Maines v. Kenworth Alaska, Inc.

coverage must be in $50,000 with respect addition to the potential liability for facial policylimit.23 court-awarded attorney's result, fees. As a may Lestenkof not recover Civil (8) Rule 82 $115,606.85 in Rule 82 attorney's fees. attorney's fees part as of her UIM claim. State Farm must calculate attorney's fees from the total award rather than from the facial policy plus limit covered prejudgment v. CONCLUSION interest since policy Odden's does not contain For the above reasons we REVERSE the a valid limiting endorsement the amount of superior court's ruling that State Farm re- fees Farm pay. must State obligated pay additional attorney's mains fees State Farm paid these three amounts to pursuant to Odden's UIM coverage. settle liability Lestenkof's claim.

Lestenkof would be entitled to additional

amounts from State Farm in capacity its as

Odden's underinsured motorist if insurer Od- den was underinsured with respect

element of the total award. Lestenkof receive,

should pursuant to Odden's UIM policy and its prejudgment attendant interest and court-awarded attorney's fees coverages: MAINES, Kevin A. Appellant, (1) $50,000 policy facial limit of Od- den's UIM coverage. Odden is underinsured with respect principal amount of the ALASKA, KENWORTH INC., Kenworth damages awarded, since his lability policy Northwest, Inc., Paccar, Inc., d/b/a $50,000 only covered posited $1,000,000 Company, Truck Appellees.

verdict. No. S-11255. (2) $6,553.42in prejudgment interest cal culated from the face amount of the UIM Supreme Court of Alaska. coverage.24 Odden is underinsured with re spect to the prejudgment interest awarded to April 6, 2007. Lestenkof, liability since his policy covered only $6,553.42 posited $131,068.49 in terest award.

(3) No amount for Rule 82 attorney's fees.

Odden is not underinsured with respect attorney's fees, court-awarded since his lia-

bility policy covered the posited entire $115,606.85 fees award.

We conclude therefore that although

Odden's UIM coverage included mirror-im

age coverage for unlimited court-awarded at

torney's fees, that coverage may not be in

voked under the facts of this case. Odden fully insured, rather than underinsured, Hughes $6,553.42 (since v. Harrelson, only a 1106, 1107 year little over a had (Alaska 1993). elapsed between the time of the accident and the making of the payment). advance State Farm 24. The $6,553.42 amount assumes that State need not pay now Lestenkof an additional paid Farm prejudgment interest as of the date of interest, amount prejudgment however, given judgment. Because State paid Farm Lestenkof payment the UIM was made before the date prejudgment interest under Odden's UIM cover- of the assumed award. age part payment advance it made in paid November Lestenkof less than challenges the decision of

to strike two proffered affidavits in opposi- tion to summary judgment. We conclude the superior court did not abuse its discretion in excluding an unsigned and un- sworn declaration but did err in exeluding an affidavit from a late-disclosed without considering lesser alternative sanctions. We also conclude that expert's affidavit rais- es a genuine issue of material fact as to negligent maintenance on part of Ken- worth but not PACCAR. We therefore re- verse the order granting summary judgment in favor of Kenworth but affirm the order granting summary judgment in favor of PACCAR on this claim. Finally, we con- clude that expert's affidavit raises gen- uine issue of material fact as to negligent manufacture on part of PACCAR and therefore reverse the order granting sum- mary judgment to PACCAR on this claim. II. FACTS AND PROCEEDINGS Michael Stepovich, A. Stepovich Law Of- A. History Factual fice, Fairbanks, for Appellant. Kenneth procured Christian, temporary, Matthew C. sea Borgeson Burns, & sonal employment PC, as a Fairbanks, truck driver at Appellees for Exelu- Kenworth Alas- sive ka, Landscaping (Exclu and Paving, Inc. and Inc. Kenworth Northwest, Inc. sive) in Fairbanks in June 1999. Maines Aimee Oravec, Anderson Winfree Law Of- drove a Kenworth dump truck, designated

