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Borg-Warner Corp., et al v. Avco Corp. (3/19/93), 850 P 2d 628
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
BORG-WARNER CORPORATION and )
its Division MARVEL-SCHEBLER/ ) Supreme Court File Nos.
TILLOTSON; FACET AEROSPACE ) S-4381/S-4418
PRODUCTS COMPANY; and FACET ) Superior Court File No.
ENTERPRISES, INC., ) 4FA-88-1553 Civil
)
Appellants/ )
Cross-Appellees, )
)
v. ) O P I N I O N
)
AVCO CORPORATION (LYCOMING )
DIVISION), )
) [No. 3938 - March 19, 1993]
Appellee/ )
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: David T. Hunter and
Michael K. Nave, Lane Powell Spears Lubersky,
Anchorage, for Appellants/Cross-Appellees.
Stephen DeLisio, Allan J. Olson and John T.
Robertson, Staley, DeLisio, Cook & Sherry,
Inc., Anchorage, for Appellee/Cross-Appellant
Avco Corporation (Lycoming Division).
Michael N. White, Preston, Thorgrimson,
Shidler, Gates & Ellis, Anchorage, and James
L. Ackerman, Day, Berry & Howard, Boston,
Massachusetts, Amicus Curiae for Rogers
Corporation.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice.
After Kenneth Swanson was killed in an airplane crash,
Swanson's estate filed a wrongful death action against the
manufacturer of the airplane's carburetor (Borg-Warner
Corporation, Marvel-Schebler/Tillotson, Facet Aerospace Products
and Facet Enterprises; hereinafter "Borg-Warner"). Borg-Warner
filed contribution claims against several third-party defendants,
including Avco Corporation, the engine manufacturer (hereinafter
"Avco"). In this appeal, Borg-Warner challenges the trial
court's grant of summary judgment in favor of Avco.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 1986 Kenneth Swanson and his passenger
were killed when Swanson's airplane crashed near Umiat on the
North Slope.1 Two years after the accident, Swanson's estate
filed a wrongful death action against the carburetor
manufacturer, Borg-Warner, and an aircraft mechanic, Edward
DePriest. None of these parties sought a jury trial.
In March 1989 the trial court held a pretrial
conference and scheduled trial to begin the week of November 20,
1989. In July Borg-Warner moved to join third-party claims for
contribution against Avco, Piper, Petersen and Rogers. Swanson
opposed joinder of the third-party defendants, claiming that it
would significantly delay trial and prejudice his case. After a
hearing, the court granted Borg-Warner's motion to join the third-
party defendants, but ordered a separate trial for the
contribution claims.
After Borg-Warner served Piper, Avco, Petersen and
Rogers, two of the third-party defendants, Avco and Piper,
requested a jury trial. In September 1989 Borg-Warner moved the
court to rejoin the contribution claims to the first trial on the
grounds that the Tort Reform Act, AS 09.17.010-.900, mandates a
single jury trial of the first-party and third-party claims.
Swanson, Piper, Rogers and Avco opposed the motion, arguing,
inter alia, that the complex nature of the issues and the
imminence of the Swanson trial made a single trial impracticable.
The court denied Borg-Warner's motion.
In November 1989 Swanson's claims were tried before
Judge Jay Hodges. Swanson argued that a defective condition of
the aircraft carburetor had caused a sudden loss of power which
resulted in the crash.2 Borg-Warner's primary defense was that
the crash was caused by pilot error and adverse weather
conditions. Alternatively, Borg-Warner claimed that if the
carburetor float did, in fact, absorb fuel, this resulted from
Swanson's use of auto-gas, contrary to Avco's and Piper's
specific warnings. Although Borg-Warner presented some evidence
of the alleged fault of the third-party defendants, the trial was
conducted under the assumption that contribution issues would be
addressed in a second trial.
In February 1990 the trial court issued its "Memorandum
Decision and Findings of Fact, Conclusions of Law." The court
found that the legal cause of the accident was the defective
carburetor.3 The court also found that the use of auto-gas was
not a factor which contributed to the absorption of fuel by the
float. The court concluded that Borg-Warner's concealment of the
manufacturing defect constituted "outrageous conduct and a
reckless disregard of the rights of others." The court found
Borg-Warner jointly and severally liable for $1,669,460 in
compensatory damages,4 and also awarded Swanson $5,008,380 in
punitive damages.
