*1 compen- not that it would territory, utor’s it GROTHE, in the event does such
sate distributor d/b/a Northern Lenhart servicing. Equipment Exploration & Co., Appellant, stake in the
Pettibone has an enormous good will reputation products its Distributors, other of its customers. OLAFSON, Appellee. T. Theodore hand, variety may prod- wide represent the de- variety suppliers; ucts from a 5766. No. territory re- mands of the limited of Alaska. Supreme Court may sources of combine the distributor inadequate service. incomplete result 18, Feb. agreement In the of an express absence manifestly it would be unrea- contrary, intended suppose sonable Pettibone give up right direct service its hold, accordingly,
to its customers. We acting was not in violation Pettibone
of its when it machines contract serviced law-
sold the customers involved
suit, result, Craig as a Taylor, and that claim ser- prevail
not entitled to on its fees. trial court on
vice The decision of the
the issue of fees is reversed. Since service fact, are
there no triable issues of order entered summary judgment in favor
of Pettibone on the issue of service fees.
Ill trial argues
Pettibone attorney’s and fees
denial costs amount-
ed to an abuse of discretion under Civil 82(a).
Rule
Because the trial court we have reversed issue,
as to the service fees we reverse and fees. attorney’s
remand the issue of part, REVERSED in
AFFIRMED
part.
CONNOR, J., participating. *2 Waggoner,
Paul Paul W. Waggoner, W. appellant. Anchorage, for Markham, Kodiak, appel- Gerald W. for lee. C.J., RABINOWITZ, BURKE,
Before COMPTON, JJ. MATTHEWS OPINION RABINOWITZ, Justice. damages an action for
This case involves re- Theodore Olafson personal injuries for blast- engaged ceived while The superior Grothe. ing work for Lenhart Olafson, judgment rendered a working afternoon before the accident Olaf- finding: 1) that Olafson was Grothe; 2) operating son was the machine when employee of chain, failing repair Olafson with drive chain To it negligent in broke. mast, remove, equipment; 3) necessary repair to lower the working safe conditions and chain, proximate and reinstall the and then raise negligence that Grothe’s Olafson; mast, and lower the *3 injuries cause of the to that- mast. order raise must connecting pins raise the defense one of the be removed Grothe was not entitled to the comparative negligence; repaired and then reinserted. Olafson of $56,133 evening to chain and returned the next damages. Olafson was entitled to reconnect the mast and resume appeals. morning Grothe drilling. Grothe, Explora- Lenhart d/b/a Northern Co., at- mining injured was while he was engineer tion & is a Olafson Equipment, so operates tempting align who a tin near Nome and to the holes that he could mine the connecting pin. Normally, the develops subdivisions in Kodiak. Theodore reinsert using holes positioned by hydrau- Olafson a retired of the laborer’s can be the is member system lic testi- years union who worked for over 40 as a to raise the mast. Olafson fied hydraulic system driller and blaster of rock.1 In the on the drill its developing parcel was a 32-acre land in was too weak to raise the mast from instead, attempted, large position. Kodiak which contained a rock forma- horizontal He pro- driving tion. wanted to the mast the drill for- by to level rock raise montory that he install its tracks while the bottom of the so sewer ward on against water lines as well build on levelled mast was braced a rock bank. Evi- gravel land. The rock and was pro- dently, attempting while Olafson pin, duced insert lever control- hydraulic would be available construc- ling position tion roads in the subdivision and for sale of the hammer vibrated open, causing to other the hammer to rise on the contractors.2 un- mast. This caused the mast become June of early Grothe hired Olaf- backwards, striking it flipped balanced and rock, son to drill and blast and Olafson right on the side.3 Olafson was Olafson began working. drilling The immediately hospital for taken to the treated large work involved the use aof tractor- rib fractures. He remained in multiple treaded is hydraulic drill which used hospital for four days. part drive into The steel rods the rock. injury, initially the drill which drives steel is filed a called After “hammer” Compensation which is mounted on the “mast” claim with the Worker’s learning and moves After that Grothe had no up down on chain. Board. insurance, mast is compensation attached to the “boom” which con- worker’s body nects to main to maintain a tort action for dam- of the tractor. elected by belonged ages compensation machine used rather than a worker’s to Grothe. claim.4 Although 1. At the time of the Olafson was 74 this account of accident accident parties years speculative, Although he he was somewhat both seem old. claimed retired accepted 1977, receiving this of the accident. have version from the union in his union pension security, and social Olafson continued part: provides in 4. AS 23.30.055 employment occasionally got jobs seek employer payment to secure fails [I]f as a driller and blaster. The trial court found required chapter, this except for the accident Olafson could have legal representative injured working years. continued for five more may injury in case death results from chap- compensation under this elect to claim ter, 4,000
2. Grothe testified he
from
wanted
against
the em-
or to maintain an action
8,000
yards
produced.