fice, APC, Fairbanks, Appellee for PACCAR, 2-6, Truck for Exclusive. The truck was Inc. by manufactured PACCAR, Inc., was sold to by Kenworth,1 Exelusive and was used exten BRYNER, Before: Justice, Chief sively in heavy construction. Truck 2-6 MATTHEWS, EASTAUGH,FABE, and was a new purchased truck CARPENETI, Justices. and first by used Exclusive in April 1998. Prior to Maines's truck, use of the repairs three were made OPINION Kenworth under general PACCAR's warran FABE, Justice. ty. Only one of repairs these concerned the I. INTRODUCTION air conditioning system and July occurred on 28, 1998 when replaced Kenworth an O-ring The driver of a dump truck appeals the on the suction hose at the compressor and grant court's of summary judgment charged the air conditioning system with 3.4 PACCAR, both the truck manufacturer, pounds of refrigerant. Kenworth, the truck distributor, for neg- ligent maintenance and manufacture of the During the summer of 1999 and after the truck. The driver alleges that the truck warranty expired, had a total of four repairs leaked refrigerant from its air conditioning were made to Truck 2-6 during Maines's use system and that he developed respiratory of the truck. Two of repairs those involved problems as a result of the leak. The driver leaks refrigerant from the air conditioning Northwest, (the Kenworth regional Inc. distrib- (the Truck Company manufacturer) are three dis- utor), Alaska, (the Kenworth Inc. local Kenworth tinct entities. We refer to Kenworth Alaska and dealer), PACCAR, Inc., Kenworth d/b/a collectively Northwest as "Kenworth." (asthma), now hyperresponsiveness chial existing leak June system. On Headapohl Dr. Dana patient." affects identified. system was conditioning the air during an assessment with concurred repaired hose was connection A loose examination medical independent system charging the the hose tightening Her claim. compensation workers' Maines's On refrigerant. R-134A pound of one with of Mr. that "[mJost diagnosis stated identified was leak another July leaking time of during the symptoms separate to and "wholly unrelated was exposure to with consistent refrigerant are A 1999." on June made repair from arthralgias." exception of Freon, tightened line condenser fitting at charged with re- again Burton system Dr. Brent request, and the At Exelusive's re- refrigerant amount frigerant. Dr. examined the four two of The last unknown. placed submitted affidavit in an concluded Burton conditioning air physi- made to repairs [Maines's] were that "none the trial is no But there to exposure 1999. August in with system consistent are symptoms cal or present were symptoms leaks indicate that the concluded He R-134A." to Mr. for not related needed likely refrigerant was than more "are additional that and morbid system. physical condition poor the Maines' anatomi- with rhinosinusitis obesity, chronic in June truck driving the began Maines in stuffy air and septum, heat cally deviated later, months Two apnea, cab, sleep potential and/or the truck Tallon, an Eric to Dr. complained Maines these factors." any all of of combination had that he specialist, nose, ear, and throat history mari- of that a noted Burton also Dr. clock" the following "around the developed tobacco pipe of use occasional juana use and throat, with voice nasal "sore symptoms: symp- physical his affect significantly would breath, wheezing, of shortness congestion, history mari- of have a does Maines toms. night, oc- at lungs, sweats congestion at least juana use since sleep, occasional poor palpitation, casional PAC- for arthralgia Eike, expert witness an vague with Lance nausea of bouts between R-134A flows extremities, including CAR, shoulders." how explained upper and condenser compressor, de- symptoms evaporator, these that maintained Maines point, starting connection each O-rings frame seal time that a six-week and over veloped leaked any refrigerant he "In the event stating: also contended He in June bronchitis, connection, would leak history O-ring any of an had from never "had itself, compartment engine form of for within sinusitis, treated cceur or been the air May maintained prior to He cabin." sleep disorder" not in the sleep apnea "multiple barriers system he was has time, conditioning stated Maines At the from enter- air compartment six engine work shifts prevent twelve-hour working nine-to of only failure cabin," "[the and ing were symptoms and that days a week leak system that could conditioning was referred Maines the air at work. while worse failure is a cabin Hanley, directly who into the refrigerant Dr. Owen pulmonologist, component No other core. evaporator bronchodilators several him on placed refrigerant to allow potential has failure asthma. treat rate of failure The cab.... directly into the McCurdy Stephen Dr. In December warranty in similar under evaporator and upper relate first to became per- one one-half just over models exposure to his problems respiratory lower cent...." R-134A, during 1999. refrigerant, to the Eike's contentions disputed Maines But McCurdy's affi- Dr. portions The relevant Meltvedt, Christopher through an affidavit R-134A; it is with familiar "I am state: davit affidavit stated: expert. automotive expo- Low hydrocarbon.... a fluorinated hold, more-probable- I on opinion "The typi- are hydrocarbons fluorinated with sures direct- refrigerant leaked basis, that airway than-not upper transient with cally associated 2- dump truck the cabin ly in to high concentra- Exposure[ ] irritation.... Mr. condition medical chronic bron- is based associated has been tions Maines, as out reports sure statement of set of Dr. Superior Meltvedt. Court McCurdy Headapohl; my and Dr. knowledge Judge Richard D. Savell noted his order experience and working with type this of air permitting supplementation that "[this rul- conditioning system; repair gen- orders ing preclude does not or address argu- erated Kenworth [and] the continued loss ment that use of an automotive refrigerant from the air conditioning sys- timely disclosed or that the affidavit is tem." substantively deficient." 25, 2003, On June Judge granted Savell History B. Procedural PACCAR's motion complaint Maines filed a against Kenworth concluding that there was no evidence of June alleging that negligent manufacture PACCAR or Ken- they negligently manufactured and main- worth rejecting theory ipsa res tained Truck 2-6. negligent mainte- loquitur. Judge Savell also issued oral find- nance claim mainly implicates a number of ings that the affidavit of McCurdy Dr. repairs undertaken during Truck 2-6's war- purpose inadmissible for of opposing ranty period during period summary judgment. Judge Savell indicated drove the truck. alleges he strongly disfavored allowing Meltvedt's negligence caused him exposed to be to haz- affidavit, permitted but he Maines additional materials, ardous which in turn caused him oppose time to Kenworth's motion to strike to develop respiratory problems. Maines Meltvedt's affidavit. sought damages $100,000. in exeess of 29, 2008, July On District Judge Court Maines also filed a claim for workers' com- Winston S. Burbank appointed Superior pensation roughly benefits at the same time Court Judge Tempore Pro presided and over seeking temporary disability benefits, total the remaining issues in the August case. On permanent partial disability benefits, and 13, 20083, Judge Burbank issued a written continuing medical benefits. These claims order that deemed Meltvedt's statement in- by were denied the Alaska Workers' Com- admissible for the purpose opposing sum- pensation 18, August Board on 2003. Ken- mary judgment; the written order also ex- worth and argue PACCAR that this denial of plained greater detail the rationale behind benefits renders appeal moot. Judge Savell's earlier decision to exelude Dr. 4, 2003, April