Following issuance of the court's memorandum decision,
but before entry of judgment, Borg-Warner and Swanson settled for
approximately $4.5 million. Borg-Warner and Swanson then
stipulated to dismiss Swanson's claims with prejudice. After the
court ordered Swanson's claims dismissed pursuant to the parties'
stipulation, Borg-Warner unsuccessfully moved for the withdrawal
of the court's Memorandum Decision.
Avco, Piper and Rogers5 all moved for summary judgment
on Borg-Warner's third-party claims, arguing, inter alia, that
Borg-Warner had no right to contribution under AS 09.16.010(c).6
The court granted Avco's and Piper's motions, finding that Borg-
Warner, as a "wilful and wanton"tortfeasor, had no right to
contribution from Avco and Piper and that Borg-Warner was
collaterally estopped from relitigating this issue. However, the
court denied Rogers' motion because it concluded that Rogers'
conduct may have been as culpable as Borg-Warner's.
This appeal followed.7
II. DISCUSSION
On appeal, Borg-Warner contends that the trial court
erred in applying collateral estoppel in the absence of a final
judgment. It further argues that the trial court erred in
ordering separate trials in the first place and that Borg-Warner
did not have a "full and fair opportunity"to litigate its third-
party claims. Finally, Borg-Warner asserts that the trial court
erroneously interpreted "intentional" (as used in AS
09.16.010(c)) to include "wilful and wanton"conduct. Avco cross-
appeals on the issue of Borg-Warner's status as an "intentional"
or "wilful"tortfeasor.
A. PROPRIETY OF SEPARATE TRIALS
Borg-Warner claims that AS 09.17.080 (1986) requires a
single trier of fact to make a single allocation of comparative
fault among all parties.8 We disagree.
At the time of the accident, AS 09.17.080 provided:
(a) In all actions involving fault of
more than one party to the action, including
third-party defendants and persons who have
been released under AS 09.17.090, the court,
unless otherwise agreed by all parties, shall
instruct the jury to answer special
interrogatories or, if there is no jury,
shall make findings, indicating
(1) the amount of damages
each claimant would be entitled to
recover if contributory fault is
disregarded; and
(2) the percentage of the
total fault of all of the parties
to each claim that is allocated to
each claimant, defendant, third-
party defendant, and person who has
been released from liability under
AS 09.17.090.
(b) In determining the percentages of
fault, the trier of fact shall consider both
the nature of the conduct of each party at
fault, and the extent of the causal relation
between the conduct and the damages claimed.
The trier of fact may determine that two or
more persons are to be treated as a single
party if their conduct was a cause of the
damages claimed and the separate act or
omission of each person cannot be
distinguished.
(c) The court shall determine the award
of damages to each claimant in accordance
with the findings, subject to a reduction
under AS 09.17.090, and enter judgment
against each party liable. The court also
shall determine and state in the judgment
each party's equitable share of the
obligation to each claimant in accordance
with the respective percentages of fault.
(d) The court shall enter judgment
against each party liable on the basis of
joint and several liability, except that a
party who is allocated less than 50 percent
of the total fault allocated to all the
parties may not be jointly liable for more
than twice the percentage of fault allocated
to that party.9
Although a single trial allocating fault among all potentially
liable parties may promote judicial economy, nothing in the
legislative history of AS 09.17.080 indicates that the
legislature intended to require a single trial for first- and
third-party claims. In our opinion, the traditional two-step
system of first establishing liability and then seeking
contribution is not inconsistent with the comparative negligence
principles underlying the Tort Reform Act. Although one complete
and comprehensive hearing is preferable where complex issues are
intertwined, see Shanley v. Callanan Indus., Inc., 429 N.E.2d
104, 107 (N.Y. 1981), in certain circumstances a separate trial
allocating fault among first- and third-party defendants is
appropriate.10
Alaska Civil Rule 42(b) provides that a trial judge may
order a separate trial of third-party claims "in furtherance of
convenience or to avoid prejudice, or when separate trials will
be conducive to expedition and economy." In this case, Borg-
Warner did not seek to join the third-party defendants until
approximately three months before the scheduled trial date.
Given the need for additional discovery, there is a strong
probability that ordering a single trial in this case would have
significantly delayed the Swanson trial. We therefore conclude
that Judge Hodges did not abuse his discretion in ordering
separate trials.
