.]” (Emphasis added.) Second, it contends that because the only exception *88 from this indemnity obligation is made for Grubb & Ellis’s “gross negligence or -wilful misconduct,” the parties “obviously intended that all other types of negligence would be covered.” ¶ 17 “The extent of a contractual duty to indemnify

2000See Orme Sch. v. Reeves, 166 Ariz. 301, 305, 309 , 802 P.2d 1000, 1004, 1008 (1990) (court may grant summary judgment only if, when viewing evidence in light most favorable to non-mov-ant, reasonable jury could not find for party).

2000See Orme Sch. v. Reeves, 166 Ariz. 301, 305, 309 , 802 P.2d 1000, 1004, 1008 (1990) (court may grant summary judgment only if, when viewing evidence in light most favorable to non-mov-ant, reasonable jury could not find for party).

1994See Corella v. Superior Court, 144 Ariz. 418 , 698 P.2d 213 (App.1985) (regulation purporting to give state health plan a lien on liability coverage of no effect where statute did not authorize creation of lien). 3.

1994See Corella v. Superior Court, 144 Ariz. 418 , 698 P.2d 213 (App.1985) (regulation purporting to give state health plan a lien on liability coverage of no effect where statute did not authorize creation of lien). 3.

1990The statute by its own terms does not include attorney’s fees and costs incurred by a seller in pursuing an indemnity claim against a manufacturer. “[A] court will not inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions.” City of Phoenix v. Donofrio, 99 Ariz. 130, 133 , 407 P.2d 91, 93 (1965).

1990The statute by its own terms does not include attorney’s fees and costs incurred by a seller in pursuing an indemnity claim against a manufacturer. “[A] court will not inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions.” City of Phoenix v. Donofrio, 99 Ariz. 130, 133 , 407 P.2d 91, 93 (1965).