On McCurdy's PACCAR and affidavit. Judge Burbank issued a 13, filed second separate 2003, order on summary motions for judg- granting 21, 2008, ment. Kenworth's motion April On for summary judgment Maines filed a remaining motion thirty-day for a negligent extension of time to mainte- respond, repair. nance and granted appeals. which was Maines over and objection. Kenworth's 21, May 2003, On III. STANDARDOF REVIEW opposition submitted his to the mo- summary tions for judgment, including an We grant review a of summary judgment unsigned affidavit of Dr. McCurdy and an de novo.2 ruling When on a motion for sum accompanying notice filing an unsigned mary judgment, we draw all reasonable in affidavit, explained which that the affidavit ferences in the non-movant's favor and will needed to be mailed back to California for a affirm only if genuine there is no issue of signature and would not be returned in time material fact3 "may consider argu to meet 12, 2008, deadline. On June ment record, ascertainable from the even if permitted Maines was supplement to op- court did not rule on it.4 Once position with an Alaska Civil Rule 26 disclo- a movant has satisfied his burden of estab 2. Cabana Borough, v. Kenai Inc., Peninsula 50 Helicopters, 1085, 772 P.2d 1086 798, (Alaska 2002) Airlines, 801 (citing United 1989)). Inc. v. Taste, Inc., Good 982 P.2d 1259, 1262 (Alaska 1999)). 4. Cabana, 50 (quoting P.3d at 801 Jackinsky 650, Jackinsky, (Alaska 1995)). 654 Petroleum, Inc., Robles v. Shoreside 838, (Alaska 2001) (citing Dayhoff v. Temsco McCurdy was submit- of Dr. The affidavit of mate genuine issues absence of lishing an first filed with the unsigned when it was a ted as right to and his rial fact 21, copy A of a faxed May court on law, required, is "the non-movant matter of open page was later filed signature summary judgment, prevent in order 25, argument, of oral June could on the date showing that he facts specific set forth 2003, signa- 21, unnotarized July another tending to dis On reasonably evidence produce 2008, July was filed with page, dated ture the movant's contradict pute or page not include superior court. This did of fact a material issue thus demonstrate instead notary public signature Alaska, sufficient "any evidence In exists." signatures of Susan Warren- fact," contained so material genuine issue of raise a Savage, who affirmed Phillippa Alef and "more than scintilla it amounts to long as July page on McCurdy signed the Dr. evidence," sufficient is evidence contrary indicat- no sworn statement There is judgment. oppose made McCurdy's affidavit was ing that Dr. estoppel applies is collateral Whether penalty perjury, truthfully or under we review de novo.8 of law that question also indicating was ever submitted no statement admit or A trial court's decision unavailable, required notary was that a evidence, to ex including whether exclude explanation of also no 09.63.020. There is AS for an testimony, reviewed clude or Sav- positions titles or of Warren-Alef of discretion.9 abuse re- they fall within the age indicating that time of At the quirements of AS 09.68.010. IV. DISCUSSION summary judgment on argument on oral Superior Abuse Did Not Court A. that he had Maines admitted June Excluding Dr. Discretion Its affidavit with filed a notarized still not McCurdy's Its Con- appellees. Affidavit from court, copy served a nor Judgment Summary sideration Judge argument on June At oral was inad that this affidavit concluded Savell submits unsigned summary judgment. and the of improperly purposes excluded court missible ex McCurdy. Ken- order of Dr. Burbank issued a written Judge affidavit unnotarized court's de for this decision plaining that the the rationale responds worth MceCurdy's Dr. 13, correct because reasoned Judge Burbank cision was by our was bound un originally submitted the declaration sworn, that "asser v. Weimar holding did in Bennett notarized nor was never signed, pleadings and unavailable, in unverified and of fact notary was tions that a not state denying a relied on cannot be statutory require memoranda meet the hence did not Judge summary judgment.12 under either AS an affidavit ments of motion for 10 "Alaska quoted Bennett: or AS 09.63.020.11 further 09.63.010 Burbank (Alaska 1986)); (Alaska 1194, 1197 Schwartz, 724 P.2d 761, 765 Tomera, v. 89 P.3d 5. Parker 1999). Coon, 386, (Alaska Green, State, 974 P.2d 398 2004) Highways State v. Dep't v. (quoting of 1978) (citation 595, (Alaska P.2d 606 n. 32 586 persons omitted)). categories of lists six 10. AS 09.63.010 ac- affirmation oath, take an to permitted 878, J.B., knowledgment n. 4 in Alaska. P.2d 881 Matter 922 In the of added). 1996) (Alaska (emphasis certify person permits a to 11. AS 09.63.020 penalty perjury" that the mat- writing Ogden "under Servs., Envtl. Co., Inc. v. 7. Martech Constr. 1993) (Alaska the date shall state ''The certification ter is true. 1149 n. 7 1146, 852 P.2d Inc., execution, notary place fact that (citation omitted). and administer empowered to public official or other unavailable, following: certify 'I and the Ass'n, oaths is Chugach Elec. Inc. v. 8. Matanuska Elec. foregoing is perjury penalty 2004) (cit- Inc., 553, (Alaska under Ass'n, 99 P.3d 558 true."" Consulting, Contracting Inc. v. Alas- ing & Alaska 2000)). Labor, 340, Dep't 344 ka 691, (Alaska 1999) (quoting Jen- 694 12. 975 P.2d nings 1309-10 State, v. Co., Inc., Motor v. Am. Honda 9. Kava (Alaska 2002) (citing Hutchins provision statutes 'contain no ... permitting Christopher Meltvedt, an expert. automotive 1 3 unsworn declarations in lieu of affidavits. The superior court pre-trial issued a order on explained in Bennett that "we are not August 14, 2002 that required Maines to file willing equate an unsworn declaration with and serve notice of expert witnesses he an purposes affidavit for judg planned to call and their expertise fields of proceedings. ment This is an additional by November permit- Maines was safeguard which we wish to retain." Dr. supplement ted to expert his initial witness McCurdy's declaration satisfy does not any by information December 2002. Maines requirements of the in Alaska Civil Rule 56 identify did not plan his to call an automotive 09.63.020, or AS and Maines also offers no 27, 2003, until May day final dis- explanation for his comply failure to with due, closures were and he formally did not provisions."16 these argues that the request supplement opposition to sum- rule expanded should be permit affidavits mary judgment report Meltvedt's when "there are facts that could cause May 29, affidavit until In request, this trial court to believe that the affiant was Maines stated that Meltvedt's affidavit was identified at the time the document was not available at the time Maines filed his signed, and there indication that original opposition May but he affiant's statements were truthful." But offered no explanation further for his failure Maines fails explain why Dr. McCurdy to disclose Meltvedt expert by unable to have his affidavit as an notarized previous fashion; by deadlines timely set why the trial court. failed to sup time, ply At Judge notarized version granted Savell affidavit to the superior court any point; request at why supplement, specifically but re- superior court should consider the affidavit served for later consideration the issue of to be truthful without a sworn statement whether timely statement was disclosed Dr. McCurdy effect, to that especially given or substantively deficient. ample period permitted time Judge Burbank later concluded that Melt- superior court from original filing date. vedt's statement was inadmissible Moreover, on two request Maines did not additional first, grounds: that admission of time to file a notarized affidavit affidavit. superi- in violation pre-trial court's decision to exclude order would cere affidavit was not an ate abuse of prejudice discretion. unfairness and to the defen dants; second, the affidavit and

