(concurring in part; dissenting in part) — I concur with the majority’s disposition of attorneys’ fees. I dissent from the interpretation and disposition of the indemnity contract.
First, Belden asserted it was not bound by the contract of indemnity because the agreement ran counter to RCW 4.24.115. The trial court rejected that contention, declaring *524that RCW 4.24.115 was unconstitutional. Thus, it held, Belden was not relieved of liability under the terms of the agreement. Based thereon, the trial court granted Strom’s motion for directed verdict against Belden. The majority has summarily brushed this aside with the offhand comment that the issue was not squarely before the court. I disagree.
The trial court’s refusal to apply RCW 4.24.115 is bottomed on a specific holding that the statute is unconstitutional, thus, denying Belden its claimed statutory protection. Belden has not assigned error to, argued, or otherwise challenged the ruling. That being the case, we should not consider the unchallenged ruling further. ROA 1-43; Hockley v. Hargitt, 82 Wn.2d 337, 345, 510 P.2d 1123 (1973); In re Cassel, 63 Wn.2d 751, 755, 388 P.2d 952 (1964); see also Van Geest v. Willard, 27 Wn.2d 753, 769, 180 P.2d 78 (1947). While there is no need for this court to rule on the statute’s constitutionality, the trial court’s unchallenged holding is determinative of the issue for the purpose of this case (i.e., it is the law of the case). Thus, Belden’s assertion that the indemnity clause violated RCW 4.24.115 is completely undercut, leaving nothing further to consider on the subject of that assigned error.
Second, as the majority points out, the indemnity clause in the contract requires the subcontractor, Belden, to indemnify the contractor, Strom,
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.
It is the majority’s view that the indemnitor’s action must “cause” or be a “participating cause” of the loss involved. I disagree. Neither the words nor the idea is embodied in the contract.
Further, the majority adds that Belden’s mere presence on the jobsite, inculpably performing its specified contrac*525tual obligation, was not a “cause” or “participating cause.” Again, I disagree. Belden concedes that its employees’ presence on the construction site was a cause in fact of the accident. Yet, it, like the majority, asserts such presence was not the “proximate cause” of the accident. Clearly, this is beside the point. The question of “proximate cause” is not before us. That question arises only between Jones, the injured employee, and Strom. Insofar as the indemnity agreement is concerned, the only issue is whether the accident arose out of, had some connection with, or was incident to Belden’s performance of the subcontract. The majority confuses the “proximate cause” of tort law with “causation-in-fact” required by the contract.
In Tucci & Sons, Inc. v. Carl T. Madsen, Inc., 1 Wn. App. 1035, 467 P.2d 386 (1970), overruled by the majority, the Court of Appeals interpreted an identical provision under similar facts and held the subcontractor bound to indemnify the contractor for losses sustained by the latter even though the loss had been occasioned solely by the negligence of the contractor. As the Court of Appeals stated, at page 1038:
As we view this indemnity clause, it would be most difficult to assemble words which describe a more comprehensive and all-inclusive intent by the indemnitor to indemnify the indemnitee for all losses suffered by the indemnitee, “of whatsoever kind or nature,” so long as they had some connection with the indemnitor’s performance of the subcontract.
The majority would require “an overt act or omission on the part of Belden in its performance of the subcontract” which caused or concurred in causing the loss involved. Yet, the provision requires only a loss “arising out of, in connection with, or incident to the Subcontractor’s performance of this Subcontract.”
Since Belden agrees that its employee’s presence on the construction site was a cause-in-fact of the accident, it does violence to the clear contractual intent of the parties to *526read into the indemnity provision a “proximate cause” requirement.
Without question, the parties did not contract for a lawsuit to determine the question of negligence. Rather, they utilized an indemnity agreement, the terms and effect of which were well known to the area contractors, as a means of assigning the risk of third-party liability claims. This is not unique. In construing an indemnification agreement which contained the requirement that the loss occur “in connection with” the subcontractor’s performance of his subcontract, the Fifth Circuit Court of Appeals said in Alamo Lumber Co. v. Warren Petroleum Corp., 316 F.2d 287, 290 (5th Cir. 1963):
Here, however, Alamo had contracted to install cabinets, and when the two men were overcome by gas they were admittedly installing the cabinets near the uncapped pipe. Since the only requirement for indemnity is that the employee’s injury have some connection with Alamo’s work, Warren is entitled to recovery over against Alamo.
Words used in a contract must be given their usual and ordinary meaning. Honeywell, Inc. v. Babcock, 68 Wn.2d 239, 412 P.2d 511 (1966). By so considering the words here involved, it is clear that Belden contracted to indemnify Strom under the circumstances at hand.
I would affirm that portion of the trial court’s judgment dealing with the indemnification agreement.
Finley and Rosellini, JJ., concur with Stafford, J.