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State Leasing and Equip. v. Wichman (5/27/94), 874 P 2d 949
<![CDATA[
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD BENNER, individually, ) Supreme Court No. S-5023
RICHARD BENNER, d/b/a STATE )
LEASING AND EQUIPMENT, and ) Superior Court No.
STATE LEASING AND EQUIPMENT, ) 3AN-90-6302 CI
INC., an Alaska corporation, )
) O P I N I O N
Appellants, )
) [No. 4086 - May 27, 1994]
v. )
)
ALLEN C. WICHMAN, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley, Judge.
Appearances: William H. Ingaldson,
Maryanne Boreen, Bliss Riordan, Anchorage,
for Appellants. Clay A. Young, Delaney,
Wiles, Hayes, Reitman & Brubaker, Inc.,
Anchorage, for Appellees. Robert C. Bundy,
Bogle & Gates, Anchorage, for Amicus Curiae
Citizens Coalition for Tort Reform.
Before: Rabinowitz, Matthews and
Compton, Justices. [Moore, Chief Justice and
Burke, Justice, not participating.]
RABINOWITZ, Justice.
Statewide Petroleum (Statewide) is a general
contracting company specializing in gas station remodeling and
service station maintenance. In 1989, Statewide was awarded a
contract to remodel a Texaco station in Anchorage. This job
included excavating the station's underground fuel tanks,
segregating and examining the excavated dirt for contamination,
disposing of the old fuel tanks, installing four new tanks,
backfilling, and preparing the site for asphalt and concrete
surfacing.
As it had consistently done for at least the five
previous years, Statewide subcontracted the excavation work to
B-C Excavating (B-C). B-C was responsible for removing used fuel
tanks, excavating a tank hole, and assisting in the installation
of the new tanks. Allen Wichman operates backhoes for B-C.
Because it did not have any cranes or qualified crane operators,
B-C contracted with State Leasing & Equipment, Inc. (State
Leasing) to provide a crane and operator. Richard Benner, the
president of State Leasing, operated the crane during the course
of the Texaco job.
On July 25, 1989, Benner and Wichman were working in
tandem, installing new tanks. The job required close
coordination between laborers in the pits who were setting and
leveling the tanks, Wichman on the backhoe, and Benner on the
crane. Wichman would fill a bucket with pea gravel and Benner
would lift the bucket with the crane and dump it into the pit
where the laborers would pack gravel around the tanks to hold
them in place. Space was limited at the site, and all parties
were aware of the existence of power and telephone lines in the
work area. Benner relied on an on-site signaler for directions
to lift and set the tanks in the hole and to avoid the laborers
when swinging his load. However, Benner had no designated
spotter. Benner knew that he was required to have a spotter,1
though he did not discuss that requirement with anyone else at
the site.
Eventually, Wichman got out of his backhoe to inform
the dump truck operators where to unload more gravel, and Benner
set his bucket down away from the excavation pit and closer to
the powerlines. On returning to his backhoe, Wichman grabbed the
bucket attached to the crane and received a severe electrical
shock. He sustained a variety of injuries.
Wichman received workers' compensation benefits from
his employer, B-C. He subsequently filed a complaint against
Benner and State Leasing (collectively "Benner") alleging that
Benner's negligence caused Wichman's injuries. Benner responded
that Wichman's damages were caused, in whole or in part, by
Wichman's own acts or the acts of third parties not under the
defendant's control, since Wichman was working under and aware of
the energized overhead lines.
Benner thereafter moved for summary judgment, arguing
that Wichman's claims were barred by the exclusive remedy
provision of AS 23.30.055, based on his assertion that he and
Wichman were co-employees of B-C. Wichman opposed the motion,
and moved for partial summary judgment in his favor on the issue.
The superior court denied Benner's motion and granted Wichman's
motion, holding that Benner was an independent contractor.
Benner requested that the superior court instruct the
jury that it could apportion fault to Wichman, and to entities
who were not parties to the suit.2 The superior court instructed
the jury that Benner was negligent as a matter of law, and did
not require it to apportion fault among non-parties to the
litigation.3 The jury awarded Wichman $65,000. On appeal Benner
challenges the superior court's rulings that (1) Wichman's
recovery was not barred by the exclusive remedy provision in AS
23.30.055, (2) as a matter of law Wichman was not comparatively
negligent, and (3) fault would not be apportioned among non-
parties.4
I. THE SUPERIOR COURT DID NOT ERR IN DETERMINING THAT WICHMAN'S
CLAIMS WERE NOT BARRED BY THE EXCLUSIVE REMEDY PROVISION IN
AS 23.30.055
Workers' compensation is the exclusive remedy for
injuries caused by an employee to "any fellow employee." AS
23.30.055. The statute does not define "employee."5 Benner
argues that he and Wichman were co-employees of B-C, and
therefore a judgment against Benner in tort was improper. The
superior court concluded that Benner was a subcontractor, and not
an employee.