B. Superior It Was Error for the Court report were conclusory and failed to assert a To Exclude the Affidavit of Christo- factual basis for expert's opinions. pher Summary Meltvedt from Judg- trial court relied on Equipment, Yukon Inc. ment Consideration. v. Gordon17 support as for its decision. In Maines contends that the Equipment, Yukon deposed Yukon op the improperly court excluded the affidavit of posing parties' expert after the deadline for 13. 975 P.2d at 695. for an unsworn statement or declaration in Cali fornia. The California Code of Civil Procedure requires statement, Id. at 696. that an "unsworn declara tion, verification, certificate," or must "recite[ ] that it is by certified or declared him 56(e) or her to be 15. Alaska Civil Rule proper sets forth the true penalty under perjury, by form is subscribed of affidavits submitted for judg- her, (1), purposes. state, ment him or if executed within this execution, place states the (2), date and or if any place, executed at within or without this argues McCurdy's that because Dr. state, states the date of execution and that it is so affidavit was executed in California and Califor- certified or declared under the laws of the State nia authorizes unsworn declarations, this court of California." § Cal.Civ.Proc.Code 2015.5 should exception make an statutory to its re- (2005). quirements. See Corp. Stationers v. Dun & Brad- street, Inc., 62 Cal.2d 412, 42 449, 398 Cal.Rptr. (1965). 787 n. 2 1983), need not decide overruled on Maines, however, whether this would grounds excuse Inv., Inc., be- other v. L.J. Carr Williford cause he satisfy also failed requirements 783 P.2d 235, 237 n. 5 37(b) if it to a Rule sanction fying amounts lists, only did Yukon then filing witness own.18 We expert of its in a central issue effectively "determin{es] decide to secure a imposing such litigation." Before that precise situation "[tlhe noted 37(b)(8) oc designed to avoid sanction, finding were protective requires orders Rule Yukon be as case: as soon "willfulness," curred in this consideration of as well as the expert's parties' other came informed factors, including whether lesser several expert to rebut its own it then hired opinion, opposing protect adequately sanctions would that to allow concluded opinion.1 We y.22 part "unfair to an expert amounted this Yukon "a defined as conscious is "Willfulness" thereby Yukon could advantage" because discovery, and not mere impede intent expense as well time and save considerable inability good or faith resistance.2 delay, just energies on expert's focus its Here, of Meltvedt's affidavit having the exclusion rather than needing rebuttal points independent thorough and a central issue in the effectively determined expert undertake Maines maintains tigation.20 testimony only evi case. Meltvedt's inves or prejudice to Kenworth was no support there by Maines to submitted dence Equipment that in Yukon akin to link Maines's necessary causal between wait until he knew did not because Maines truck's air problems and the symptoms were or Kenworth experts PACCAR which system according to Melt- conditioning which hiring Meltvedt. to use before going leaking directly refrigerant resulted vedt day that the on the same Meltvedt disclosed the truck. As the into the cab of Melt- witness lists and filed their defendants noted, testimony, this there without court previous truck on two vedt had examined fact genuine issue of material was no occasions, of both defen representatives with summary judgment. survive a motion March 2008 vehicle present during the dants finding of court made no Yet Therefore, Equipment Yukon inspection. willfuiness, "[rlegard explaining instead avoiding prejudice and ex about concerns non-compliance was Maines' less of whether not at issue parties are pense to the willful, disclosures timing of Maines' case. very preju unfairness light sheds 87(b)(8) provides that Alaska Civil Rule through the prevent the court tried dice for violations imposes sanctions when a court pretrial order." orders, shall not discovery "[the addition, how difficult to see In the effect of estab that has make an order by Maines's late disclosure prejudice caused a claim or defense lishing dismissing cured not have been Meltvedt could litigation determining a central First, Ken- in this case.24 lesser sanction party acted court finds unless the were on notice and PACCAR worth that an previously have held willfully." We relationship an ex consulting from testi expert witnesses precluding order preclude on a central of or the outcome Equipment, at 431-32. 18. Yukon litigation ex- Before end the issue, or entirely. properly may be this kind sanctions of treme Id. at 432. noncompli- "willful imposed, must be '[tlhere orders, circum- or "extreme with court ance" 20. Id. ") "gross the Rules.' violations" stances," Servs., Inc., Arbelovsky 922 (quoting v. Ebasco Mining, Inc., 952 P.2d Creek 21. v. Melba Sykes (Alaska 1996)). 225, 227 P.2d 1998) (reversing superior the 1170 Sykes, prohibiting who had missed court's order omitted). Hawes, (citations at 634 P.2d 378 23. deadlines, expert calling any wit- filing from "" effect of ... 'hald] the order nesses because ") (trial litigation' determining in the a central deci- Sykes, at 1171 court's 952 P.2d 24. See 37(b)(3)). (quoting testimony expert Civil Rule preclude witness sion untimely list of witness submission sanction for was little indi- error where there reversible was ("[Wle at 1169 have 22. 952 P.2d repeated- Sykes, untimely have accepting lists would cation ly discretion is limited that the trial court's held prejudice and there defendant serious caused it selects is effect of the sanction when the sanctions). offending party, liability establish impose on the of lesser was no consideration 326 expert

