joined by RABINO WITZ, Justice, dissenting.
In my view the trial court erred in granting Earthmovers’ cross-motion for summary judgment against Koehring for indemnity. This motion was granted because Koehring had not pled as an affirmative defense that Earthmovers was negligent with respect to the crane. Koehring had, however, moved for summary judgment on the indemnity claim on the basis of Earthmovers’ negligence. Koehring stated in its memorandum in support of motion for partial summary judgment, filed April 4, 1986:
The policy underlying the rule that concurrently negligent tortfeasors may not assert claims for implied indemnity is applicable to the circumstances of the present case regardless of the theory underlying Earthmovers' liability to plaintiffs.... In this case, Earthmovers is not an innocent conduit. Without a contract, indemnity is only appropriate where there is no personal fault, concurrent wrongdoing or responsibility on the part of the party seeking indemnity. Earthmovers placed the accident crane on the market with full knowledge that *510there was no anti-two-block device attached to it. Earthmovers could have attached such a device to the crane, but it chose not to do so.... In the present case, if the jury finds that Earthmovers’ acts caused plaintiffs injuries, regardless of whether the underlying theory of liability is negligence or strict liability, Earthmovers should not be entitled to recover indemnity from Koehring. It would be unjust to hold that a party that causes injury may be completely relieved of liability through implied indemnity simply because plaintiffs cause of action was for strict liability, rather than negligence.
(Citation omitted).
Similarly, Koehring, in its trial brief, filed after the plaintiffs had limited their claims against Koehring and Earthmovers to strict liability claims, nonetheless identified as a primary issue in the case the “intervening/superseding negligence ... of Earthmovers.”
Further, Koehring, in its Reply to Earthmovers’ Memorandum Opposing Koehring’s Motion for Partial Summary Judgment and Opposition to Earthmovers’ Cross-motion for Summary Judgment, continued to argue that Earthmovers’ fault barred its claim for indemnity. Koehring stated in part in this memo, filed the same day as its trial brief:
Earthmovers was aware of the potential dangers presented by two blocking. Indeed, Earthmovers’ personnel were aware of a two-blocking accident involving another Earthmovers’ employee that occurred two years prior to the accident involved in this case. Earthmovers purchased a used crane for its own use and for commercial leasing. It rented it out and took it back in. It maintained the crane. This case simply does not concern an intermediary who is totally innocent in passing a product on to the consumer without knowledge of the alleged defect.
(Citation omitted). Koehring took pains to distinguish cases cited by Earthmovers involving faultless retailers who were able to obtain indemnity from manufacturers from the present case because Earthmovers was at fault:
Heritage [v. Pioneer Brokerage & Sales, Inc., 604 P.2d 1059 (Alaska 1979)] does not stand for the proposition that a lessor of a product may obtain indemnity against the manufacturer of the product when the lessor (1) thoroughly inspects the product prior to rental, (2) is aware of an allegedly defective condition in the product prior to rental, (3) has the opportunity and legal responsibility to correct the alleged defect prior to rental, and (4) is held strictly liable to plaintiffs whose injuries are caused by the alleged defect. ...
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In the present case, Earthmovers knew about the potential dangers presented by two-blocking. It knew that the accident crane lacked an operational anti-two-block device well in advance of its rental of the crane to the City of Nenana. The facts of the present case are not like those of Sequoia [Manufacturing Co. v. Halec Constr. Co., 117 Ariz. 11, 570 P.2d 782 (App.1977)].
Koehring in this memorandum also refers to Earthmovers’ opposition to Koehr-ing’s motion for summary judgment. Koehring states:
A significant portion of Earthmovers’ Opposition is devoted to challenging the negligence issue raised in Koehring’s Motion for Summary Judgment. Because Earthmovers’ discussion on that point has been rendered moot by plaintiffs’ decision to drop their negligence claims, and because Koehring’s Motion for Summary Judgment is based primarily on Earthmovers’ potential strict liability as a commercial lessor, that discussion does not merit a response....
While this is a paradoxical statement, it is made only with reference to Koehring’s motion for summary judgment, not to Earthmovers’. Further, regardless of the meaning of the mootness statement, it is not possible to read the memorandum as a whole as demonstrating an intention to relinquish the defense that Earthmovers is *511not entitled to indemnity because of its fault with respect to the crane.
Although the defense of Earthmovers’ negligence should have been raised as an affirmative defense under Civil Rule 8(c) in Koehring’s answer, it was permissible to present it in a motion for summary judgment. A leading commentator states, concerning the parallel federal rule:
While some cases hold that an affirmative defense not raised in the answer is waived and, therefore, not available as a basis for a summary judgment motion, other holdings provide that, absent prejudice to plaintiff, an affirmative defense may be raised by a motion for summary judgment regardless of whether it was pleaded in the answer or not. The latter position is more in keeping with the general purpose of the federal rules to avoid decisions based on pleading technicalities rather than the merits of a case.
2A J. Moore & J. Lucas, Moore’s Federal Practice 118.28, at 8-207-208 (2d. ed. 1986).
Once the negligence defense was raised by the motion for summary judgment it seems to me that the court should have deemed Koehring’s answer amended to conform to the motion.1 There was no surprise nor lack of opportunity to meet the issue, as Earthmovers knew from the outset that it had to defend against a claim that it had been negligent.
In all other respects I agree with the majority opinion.
. See Sears, Sucsy and Co. v. Insurance Company of North America, 396 F.Supp. 820, 823, n. 5 (N.D.Ill.1975) ("Release and accord and satisfaction is an affirmative defense that must be pleaded. In the circumstances of this case, however, since no prejudice resulted to the plaintiff by the failure to so plead, the court will deem the pleadings to be amended to conform to the materials submitted.” (citation omitted)); Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984); McKinley v. Bendix Corp., 420 F.Supp. 1001, 1002 (W.D.Mo.1976).