cubic
of rock
admiralty
damages
ployer
at law in
injury
or death....
account
trial,
At the conclusion
a non-jury
test we turned to the analysis
advocated
judgment
rendered a
fa-
Professor Larson.8
vor, but ruled that
would be
Terming
approach
the “relative na-
reduced to
comparative
reflect his own
neg-
test,
ture of the work”
Larson would
ligence. Olafson then filed a motion for
have the trier of fact
‘employ-
determine
amendment
to findings and conclusions of
ee’
through
status
consideration of the
law.5 He asked
court to recon-
character of the claimant’s work or busi-
ruling
sider its
regarding the defense of
ness, and the relationship of the claim-
comparative negligence in
light
Carroll v.
ant’s work
purported
or business to the
Irrigation,
Universal
18 Wash.App.
employer’s business.
854, 573 P.2d
(Wash.App.1977).6
Id. at 969. In
Ostrem Alaska Workmen’s
granted
Olafson’s motion and
Board,
Compensation
607 C.F.R. 56.14-25 mining directs that “ma- change the position of the connecting chinery equipment should be main- pins. Two witnesses testified hy- properly.” tained Thirty C.F.R. 56.14r-26 draulics on the machine used states that equipment “unsafe machinery Olafson were weak and would sometimes be shall be removed from service immediate- unable to lift the boom. Olafson testified ly.” Finally, 30 C.F.R. provides: 56.18-20 that he had previously warned Grothe that hydraulic system was not
Mandatory. working prop- No employee shall be as- erly and that signed, allowed, promised Grothe had or be to have required per- it repaired. form Olafson stated that if any hy- work alone in area where haz- draulics had been working ardous properly, conditions exist that he would endan- would have been ger his able to use safety unless he can the normal communicate method others, with and thus would not heard, can be have been in- or can be seen. jured. Grothe claimed that hydraulics court did not specifically state strong were enough to raise the boom and that it found Grothe to negligent per se that he had been able to change position for violation of regulations. these Since the of the pins using the normal method. He court phrased its conclusions of negligence testified that after the accident the ma- in the language regulations, however, chine had been used in other jobs and that it seems the court did adopt the there had been no problems with the hy- regulatory provisions as applicable stan- hand, draulics. On the other Grothe admit- dard of care in this case. ted that Olafson had told him about a prob- Assuming that Grothe’s excavation lem with the hydraulics and that Grothe subject to the federal regulations and had thought that the weakness was due to applying the Baxter, criteria of Ferrell v. an air leak in the motor. Grothe stated P.2d 1971), Bailey that he had tried repair system but Lenord, (Alaska 1981), P.2d that his repairs did not seem to have made we conclude that court could very much difference. Grothe also admit- properly adopt (unsafe 30 C.F.R. 56.14-26 ted that the drive chain on the drill had not equipment removed) shall be and 30 C.F.R. broken during subsequent Thus, jobs. *6 56.18-20 (employee shall not be left alone in problem Olafson had faced may simply not conditions) hazardous work as codified stan have arisen on these later jobs. dards of due care.12 We think there was sufficient evidence in the record to the support superior court’s B. Did Grothe Breach Any Duty of Care finding that the hydraulic system drill’s was Owed To Olafson? defective and that Grothe had notice of this Unsafe Equipment problem. failure to repair the drill The superior court (or found that the adequately provide replacement) to a provided drill by Grothe had a defectively constituted a breach of his common law and weak hydraulic system prevented which the statutory duty provide Olafson with safe operator using from the procedure normal equipment.13 adopt statutory In order to a standard of 13. The court also found a breach in plain- provide care the court must find that the Grothe’s failure to Olafson with ade- protected by tiff quate is within the class the statute assistance. There is sufficient evidence harm/injury and the presence which occurred was the in the record to establish that the type protect which probably prevented the statute was intended to an assistant would have against. Baxter, Ferrell v. 484 P.2d 263 the accident since an assistant would have ob- (Alaska 1971); (Second) Restatement of Torts served the movement of the hammer and would (1965). must court also find that the have been able to warn Olafson before the mast statute/regulation prescribes specific conduct became unbalanced. Since Olafson was an em- merely general duty ployee, rather than a or abstract we conclude that there was sufficient Lenord, Bailey support care. evidence in the record to (Alaska 1981). negligently court’s conclusion that Grothe adequate failed to assistance. a plead not defense employer “may foreseea- the harm
C. Was
to the contribu-
injury
...
was due
ble?