pert testimony." present because Meltvedt was at previously 'Wehave ex inspection of the truck in March plained 2008. that "[wJleaknesses in by data used Moreover, Kenworth and PACCAR both expert an in formulating opinion his are filed expert their final May witness lists on properly weighed by jury after being 27, 2008, Thus, date same as Maines. brought by out jury eross-examination. The final experts by parties disclosure of all oc normally should decide whether an expert's curred on a date that days was nine opinion is based on sufficient facts.29 In before discovery close of on June 2008. If case, this Meltvedt asserted numerous depositions experts could not completed be sources opinions for his and maintained that discovery deadline, a brief extension opinions were based on conversations could have problem. remedied this Costs of Maines, as well as on disclosures depositions the late could have been assessed Kenworth, affidavits, other and twelve against the offending party. Ample time photographs engine truck's and cabin. any remained to problems cure because more If deficiency existed Meltvedt's testi than two months remained until the sched mony, it could have been through corrected uled trial date of 2008. discovery, through trial, cross-examination at through jury previously

We have noted that instructions. We therefore "[elx- ploration conclude that it was alternative sanctions error for will not be court assumed.... If to exclude meaningful alternative Meltvedt's affidavit. sane- available, tions are the trial court must ordi The dissent asserts that Maines failed narily impose these lesser sanctions.25 Alt appeal address on the issue of whether hough comply Maines's failure to with the Meltvedt's affidavit was conclusory until his pre-trial final may deadline have warranted brief, and, reply result, as a waived sanction, the issue. some the trial court required was While the dissent is correct that an issue meaningful, consider lesser alternatives raised for the reply first time in a brief is affidavit, exclusion of Meltvedt's which waived,30 deemed to have been had we the effect of believe determining a central issue that Maines has successfully preserved Hence, in the case.26 it was abuse of particular every issue at stage legal discretion to exclude the affidavit instead of process. First, in superior court, exploring lesser sanctions. explicitly did adequacy of Melt- address disagree also with the trial court's vedt's affidavit and whether it was based on alternative excluding basis for Meltvedt's re sufficient facts and would have been of assis port: conclusory. jury. tance to the At argument oral court Haisley relied on v. Grant27 when superior court, the following exchange oc striking affidavit, Meltvedt's explaining "[elxpert testimony must be based on suffi curred: cient facts and appreciable must be of assis Court: Where say does Mr. Meltvedt