As both parties note, Alaska has adopted the "relative
nature of the work" test for determining when a person is
another's employee. See Searfus v. Northern Gas Co., 472 P.2d
966, 969 (Alaska 1970); see also 8 Alaska Administrative Code
45.890 (1991). The test has two parts: "first, the character of
the claimant's work or business; and second, the relationship of
the claimant's work or business to the purported employer's
business." Ostrem v. Alaska Workmen's Compensation Bd., 511 P.2d
1061, 1063 (Alaska 1973).
A. Character of the Business
The character of claimant's work or business has three
factors: "(a) the degree of skill involved; (b) the degree to
which it is a separate calling or business; and (c) the extent to
which it can be expected to carry its own accident burden." Id.
1. Degree of Skill Involved
Crane operation is a skill that requires
specialization. For example, union crane operators attend a
school at which they learn the skills they need. B-C hired
Benner, in part, because it had no qualified crane operators. At
the time of trial Benner had somewhere between twenty-two and
twenty-five years of experience operating cranes. Although
Benner has had no formal training in crane operation, he has done
considerable reading to supplement his first-hand experience.
2. Separate Business
This is one of the most important factors in
determining whether someone is an employee or an independent
contractor: "If the worker does not hold himself out to the
public as performing an independent business service, and
regularly devotes all or most of his independent time to the
particular employer, he is probably an employee, regardless of
other factors." 1 Arthur Larson, Larson's Workmen's Compensation
45.31 (desk ed. 1993).
Benner characterized himself as the owner/operator of
his own business rather than as a dispatch employee. He is the
president and sole shareholder of State Leasing, a business that
owns five cranes and provides services. State Leasing has two
business licenses and a variable number of employees, and was
incorporated twenty years ago. It is a separate business from
B-C.
3. Accident Burden
This factor also favors a determination that Benner was
an independent contractor.6 The best evidence that State Leasing
was able to carry its own accident burden is that it in fact did
so. At the time of the accident, it had $500,000 in liability
coverage. At various times during the life of the corporation,
State Leasing also had excess liability coverage. State Leasing
also carried worker's compensation insurance.
B. Relationship of Benner's Work to B-C's Business
This factor can also be subdivided:
The relationship of the claimant's work or
business to the purported employer's business
requires consideration of: (a) the extent to
which claimant's work is a regular part of
the employer's regular work; (b) whether
claimant's work is continuous or
intermittent; and (c) whether the duration is
sufficient to amount to the hiring of
continuing services as distinguished from
contracting for the completion of the
particular job.
Ostrem, 511 P.2d at 1063.
1. Relationship Between Benner's Work and
B-C's Work
According to Gordon Bartel, superintendent of B-C,
crane use was a "regular part of the job of removing and setting
new tanks." Although B-C and State Leasing worked together
frequently, State Leasing was not working exclusively for B-C in
general or at the time of this job. State Leasing's account
ledger for B-C indicates that B-C hired Benner a number of times
during 1989 and 1990, though the engagement does not appear to
have been continuous; in particular, the account reflects almost
no activity between December 1988 and July 1989. B-C usually
hired State Leasing when it needed a crane, but not always.7
To the best of Benner's recollection, State Leasing had
two other employees around the time of the B-C job, and they were
working on a different job, although one of them may have been
"on call"at the precise time of the B-C job.
2. Whether the Work Was Continuous or
Intermittent
Benner's work took eleven hours to complete. Although
an accurate statement of the duration of the larger B-C job
appears to be unavailable, the job lasted at least a number of
days and possibly several weeks. The work was intermittent.
3. Duration
Benner was hired for the completion of a particular
job. B-C had the option of terminating Benner at any time,
paying him only for the hours he had worked.8 He was, however,
hired frequently.
C. Summary
B-C and State Leasing were legally and functionally
distinct entities. The bulk of the factors in the "relative
nature of the work" test support a determination that State
Leasing was not B-C's employee. The superior court was correct
in ruling that AS 23.30.055 did not immunize Benner from
liability.
II. THE SUPERIOR COURT ERRED IN DIRECTING A VERDICT AS TO
WICHMAN'S COMPARATIVE NEGLIGENCE
After hearing argument from both parties on whether to
direct a verdict on Wichman's comparative negligence, the
superior court ruled that it would instruct the jury that Wichman
was not negligent. The superior court then instructed the jury
to consider only Benner's negligence. Benner now argues that the
superior court's ruling that Wichman was not comparatively
negligent, as a matter of law, was reversible error. On review
of a motion for a directed verdict, we do not weigh conflicting
evidence or judge the credibility of the witnesses. Rather, we
determine whether the evidence, when viewed in the light most
favorable to the non-moving party, is such that reasonable people
could not differ in their judgment. Petersen v. Mutual Life Ins.