Further,
employee.”
of the
negligence
tory
proximate
the chain of
Grothe claims that
employer
states that
if
23.30.080
AS
1)
was
because:
he
causation was broken
insurance,
employer
failed
machinery;
in the
any
not aware of
defect
injury
liability
personal
“may
escape
the chain had
2) he
not aware that
was
when the
employee
an
...
sustained
not have known Olafson
broken so he could
arises out of and in
sustained
injury
assistance;
method
needed
because
employment
of the
usual course
forward
(driving the drill
inserting
pin
negligent
was
(3)
employee
...
rock) was
against the
with the mast braced
contrast,
provides
23.25.020
In
AS
argu-
all of these
unforeseeable. We find
employee against
brought by
action
an
merit,
therefore affirm
ments devoid of
“the fact that
employer,
ruling that Olafson’s
negli-
guilty
contributory
may have been
result of the
injuries
a foreseeable
were
bar a
where
gence does not
lack of assistance
defect in the drill and the
slight
contributory negligence
given to Olafson.14
gross
employer
negligence
shall be di-
damages
Err In Rul-
but the
Superior
comparison,
III. Did The
Court
to the
Compara-
jury
proportion
ing
That The Defense
minished
to the
Was Not Availa-
attributable
Negligence
negligence
tive
amount of
employee.”
ble?15
decision,
final
the trial
In its
on Carroll v. Uni-
heavily
relies
23.-
ruled that under
23.30.055
AS
AS
Inc., Wash.App.
Irrigation,
versal
30.080,
to assert the
Grothe was not entitled
(Wash.App.1977),
609 pensation system. Id. at 376.16 The court parative negligence was inapplicable in the specifically rejected the argu- defendant’s context of this litigation.17 ment preserved AS 23.25.020 the de- IV. Was The Court’s Finding That Olaf- fense of comparative negligence for the em- son Was Disabled By Injury Erro- ployer. Id. at 377 n. 4. 18 neous? We think the Carroll decision is correct superior note with approval the concluded that following state- ment from that decision: Olafson was disabled due to the recurrent pain with injured
A
associated
showing
ribs. Dr.
comparative negligence
of
Loren
diminish
Halter’s
plaintiff’s
testimony supports
award would allow
this det
the employer to escape liability
por-
However,
for a
ermination.19
other physicians
plaintiff’s
tion of
injuries. This would be
testified that Olafson was not disabled or
inconsistent with the above noted policy
that his inability to work
by
was caused
purpose
of the
compensa-
workmen’s
pre-existing bronchial condition or his obesi
tion laws.
ty. Under
Rule 52(a),
Civil
the superior
Thus,
Id. at 377.
superior
findings
we hold that
court’s
shall not be set aside unless
court did not err in its conclusion that com-
clearly
record,
erroneous.20 On this
we are
Inc.,
Irrigation,
16. Carroll v. Universal
argues
that the
court made
Wash.App.
(Wash.App.1977).
573 P.2d
no
ty.
as to the
of
cause Olafson’s disabili-
given
conflicting
He claims that
testi-
mony
experts
unpersuaded by
specific finding
argu-
17. We
of the medical
are
the several
disability
on the
ap-
ments
plication
should have been
that Grothe advances
made. The
of
parties’ arguments
alleged
comparative negligence.
on Olafson’s
disabil-
We deem
ity
only
positions: 1)
break
argu-
it sufficient
down into three main
to address
one of his
injuries
general
ments.