tance jury." to the But what actions-what wrong Kenworth did overlooks Haisley actually "reaffirmed that fell below the standard of care? I our liberal view favoring the admission of can't find that. Is it in there? Arbelovsky, 922 P.2d at 227. added). (emphasis Id. 26. See Ball v. Birch, Horton, Bittner & Cherot, 58 Motel, Lights Sweaney, N. Inc. v. 561 P.2d (Alaska 2002) P.3d 481, (noting "vexa- (Alaska 1977) (citing Haisley, 486 delays" "misrepresentations tious regarding Bennett, P.2d at 370 and Maddocks v. availability expert testimony" justified en- (Alaska 1969)). 453, 455 attorney's hanced litigation-ending fees but not sanctions); Co., see also Honda Motor Ltd. v. Salzman, (Alaska 1988) (ulti- Bingo, (Alas- Crittell v. 536 n. 19 " justified mate sanction judge gave after 2004) trial (holding ka reply that 'may a brief raise defendant several oral warnings, and written no previously contentions not raised in either the heed, which defendant judge failed to and ex- appellant's appellee's ") (quoting briefs' Alas- tended deadlines, less drastic imposed sanctions, 212(c)(3)). R.App. ka P. orders). and endured violations of court testimony. This of- can for all witness they did-he function That Stepovich: Mr. when the at trial better served function is 708, he Rule] opinion. [Evidence an fer evidence is and presented, are Now, somebody witnesses if opinion. an offers taken. opin- him on his examine to cross wants that give brief, can He expert. Moreover, appellate is ion-this in his initial they and down can sit and he that the opinion argued Maines factual-they can Meltvedt's know, exeluding in it's a can-you its discretion "abused "Well, facts" and the say, by "misinterpret{[ing] him and affidavit" examine cross inspect- had that Meltvedt What opinion? ignoring that of the basis what's two on at least question in support- ed the vehicle You're talking about? you are call, we find a close Although it is occasions. that, using that...." you're ing of challenge to the constitutes argument this court, in the argument At oral affida- ruling that Meltvedt's superior court's argument the directly addressed also Maines ... facts "on sufficient based vit was neither foundation: lacked affidavit that Meltvedt's jury." to the assistance appreciable [nor] point is that The second Stepovich: Mr. by the character fortified is Our conclusion pur- the support for has no affidavit this Meltvedt's that decision superior court's summary judgment. opposing pose of superior court conclusory-the report was that that's-he Well, submit we would without elaboration decision expressed its under opinions [Evidence out his has set similarly pays but response and Civil complied with We've Rule] point. to this attention little 56(e) as the form as far Rule question addressed Finally, Maines that it opinion gives his He affidavits. in his affidavit sufficiency of Meltvedt's negligent there, that there was leaks brief, that "Meltvedt arguing reply appellate repaired it continuously They repair. familiar opinion, was give an qualified to was clearly there's So through the summer. he had question, and the vehicle mean, wants Court if the enough to-I pointed also Maines experience." requisite throw|{ other after some guy out ] "Meltvedt that reply brief appellate out his argu- filed, other there's some is motion fell to the vehicle repairs that opined But story. ment, that's a different then in the automo- acceptable the standard below today in raised here what's based on refrigerant, leaking industry, that and tive question of there's a summary judgment, not, vehi- into the leaked than probably more favor- fact, and, light most taken to raise This was sufficient cab. cles there's non-moving party, able to fact." of material genuine issue to decide. jury needs that issues adequately ad Maines that conclude opposing materials in his written And court's for the both bases dressed Meltvedt, elaborat- motion to exclude and did affidavit Meltvedt's to strike decision stating: position, ed on his Because appeal.31 the issue on waive Plaintiff's assertion Defendant's affidavit The Meltvedt's to disallow error (Meltvedt, Heada- McCurdy, genuine raises affidavit experts Meltvedt's because Kenworth's test as to fact Daubert/[Coon] material all fail issue of poh!) grant it was error breach, conclude merit.... we and without premature Kenworth. ex- [this] function gatekeeper Court's to the left testimony is better pert witness of Sum- Superior Grant Court's C. trial, after at discretion sound court's mary Judgment to PACCAR thorough a concise has heard Court Negligent Maintenance Claim ex- testimony on direct of their recitation Error. Not Was the trial undisputed -It is amination. is an there argues obligation under have an court does repairs the number fact on of material "gatekeeper" fulfill this rule to Evidence 2005) (exercising n. 22 today, rely upon this basis Although we do not a claim consider "our discretion" the discretion it is within we note that generally being only arguably after waived been has otherwise an issue court to reach brief). appellant's upon in touched Soldotna, Vroman v. See City waived. and, made to the truck there record sufficient to raise a genuine issue of fore, grant error in material fact. agree. ing summary judgment on this claim. But expert witness, PACCAR's own Lance not, Maines does in either his op materials Eike, states only that "[the failure of the air posing summary judgment or his briefs on conditioning system that refriger- could leak appeal, provide direct evidence that PAC- directly ant into the cabin is a failure in the CAR ever conducted repairs on the evaporator core." goes Eike then on to ar- Instead, truck. abundant evidence shows gue that repairs none of the made to the Kenworth who conducted the implicated vehicle evaporator core. But repairs three to the truck during undertaken argument only addresses whether Ken- warranty period.32 Maines in his own negligent worth was in maintaining the truck affidavit states as much. implicate does not PACCAR's manufac- design ture or of the truck. ruling summary judgment is to be made based on parties the record the have What go does to the issue of defect is actually presented, not on potentially one Eike's statement that "[the failure rate of possible.33Because Maines did allege not evaporator warranty [core] under in simi warranty breach of claim provide and did not just lar models is over per one-half of one any evidence that PACCAR or employees its cent." appears Eike to advance this failure any repairs, undertook court's rate as a normal design attribute of the of grant of to PACCAR on the truck. But people might reasonable re the claim negligent gard maintenance was not a rate of failure in which one out of in error. every two hundred trucks will develop a toxic

gas leak within the warranty period as unace- D. Superior It Was Error for the Court ceptably high. While the record does not Summary To Judgment Grant address the industry, standards of the wheth er an design feasible,35 Negligent alternative

PACCAR on the Claim of Manufacture. predicted whether this failure rate is a result negligent design manufacture, it would additionally asserts a claim of question seem that is one of fact for the negligent against manufacture PACCAR. jury. The superior court found that there was "no something evidence that was manufactured A question of present fact is also improperly in design [the truck's] or that its the issue of causation. The Eike affidavit design was deficient This evidence only confirms that a defect in evaporator would generally have to be produced and core could cause a leak of this kind of toxic supported by opinions engineers gas into the truck cab. Eike's discussion of other experts. automotive Nothing submit failure rates and evaporator core testing plaintiff goes ted to the manufacture." practices evaporator confirms that core de- argues there is evidence in the feets and the consequences of a leak are repairs 32. These three during were made brings 34. Maines negligence this case in and not and, warranty period brought had Maines liability. strict adopted Alaska liability the strict claim, warranty breach of could have been at- approach product Clary defect claims in tributed to PACCAR. PACCAR could therefore Center, Chrysler (Alas- Avenue 454 P.2d 244 Fifth ka be negligence liable for agents of its under a then, Since majority product theory respondeat superior. But Maines did brought defect cases have been liability. in strict proceed had, theory. on this Even if he brought Cases theory negligence under a are whether circumstantial evidence would be rare, but possible. are nevertheless enough to show that PACCAR had the kind of control required by over Alaska courts require 35. Alaska proof does not of a reason- See, open question. is an eg., discussion of re- design able alternative spondeat require- to be an absolute requirements and the joint ment. See discussion of the Barker test in Cater- control Lights in Northern Motel, 561 P.2d at Beck, pillar Tractor Co. v. 1186-88. 880-86 (Alaska 1979). 33. Madeirense do Brasil v. Stulman-Emrick S/A (2d Cir.1945). Lumber Co., F.2d