B. CONSTRUCTION OF AS 09.16.010(c)
The Alaska legislature adopted the Uniform Contribution
Among Tortfeasors Act in 1970.11 Ch. 30, 1, SLA 1070 (codified
as amended at AS 09.16.010-.060). Alaska Statute 09.16.010(c)
(1983) provides:
There is no right of contribution in
favor of any tortfeasor who has intentionally
caused or contributed to the injury or
wrongful death.
We hold that this statutory bar applies only to tortfeasors who
act with the specific intent to cause the resultant harm.12
We adopt this interpretation of "intentional"for two
reasons. First, the legislature deleted the "wilfully or
wantonly" language contained in the uniform act from which AS
09.16.010(c) was drawn.13 In the absence of any legislative
history indicating otherwise, we believe that this omission
indicates that the legislature rejected a broader application of
the statutory bar. See 2A Norman J. Singer, Sutherland's
Statutes and Statutory Construction 48.04, at 22 (1992) (where
specific language is omitted by the legislature, this is an
indication that the legislature rejected this language).
Second, we conclude that an expansive interpretation of
"intentional" is incompatible with the comparative negligence
principles introduced into the law of contribution by the
enactment of the Tort Reform Act in 1986. Alaska Statute
09.17.900 defines "fault"to include "acts or omissions that are
in any measure negligent or reckless toward the person or
property of the actor or others, or that subject a person to
strict tort liability." (Emphasis added). In allocating a
percentage of the total fault to each potentially liable party,
AS 09.17.080(b) directs the trier of fact to consider "the nature
of the conduct of each party at fault"as well as the degree of
the causal tie between the conduct and the damages claimed.
(Emphasis added). The Tort Reform Act clearly contemplates a
relative allocation of fault between all unintentional
tortfeasors, whether negligent, grossly negligent or wilful and
wanton.14
When two statutes deal with the same or related subject
matter, we strive to construe them as harmoniously as possible.
See State, Dep't of Highways v. Green, 586 P.2d 595, 602-03 &
n.24 (Alaska 1978) (interpretation of one statutory provision is
properly influenced by content of another provision addressing
similar purposes or objects); Watt v. Alaska, 451 U.S. 259, 266-
67 (1981) (although the more recent of two inconsistent statutes
may govern, statutes are not to be read as being inconsistent
unless the sense and purpose of each statute cannot be preserved
otherwise). By construing AS 09.16.010(c) to bar only
"intentional"tortfeasors from seeking contribution, we preserve
the sense and purpose of both acts.
We conclude that the trial court erred in ruling that
Borg-Warner, as a "wilful and wanton"tortfeasor, was barred from
seeking contribution under AS 09.16.010(c).
C. COLLATERAL ESTOPPEL
Although Borg-Warner is not barred from seeking
contribution under AS 09.16.010(c), we hold that Borg-Warner is
bound by Judge Hodges' findings concerning the nature of its
conduct toward Swanson because this issue was fully litigated in
the Swanson trial.
Under Alaska law, the following circumstances must
exist before collateral estoppel may apply:
1. The plea of collateral estoppel
must be asserted against a party or one in
privity with a party to the first action;
2. The issue to be precluded from
relitigation by operation of the doctrine must be
identical to that decided in the first action;
3. The issue in the first action
must have been resolved by a final judgment
on the merits.
Murray v. Feight, 741 P.2d 1148, 1153 (Alaska 1987). There is no
question that the "party identity" and "identity of issue"
requirements are satisfied here. Thus we must decide whether the
court's memorandum decision is sufficiently "final" for the
purposes of collateral estoppel.15
In Briggs v. State, Dep't of Pub. Safety, 732 P.2d 1078
(Alaska 1987), this court observed:
For the purposes of issue preclusion,
"final judgment" includes "any prior
adjudication of an issue in another action
that is determined to be sufficiently firm to
be accorded conclusive effect." Restatement
(Second) of Judgments 13 (1982). Factors
supporting a conclusion that a decision is
final for this purpose are "that the parties
were fully heard, that the court supported
its decision with a reasoned opinion, that
the decision was subject to appeal or was in
fact reviewed on appeal." Restatement
(Second) of Judgments 13 comment g (1982).
