Scholfield, J. (dissenting) — Being convinced that the enforcement of the indemnity provision involved in this case is contrary to the holding in Jones v. Strom Constr. Co., 84 Wn.2d 518, 527 P.2d 1115 (1974), Brame v. St. Regis Paper Co., 97 Wn.2d 748, 649 P.2d 836 (1982), and Gall Landau Young Constr. Co. v. Hurlen Constr. Co., 39 Wn. App. 420, 693 P.2d 207, review denied, 103 Wn.2d 1026 (1985), I respectfully dissent.
The principle applied in Jones, Brame, and Gall is that liability cannot be imposed pursuant to an indemnity agreement in the absence of a showing of an act or omission by the indemnitor arising out of its performance of the contract which causes or contributes to the loss to be indemnified.
The application of this rule of law to the facts of this case is demonstrated in the majority opinion at 810, acknowledging as follows:
In the instant case, the liability imposed under CERCLA was not caused or contributed to by any act or omission of NWES beyond the performance of its contractual duties.
The majority opinion at 812 then attempts to distinguish this case from Jones, Brame, and Gall on the basis that the parties intended
for NWES to assume responsibility for any risks related to the waste disposal that did not result either from Scott's negligence or its improper identification of materials.
In so concluding, the majority opinion relies upon language in the indemnity agreement signed by NWES, which is described as an exception to the otherwise broad indemnity language and reads as follows:
*816provided, however, that the loss or claim does not result from the misidentification or failure to properly identify the materials by [Scott Galvanizing] or the negligence of [Scott Galvanizing].
Majority opinion, at 810.
While the language referred to does somewhat narrow the broad, all-inclusive language of the indemnity agreement, it does not state that Scott Galvanizing would remain responsible only for liability caused by its own fault or negligence (majority opinion, at 810-11), nor does it impact the requirement, clearly expressed in Jones, Brame, and Gall, that there be evidence of an act or omission by the indemnitor causing or contributing to the loss.
The analytical error in the majority opinion, as I see it, is the conclusion that an intent to indemnify somehow takes the place of or satisfies the requirement of culpable conduct on the part of the indemnitor. That critical element of culpable conduct does not exist in this case.
That the requirement of culpable conduct cannot be replaced merely by finding an intent to indemnify is demonstrated by a review of Jones and Brame.
In Jones, the language of the indemnity agreement was as broad as it can get. It reads:
To indemnify and save harmless the Contractor from and against any and all suits, claims, actions, losses, costs, penalties, and damages, of whatsoever kind or nature, including attorney's fees, arising out of, in connection with, or incident to the Subcontractor's performance of this Subcontract.
Jones, at 521. In its analysis of the indemnity agreement before it, the Jones court makes this statement at pages 521-22:
It is, therefore, Belden's performance of the subcontract, and losses "arising" from, connected with, or incidental to that performance, which forms the keystone on which indemnity turns. Thus, it is clear that unless an overt act or omission on the part of Belden in its performance of the subcontract in some way caused or concurred in causing the loss involved, indemnification would not arise. Belden's mere presence on the jobsite inculpably performing its specified contractual obli*817gations, standing alone, would not constitute a cause or participating cause.
(Footnote omitted.)
In Brame, the indemnity clause at issue read as follows:
To indemnify and save harmless the Contractor [Baugh] from and against any and all suits, claims, actions, losses, costs, penalties, and damages, of whatsoever kind or nature, including attorney's fees, arising out of, in connection with, or incident to the Subcontractor's [General Mechanical's] performance of this Subcontract.
Brame, at 750-51.
In Jones, the sole cause of the accident was the indemnitee's performance or nonperformance of the contract. There was no act or omission on the part of Belden, the indemnitor, which contributed to the loss. In Brame, the court interpreted its ruling in Jones, stating at page 751 as follows:
The court held that the indemnity clause would operate only if there were an overt act or omission on the part of Belden in its performance of the contract which in some way caused or concurred in causing the loss involved. Jones v. Strom Constr. Co., 84 Wn.2d at 521-22. No such act or omission by Belden was established, and therefore the clause did not operate.
The Supreme Court referred to the holding in Jones again in the case of Redford v. Seattle, 94 Wn.2d 198, 205, 615 P.2d 1285 (1980), stating as follows:
Jones merely limited the scope of such indemnification agreements to those cases in which some activity of the employer contributed to the injury.
It is clear that the Brame court treated the holding in Jones as a limitation on the scope of indemnification agreements. That limitation required an act or omission on the part of the indemnitor which causes or contributes to the loss.
In both Jones and Brame, the court was construing indemnity agreements which were written in such broad, sweeping language that one could say they contained no limitations whatsoever. Undoubtedly having in mind the injustices that such broad, sweeping language could bring *818about, the Supreme Court limited the scope of such indemnification agreements by the requirement of culpable conduct.
This interpretation of Jones and Brame was followed in Gall, where this court stated at page 427:
In resisting the subcontractor's motion for summary judgment, the general contractor (indemnitee) failed to produce evidence that the loss was "caused by or contributed to by the negligence of the indemnitor". Brame, at 750. A similar issue was before the court in Jones v. Strom Constr. Co., 84 Wn.2d 518, 527 P.2d 1115 (1974). In Brame, the court described the effect of Jones as limiting the scope of such indemnification agreements to those cases in which some activity of the employer contributed to the injury.
The Supreme Court denied review of the Gall case on March 15, 1985.
The intent of the parties to enter into a very broad indemnity agreement was clearly present in both the Jones and Brame cases. The court in both cases required indemnitor culpability in spite of there being sufficiently broad language in the indemnity agreement itself for enforcing it without restriction. Broad indemnity language alone cannot be a substitute for the requirement of culpable conduct on the part of the indemnitor, as stated in Jones and Brame. Tb achieve the result sought by Scott Galvanizing, the indemnity agreement would have to show an intent to cover losses not contributed to by the indemnitor. The agreement in this case is not subject to that interpretation.
The enforcement of the indemnity agreement against NWES would impose upon NWES the same burden that the Jones and Brame cases intended to prevent — that is, the burden of being required to indemnify for losses which the indemnitor has not caused or contributed to in any way. The liability of Scott Galvanizing under CERCLA has not been contributed to by NWES. 42 U.S.C. § 9607(a)(2) and (3) appear to impose liability on Scott Galvanizing as a generator of a hazardous substance without any fault on the part of NWES.
*819The majority opinion goes directly against the limitation imposed on indemnity agreements by the Jones and Brame cases and would impose a liability on NWES which has the potential of exceeding the value of the entire transportation contract. The limitation placed upon such broad indemnity agreements is a wise one, has a salutary purpose, and it should be enforced.
For these reasons, I dissent.
Review granted at 119 Wn.2d 1002 (1992).