320 The Board denied attorney's and costs. record, fees other Evidence foreseeable. opin and issued a written McCurdy, of these claims further all Dr. affidavit of than 18, 2003, days five after the August fact question a ion on is there suggests summary judg type the civil case on symptoms were resolution of Maines's whether type thus was not exposed to decision person in a ment. The Board's occur to to his they rendering were due court in gas or whether toxic considered summary judgment on lifestyle. granting its order first parties must for sum a motion to defeat For Maines before we in the trial court raise this issue specific must set forth mary judgment, he the doctrine of collater whether can consider of material genuine amounting to facts It is applies in this instance. estoppel al of mate genuine issue ct.36 To create fa not that were "[mJatters well-established a scintilla "more than must be rial fact there 7 ... or in the trial court Here, evi- made issues Maines's contrary evidence.3 not be the court" will before of defect were showing on the issues dentiary tried appellate brief appeal."39"[Aln on considered a motion for to defeat is sufficient causation nor refer append neither can therefore conclude judgment. We summary 40 collat . .." Because the record. outside the summary judgment grant that it was error Board's decision estoppel manu effect of the negligent eral the claim PACCAR on at the properly raised or briefed was not facture. level, properly this issue is not superior court Estoppel Collateral The Doctrine of E. before us. Appeal Maines's Render Does Not Moot. CONCLUSION v. contend Kenworth and of the McCur- AFFIRM the exclusion by the Alaska Workers' bound that Maines is did we REVERSE finding that Maines dy affidavit. But because Board Compensation affidavit, RE- we the Meltvedt exclusion of respiratory ailment not suffer a work-related summary judgment grant of this VERSE renders Board's decision and that maintenance negligent on the decision the Board's appeal moot because make estoppel effect.38 does not the affidavit given collateral claim. Because should be as to material fact issue of genuine out a conduct the Board July 24 and On part of PAC- on the negligent maintenance hearing regarding an administrative ed of sum- refrig CAR, partial grant exposed he was AFFIRM the claim that we claim. on this judgment to PACCAR working mary injury him while caused erant ma- genuine issue of conclude a Because we whether considered The Board at Exclusive. manufac- negligent raised as to fact is dis terial temporary total entitled to Maines was ture, grant of we REVERSE benefits, impair partial permanent ability claim. on this judgment to PACCAR benefits, expenses, transportation ment dispute. relating Id. (citation to the Martech, exist further issues omit- n. 7 852 P.2d at 1149 finding prior or Generally "a decision ted); 365, 367 State, 994 P.2d v. see also Meyer pro- compensation [workers'] in a 1999). relevant issue (Alaska issue in ceeding judicata to the same res is the same subsequent at law to recover suit (citation omit- n. 7 Martech, 852 P.2d at 1149 death, is to defeat the effect injury whether ted). See 8 to the suit." a defense or to defeat the suit Larson, Workers' Larson's &Lex K. Artaur Larson pre- estoppel, as issue also known 38. Collateral Compensation (1999). 79.72(d) §Law reliti- clusion, "is the doctrine prevents actually litigated and gation that was of an issue Co., Cas. v. Cont'l Cas. Co. Mut. 39. Lumbermens necessary part earlier a critical and 1963). (Alaska P.2d 109 387 litigated the issues judgment. then, action, binding upon the the first State, Dep't v. Transamerica Natural Res. issues litigation which those parties in all later MopErN 1993) Dicrionary Co., Bryan Garner, Premier Ins. A. A arise." (1987). judicata is the (citing Res P.M., L.L.M. Lzcat Usacr broader, implies that no principle, but same brief, appellant's CARPENETI, Justice, and it is therefore not with whom EASTAUGH, Justice, joins dissenting in adequately. briefed It is mentioned for the part. brief, first in reply time Maines's too late under our case law. Maines has therefore today's Opinion, In Part IV.B. of the court waived consideration of the issue. superior holds that it was error for the court to exclude the Meltvedt affidavit from sum- Today's Opinion in appel- tries to find mary judgment superior consideration. The opening lant's brief a challenge superi- to the court excluded grounds: the affidavit on two ruling court's that the Meltvedt affidavit its lateness lack and its of substance. Be- conclusory. Conceding that the issue is appellant timely cause the has addressed call," a "close points court to Maines's superior the second basis for the court's deci- opening assertion superi- brief that the sion, I appellant would hold that has or court abused its discretion "misinter- any objection waived to this second basis for pret{ing] ignoring the facts" and decision, superior and affirm the court on that inspected Meltvedt had vehicle the basis of waiver. question on two sparse occasions. But this