Id. at 1082 (citations omitted); see, e.g., Rapoport v. Tesoro
Alaska Petroleum Co., 794 P.2d 949, 951-52 (Alaska 1990) (a
judgment which has been appealed is still "final or firm"for the
purposes of issue preclusion).
Borg-Warner argues that collateral estoppel should not
apply here because the case was settled before final judgment was
entered. Borg-Warner emphasizes the fact that the court
specifically dismissed Swanson's claims "without entry of
judgment." Relying on Greater Anchorage Area Borough v. City of
Anchorage, 504 P.2d 1027 (Alaska 1972), overruled on other
grounds by City & Borough of Juneau v. Thibodeau, 595 P.2d 626,
628-29 (Alaska 1979), Borg-Warner concludes that the court's
"decretal" language should control. In Greater Anchorage Area
Borough, we decided that when determining whether a judgment is
"final" for the purposes of appeal, the trial court should look
to the substance and effect, rather than form, of the rendering
court's judgment and focus primarily on the operational or
"decretal" language therein. 504 P.2d at 1030-31. A "final"
judgment is one that disposes of the entire case and ends the
litigation on the merits. Id. Since the court's memorandum
decision is not appealable without entry of judgment, Borg-Warner
concludes that the memorandum decision is not sufficiently
"final"for collateral estoppel to apply.
In our opinion, the finality requirement does not
necessarily require the entry of a final judgment.16 The Fifth
Circuit has discussed in great detail the "finality"requirement
for collateral estoppel under the federal rules. Chemetron Corp.
v. Business Funds, Inc., 682 F.2d 1149, 1190-92 (5th Cir. 1982),
vacated on other grounds, 460 U.S. 1007 (1983), cert. denied sub
nom. Binliff v. Chemetron Corp., 460 U.S. 1013 (1983). Chemetron
discusses the effect of earlier securities fraud litigation on a
current action involving the same defendant, Bignall, but a
different plaintiff. At the close of the earlier trial, the
judge filed a lengthy memorandum decision detailing his findings
of fact and conclusions of law, and awarded substantial money
damages to plaintiff Cosmos Bank. Before final judgment was
entered, the parties settled the case. Although the judge
refused to approve a proposed order preventing the use of the
memorandum decision for collateral estoppel purposes, it withdrew
the memorandum decision when it dismissed the case with
prejudice. Id. at 1187-88. In the later, related action,
Chemetron sued Bignall and sought to collaterally estop him from
relitigating certain factual issues adjudicated adversely to him
in the Cosmos Bank litigation. Id. at 1188.
The trial court denied Chemetron's proposal, but the
Fifth Circuit reversed, observing that
the finality requirement does not
necessarily demand the ministerial act of
executing a judgment. It does not elevate
form over substance in that fashion -- the
accurate definition of "finality" in the
offensive collateral estoppel context is
"fully litigated."
Id. at 1191. The Fifth Circuit also noted that finality in the
collateral estoppel context "may mean little more than that the
litigation of a particular issue has reached such a stage that a
court sees no really good reason for permitting it to be
litigated again." Id. (quoting Zdanok v. Glidden Co., Durkee
Famous Food Div., 327 F.2d 944, 955 (2d. Cir. 1964). The Fifth
Circuit concluded that the decision to apply collateral estoppel
is within the discretion of the trial court, although this
discretion must be tempered by principles of fairness in light of
the circumstances in each particular case. Id.
We adopt the Fifth Circuit's reasoning in Chemetron
and conclude that appealability is not a necessary prerequisite
to "finality"for the purpose of collateral estoppel.17 In the
absence of an appealable decision, the test is whether the issue
has been "fully litigated."18 In this case, the Swanson claims
were tried before Judge Hodges between November 21 and December
5, 1989. Judge Hodges filed a 74-page memorandum decision and
his findings concerning the nature of Borg-Warner's conduct were
necessary and essential to that decision. While the parties were
disputing the wording of the final judgment order, they agreed to
settle the case. Judge Hodges specifically declined to withdraw
the memorandum decision after settlement. It is hard to imagine
any case more "fully litigated"in the absence of a final
judgment. Thus Borg-Warner is precluded from
relitigating the nature of its conduct (i.e., that its conduct
was "outrageous" and in "reckless disregard of the rights of
others"). However, Borg-Warner is not bound by the trial court's
finding that it was more than 50% at fault. The issue of
relative fault between Borg-Warner and the third-party defendants
was not properly before the trial court in the Swanson trial.
See Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494
(Alaska 1986) (to warrant collateral estoppel, an issue must have
been actually litigated and determined, and the determination
must have been essential to the court's decision); Shanley v.
Callanan Indus., Inc., 429 N.E.2d 104, 106 (N.Y. 1981) (for
collateral estoppel to apply, it must be clear that a previous
determination squarely addressed and specifically decided the
issue; where nature of the decision makes it not clear whether
litigant was afforded his day in court, then collateral estoppel
is inappropriate).
III. CONCLUSION
For the above reasons, we hold that the trial court
erred in construing AS 09.16.010(c) to bar "wilful and wanton"
tortfeasors as well as "intentional"tortfeasors from seeking
contribution. Such a broad reading is inconsistent with the
principles of comparative negligence underlying the 1986 Tort
Reform Act (AS 09.17). We therefore remand this case to the
trial court for trial on Borg-Warner's contribution claims. In
this trial, Borg-Warner is not bound by the trial court's
calculation of its relative share of fault since this issue was
not properly before the court in the Swanson trial. However Borg-
Warner is bound by the trial court's findings concerning its
conduct toward Swanson because Borg-Warner had a full and fair
opportunity to litigate this issue.
AFFIRMED in part, and REMANDED in part for proceedings
consistent with this opinion.
_______________________________
1. Swanson's airplane was manufactured by Piper Aircraft
Corporation ("Piper"). The engine was manufactured by Avco
Corporation ("Avco"). The engine was equipped with a carburetor
manufactured by Marvel-Schebler, a division of Borg-Warner ("Borg-
Warner"). The carburetor float was manufactured by Rogers
Corporation ("Rogers"). At the time of the accident, the plane
was operating on auto-gas, pursuant to a Supplemental Type
Certificate issued by Petersen Aircraft ("Petersen").
2. Swanson presented evidence showing (1) that Borg-Warner
had become aware of problems with the Rogers composite float as
early as 1966; (2) that Borg-Warner had determined in the 1970s
that these problems resulted from a manufacturing defect which
caused the carburetor float to absorb fuel, become heavy and
sink; (3) that Borg-Warner concealed this information from the
FAA, Avco, Piper and the general public, and continued to assert
that the carburetor problems were caused by the use of auto-gas
in aircraft.
3. The trial court determined that the pilot and airplane
mechanic were not negligent.
4. Under the version of AS 09.17.080(d) in effect at the
time of the accident, a tortfeasor was jointly and severally
liable unless the tortfeasor was less than 50% at fault. The
trial court found that Borg-Warner was at least 50% at fault, but
did not allocate a specific percentage of fault to any of the
third-party defendants.
5. Apparently Petersen also moved for summary judgment.
However, neither his motion nor the court's subsequent ruling is
included in the record on appeal.
6. In 1986, AS 09.16.010(c) provided that "[t]here is no
right of contribution in favor of any tortfeasor who has
intentionally caused or contributed to the injury or wrongful
death."
7. Piper is not a party to this appeal because in July 1991
the United States Bankruptcy Court entered an automatic stay
order pursuant to 11 U.S.C. 362.
8. The interpretation of a statute is a question of law,
subject to this court's independent judgment on review. Norton
v. Alcoholic Beverage Control Bd., 695 P.2d 1090, 1092 (Alaska
1985).
9. Subsection (d) was changed effective March 5, 1989 to
provide:
The court shall enter judgment against
each party liable on the basis of several
liability in accordance with the party's
percentage of fault.
Because this cause of action arose in September 1986, this
amendment does not apply to this case.
10. Borg-Warner's reliance on our decision in Lake v.
Constr. Mach., Inc., 787 P.2d 1027 (Alaska 1990), is misplaced.
In Lake, an employee was injured when he fell from a manlift in
the course of his employment. The worker subsequently brought a
products liability action against the manufacturer, the
distributor and several intermediate vendors of the manlift. The
distributor joined the employer as a third-party defendant under
an express indemnity agreement. Before the trial court, the
distributor asserted that the finder of fact was required to
attribute negligence among all the parties allegedly responsible
for the worker's injury, including the employer, pursuant to the
rule of modified joint and several liability found in AS
09.17.080(d). The worker sought to strike this defense on the
grounds that the exclusive liability provision of the Workers'
Compensation Act precluded the trier of fact from considering the
negligence of the employer. Id. at 1028.
