joined by COMPTON, Justice, dissenting.
In my view it is a fact question whether Adams’s claim was one, to use the language of clause (k), “arising out of, in connection with, or incident to [C.J.M.’s] performance of this subcontract.” This is a question of causation rather than fault and on the record before us it is one about which reasonable minds could differ.
The majority states that “there is no dispute that the Adams’ accident was caused either by C.J.M.’s negligence in not covering the holes or by Chandler’s negligence in failing to supervise or by enlarging the holes. If the indemnity clause (k) is broad enough to include both C.J.M.’s and Chandler’s negligence, there is no dispute about causation.” This reasoning is flawed. Clause (k) is broad enough to include some eases which are caused by Chandler’s negligence. It does not cover all cases which are caused by Chandler’s negligence, however, only those which arise out of, are connected with, or incident to C.J.M.’s performance of the subcontract.
The suggestion in the majority opinion that the result in Burgess Construction Co. v. State, 614 P.2d 1380 (Alaska 1980) controls the determination of cause is plainly wrong. The claimants in Burgess were personal representatives of employees of the contractor who were killed while working on the contract. There was thus no doubt that the claims were “on account of the operations of the said contractor.” 614 P.2d at 1381.
I would reverse the judgment of the superior court and remand this case for trial on the issue of causation.