Judge Burbank ruled that the Meltvedt language go does not at all to the issue affidavit was late and that it was so concluso- superior whether court erred in finding ry oppose summary as to be useless to judg- the affidavit conclusory; goes to be it opening ment. In his argues brief Maines when Kenworth and ought to have superior that court erred in its lateness realized that going Meltvedt was to be called ruling, challenge but he does not expert as an witness. The section of the court's ruling. alternative basis for its appellant's brief in language which this appellant argument has therefore waived on begins: found "The trial court excluded the this issue. This ais sufficient basis for affir- affidavit of Chris Meltvedt because it found mance. that Meltvedt was not expert as an identified prior added.) filing." (Emphasis to its consistently We have parties found that entire section is then showing devoted to challenges have waived to lower court action Kenworth and PACCAR were on notice that (1) failing to raise an issue in the lower Meltvedt was an early stage from an points or to include it in appeal;1 on sum, of the case. In there is not a word in (2) failing to brief an issue to this court after opening Maines's brief about whether (8) including point appeal;2 on Meltvedt conclusory affidavit was and with- failing adequately3 to brief an issue support. out factual Here, Maines has failed to address ruling court's above, the Meltvedt affi- As noted Maines did not mention davit report conclusory were and thus reply issue at all until his brief Our every juncture insufficient at critical perfectly case law is argument clear that an appellate process: It is not may statement not be raised for the first time in reply points it is not mentioned at all brief.4 of appeal, on Rice, 1097, 2000) banks v. 20 P.3d Gunderson v. Univ. 1106 Alaska, Fairbanks, 902 323, (Alaska 1995) P.2d (holding 327 n. 5 (holding "sparsely that issue was so briefed" as argument not raised before trial court waived). or not to be points included in appeal statement of on will appeal). not be considered on State, Corr., 1266, Dep't Lewis v. 139 P.3d (Alaska 2006) ("We 1272 argu- do not consider Bartholomew, 1162, 2. Wasserman v. 38 P.3d brief."); reply ments raised for the first time in a (Alaska 2002) (finding 1171 party waiver where Alaska, Sengupta v. Univ. 139 P.3d points listed appeal issue in but failed to brief (Alaska 2006) ("We arguments deem raised for it); State, Dep't Union Oil Co. Cal. v. Reve reply the first time in a brief to have been nue, (Alaska 1984) 1259 n. 6 waived."); Inc. v. Univ. Alaska, Lakloey, (finding points ap waiver where numerous (Alaska 2006) ("'Because P.3d 323 n. 18 peal briefed). were not Lakloey raises this contention for the first time in Mundt, brief, it."); reply Shearer v. its we do not consider Reust v. 2001) (holding pro litigant argu- se waived Alaska Petroleum Contractors, Inc., 127 it); "develop" City ment for failure to Fair (Alaska 2005); State, v. Commercial Simpson the issue Despite Maines's failure raise Douglas VALENTINE, Appellant, conclusory nature of the Meltvedt L. fashion, timely Opinion in a affidavit al court's nonetheless considers Alaska, Appellee. STATE of summary judgment-that basis for

ternative No. A-9491. lacked substance and was affidavit Meltvedt's alternative conclusory-and holds Appeals of Alaska. Court of But failure to basis was erroneous. March reply brief issue before his address this considering it. no basis for leaves us with Rehearing April Denied plain error doctrine5-a doctrine Even the by today's Opinion-would not addressed

not by the to reach an issue not raised

allow us may affirm on

appellant before us. While we record,6 supported by quite it is basis thing go beyond the issues raised another appellant in to reverse.7 order supe

Because Maines did mention ruling affidavit

rior court's that the Meltvedt points appeal in

was insufficient his on brief, opening in

he did not raise the issue any argu

I would hold that he has waived that the court erred refus

ment I

ing to consider the Meltvedt affidavit that court on

would affirm the respectfully

that basis.8 I dissent. (Alas- late court will not consider new issues in order Comm'n, Fisheries 101 P.3d Entry court). 2004) (argument lower ka waived because first raised to secure reversal of court). reply brief to resolve this issue. 8. Waiver is sufficient basis State, See, eg., Dorman v. 622 P.2d Judge passing But I note in Burbank's deci- 1981) (Alaska (party may appeal, raise issue affidavit was insufficient sion that the Meltvedt trial, even failure to raise it at if the issue after conclusory appears nature to be because of its error"). Thus, error, involves "plain plain the court's discretion: The Meltvedt well within party's used to excuse a failure to raise doctrine background, merely affidavit sets out Meltvedt's court, in the trial an issue requires produced that he has reviewed documents recites appellant appel- have the issue in the addressed case, "analysis, in the and concludes that late court. Maines did not address of the truck service, maintenance repair" insufficiency the Meltvedt affidavit's before us. acceptable in the truck "fell below the standards repair industry" so and automotive service and TWS, Inc., 6. Hall v. conditioning [truck's] "a air failure refrigerant." leaking system ... resulted in conclusion, unsupported by Other than this flat Cunningham, 7. See Still {acts, nothing. 2004) (Issues any specific The Meltvedt there is are not raised in the report greater back- adds detail as to Meltvedi's waived be asserted court are and cannot reviewed, ground he but re- grounds overturning judg- and the documents appeal language regard conclusory the same cites ment."); Reg'l Auth., 54 Pitka v. Interior Hous. (Alaska 2002) (holding appel- opinion. to his

Case Details

Case Name: Maines v. Kenworth Alaska, Inc.

Court Name: Alaska Supreme Court

Date Published: Apr 6, 2007

Citation: 155 P.3d 318

Docket Number: S-11255

Court Abbreviation: Alaska