Olafson’s
Grothe claims
were healed and he was
that under the
disability; 2)
statutory
free from
rules of
that Olafson was dis-
construction the three stat-
disability
pre-existing
abled but his
give
utes should
was due to
be construed so as to
effect to
bronchitis;
them,
Green,
citing
each of
that Olafson was disabled
State v.
pain
(Alaska 1978).
the recurrent
the unhealed
He asserts
fractured
that this
accomplished
by holding
can
ribs. The
court found that
AS 23.30.-
only
pain
preclude
055 and
suffered broken ribs and severe
AS 23.30.080
as a result
the defense
contributory negligence
injuries
the accident and
compar-
that Olafson’s
and not the
negligence
earning capacity.
provided by
ative
caused a loss in his future
defense
AS 23.25.-
opinion
Employers’ Liability
findings
our
020 of the
prob-
re-
Act. The
garding
disability
approach
lem
glosses
with this
Olafson’s
are stated with suf-
is that it
over
specificity
satisfy
apparent
requirements
ficient
direct conflict between the stat-
only
Civil Rule 52.
utes. While AS 23.30.055
mentions con-
tributory negligence, AS 23.30.080 is couched
19.Dr. Halter conducted several examinations
any
in broader terms and seems to bar
use of
examinations,
of Olafson. On the basis of his
employee negligence as a defense. Where the
including X-rays, he testified that Olafson’s rib
provisions
Employers’ Liability
(AS
Act
properly
fractures had not healed
and that con-
23.25.010-.040) conflict with those of the
sidering
age they
would not heal in
Compensation
Worker’s
Act we have held that
the future. Dr. Halter stated that
com-
prevail.
the latter
Haman v. Allied Concrete
plained
pain,
pain
that this
was caused
Products,
(Alaska 1972);
Finally, Olafson that Dr. Stew- (c) whether the is duration sufficient art’s testimony was cumulative testi- to the hiring to amount to the of continuing mony of Dr. Eufemio and Dr. Johnson. distinguished services as contracting from Both physicians testified that Olafson’s rib completion particular job. injuries from accident were healed Focusing first on the of character Olaf- present would not his future restrict work, it apparent son’s working ability. Grothe admits that Dr. special work involved skills and both was a testimony Stewart’s would be to the similar “separate calling” from business. other but physicians, claims that it would Thus, first two factors indicate that not be cumulative because of Dr. Stewart’s independent Olafson was an contractor expertise in this area. an employee. rather than third factor The standard for review of order focusing be considered when the char- denying 60(b) a Rule motion is whether the extent acter of Olafson’s work is superior court abused its Rever discretion. expected which Olafson could be justified only sal is if this court concludes his own insurance. The court con- trial court was clearly mistaken. danger of cluded that inherent Olaf- Davis, McCracken v. P.2d 771 dynamite with made it economi- son’s work 1977). We hold court’s Olafson to cally expect unreasonable to ob- denial was well within its discretion. factor, tain his own insurance. This accord- AFFIRMED. court, favor of con- ing weighs to the Olafson an There is no sidering employee. Justice, COMPTON, concurring part, indication, however, any evidence dissenting part. establishing whether presented to the court Although agree I performing type otherwise with or not the same persons of this appeal, disagree resolution I Olafson obtain own insurance. work as their with the that the conclusion there is no indication evidence Similarly, did not err in was an would have establishing how much it cost Grothe’s, employee I therefore also to obtain insurance and his own disagree with the conclusion that Olafson’s compensation percentage what be reduced should have been. It cost insurance would comparative amount of his negligence. was no eviden- appears therefore that there finding that it for the court’s indicates, tiary As basis the appropriate Olafson to ob- expect test was unreasonable to by which to determine whether engage one is to or an tain own insurance. If independent sense, tractor is as much that which set forth in Ostrem in it makes speculation, idle Board, Compensation more, Alaska Workmen’s to assume that Olafson was if not (Alaska 1973): P.2d sufficient for his in- provided dangerous permit him to herently work With reference to the character claim- (a) ant’s own insurance. work or business the factors are: obtain his *10 612 finding employee a of sta- analysis is to exam- cient step
The next
in
work
relationship
ine the
between Olafson’s
tus when all of the facts contradict
this
undisputed
It
is
finding,
they
According-
and Grothe’s business.
do in this case.
as
na-
intermittent
in
that Olafson’s work was
in
I
court erred
ly,
believe
The
of his work for
ture.
short duration
finding
employee
that Olafson was an
of
“contracting
that
was
Grothe indicates
he
Grothe’s,
independent
rather than an
job.”
of
completion
particular
tractor.
Ostrem,
these
order Olafson’s reduced
the amount of his comparative negligence,
but would otherwise the judgment affirm
of the superior court. Alaska,
STATE of Petitioner and
Cross-Respondent,
Kenneth E. HUGGINS and Terrence
Connors, Respondents and
Cross-Petitioners.
Nos. 6595. of Appeals
Court of Alaska.
Sept.