We held that the distributor could not reduce its total
liability to the worker in proportion to the percentage of any
negligence attributable to the third-party employer under the
exclusive liability provision, but that the distributor was
entitled to bring in evidence of the employer's negligence to
prove either that the employer was entirely at fault or that the
employer's fault was a superseding cause of the injury. Id. at
1029, 1031. We did not hold, as Borg-Warner suggests, that third-
party claims must be joined to the underlying suit to allow the
trier of fact to make a single allocation of fault.
11. AS 09.16 was repealed effective March 5, 1989. Because
this cause of action arose in September 1986, the circumstances
of the act's repeal is of no consequence here.
Although the parties do not argue this point, it seems
evident that much of the contribution act was superseded by the
enactment of the Tort Reform Act in 1986. Since the Tort Reform
Act became effective before the accident underlying this case, it
applies to this case. Whereas the contribution act allocated
damages among tortfeasors on a per capita basis, the Tort Reform
Act does so "in accordance with the respective percentages of
fault." AS 09.17.080(c). Since AS 09.17.080(c) governs this
case, it would seem to follow that it is the definition of fault
under the Tort Reform Act which presents the critical question in
this case rather than the meaning of "intentionally caused"under
the contribution act. However, as explained below, the result is
the same in either case.
12. Statutory construction begins with an analysis of the
language of the statute construed in view of its purpose.
Peninsula Marketing Ass'n v. State, 817 P.2d 917, 920 (Alaska
1991). The plainer the language of the statute, the more
convincing any contrary evidence must be. Id. at 922.
13. The equivalent provision to AS 09.16.010(c) in the
Uniform Act reads:
There is no right of contribution in favor of
any tortfeasor who has intentionally [wilfully or
wantonly] caused or contributed to the injury or
wrongful death.
Uniform Contribution Among Tortfeasors Act, 1(c), 12 U.L.A. 65
(1955).
14. The Supreme Court of California discussed the issue
whether comparative negligence should be applied where a
defendant was found to have acted in a wilful and wanton manner
in Li v. Yellow Cab Co. of Cal., 532 P.2d 1226, 1241 (Cal. 1975).
The Li court stated:
Finally there is the problem of the
treatment of willful misconduct under a
system of comparative negligence. . . . The
thought is that the difference between
willful and wanton misconduct and ordinary
negligence is one of kind rather than degree
in that the former involves conduct of an
entirely different order, and under this
conception it might well be urged that
comparative negligence concepts should have
no application when one of the parties has
been guilty of willful and wanton misconduct.
It has been persuasively argued, however,
that the loss of deterrent effect that would
occur upon application of comparative fault
concepts to willful and wanton misconduct as
well as ordinary negligence would be slight,
and that a comprehensive system of
comparative negligence should allow for the
apportionment of damages in all cases
involving misconduct which falls short of
being intentional.
Id. (footnote omitted). We find the latter logic more
persuasive.
15. The applicability of the doctrine of collateral estoppel
is a question of law subject to independent review. Rapoport v.
Tesoro Alaska Petroleum Co., 794 P.2d 949, 951 (Alaska 1990).
16. In so holding, this court adopts the position of the
Restatement (Second) of Judgments 13.
17. The United States Supreme Court vacated and remanded the
original panel action in Chemetron. The panel opinion on remand
was in turn ordered reheard en banc and thus vacated. After the
case was taken en banc, the parties settled and the litigation
was terminated. For this reason, the Fifth Circuit does not
regard Chemetron as binding precedent. Avondale Shipyards, Inc.
v. Insured Lloyd's, 786 F.2d 1265, 1273 n.11 (5th Cir. 1986).
The Fifth Circuit has also been reluctant to extend Chemetron
beyond its facts. Id. We find the Chemetron analysis compelling
and its application to this case proper.
18. Borg-Warner argues that applying collateral estoppel in
cases such as this will undermine Alaska's policy favoring
settlements. We disagree. Preventing duplicative litigation by
the application of collateral estoppel also serves the interests
of judicial economy. See Chemetron, 682 F.2d at 1190 (observing
that the reason for policy favoring settlements is that they
avoid litigation; this policy does not apply when the entire
trial had run its course and only the entry of adverse judgment
remains).
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