Co., 803 P.2d 406, 410 (Alaska 1990).
Benner admitted at trial that when the accident
occurred he was knowingly operating his crane in violation of two
statutory provisions. His crane came within ten feet of a power
line,9 and he did not have a safety spotter. In support of his
contention that Wichman was comparatively negligent, Benner
advanced three theories before the superior court.
First, Benner argued that Wichman "was the one in
charge," and had supervisory responsibility. Wichman was
"negligent in his direction and control of the work site as
basically the foreman." Second, he argued, there was an informal
system of mutual reliance at the site, in which all involved were
responsible for avoiding accidents. Benner's third theory of
comparative negligence was that Wichman acted negligently when he
grabbed for the bucket unconsciously, given that there were power
lines around. As Wichman correctly notes, this third theory
appears to have been abandoned on appeal.
We find Benner's first theory unpersuasive. Although
Wichman was an experienced equipment operator, his experience was
primarily with backhoes. Wichman's main responsibility on the
Texaco job was to operate the backhoe and scoop gravel.
Wichman did have some supervisory responsibility at the
site, but that responsibility was limited to the gravel trucks.10
Despite Benner's assertion before the superior court that Wichman
was "basically the foreman,"the undisputed testimony established
that Wichman was not designated as the foreperson, that he did
not de facto perform that role, and that there were other
individuals at the site who had and exercised supervisory
authority over the whole project.11
The second theory has greater merit. There was
testimony that although workers at the site were performing
different tasks, the tasks were interdependent, and the workers
relied on each other to a large extent. Workers at the site were
aware of power lines. Wichman specifically was aware of them and
concerned about them. Benner testified that he could not see
from inside the crane how close the crane was to the power lines.
He testified further that he relied on the others with whom he
worked to warn him if he strayed too close to the lines, and that
there was an understanding to that effect. He testified that he
specifically relied on Wichman, though he admitted there was no
explicit request or agreement, and subsequently characterized his
belief that Wichman would monitor the crane's position as "maybe
an assumption." Benner himself took no steps to ensure that the
crane stayed away from the power line. A jury might find that
his reliance was unreasonable,12 but it is difficult to say as a
matter of law that the workers did not assume some responsibility
for assisting each other in maintaining safety at the site.13
Another theory of Wichman's duty is implicit in
Benner's brief, and is essentially a variant on the second
theory. Whereas the second theory suggests that Wichman was
negligent for not warning Benner that the crane was moving too
close to the power line (or for unthinkingly reaching for the
bucket), this theory argues that Wichman caused the crane to move
closer to the line.
Drawing all inferences in Benner's favor, we conclude
that reasonable jurors could differ as to whether Wichman was
comparatively negligent. Benner and Wichman initially discussed
the location of the crane, and Wichman rejected the first
location Benner proposed, which was farther away from the line
than the location they ultimately agreed upon. The crane started
out 18-20 feet from the power lines. It moved two feet closer
early on at Leonard's request.14 Benner also testified that he
followed Wichman's bucket, which Wichman progressively moved
closer to the line, and Benner assumed Wichman was monitoring the
safety of the situation. We hold that the superior court erred
in granting a directed verdict on Wichman's comparative
negligence.
III. THE SUPERIOR COURT DID NOT ERR IN REFUSING TO ALLOW THE JURY
TO CONSIDER THE FAULT OF NON-LITIGANTS
Benner argues that the superior court should have given
his proposed instruction allowing the jury to apportion liability
among anyone responsible, including those not party to the
action. He bases this contention on the "Tort Reform Ballot
Initiative" (initiative) approved by Alaskan voters on November
8, 1988. The initiative amended AS 09.17.080(d) to read, "[T]he
court shall enter judgment against each party liable on the basis
of several liability in accordance with that party's percentage
of fault."15 The initiative also repealed AS 09.16.010, which
provided for a right to contribution among tortfeasors.
According to Benner, the superior court should have allowed the
jury to reduce his percentage of fault by the percentage of fault
attributable to Statewide and B-C, which are not parties to this
action. While acknowledging that he could have joined them and
chose not to, Benner maintains that under the statutory scheme
joinder is not necessary.
As to B-C, the premise of this argument is wrong
because "as a result of the exclusive liability provision (of the
workers' compensation law, AS 23.30.055) an employer may be
joined as a third-party defendant only when another party asserts
an express indemnity claim against it." Lake v. Construction
Machinery, Inc., 787 P.2d 1027, 1030 (Alaska 1990). Benner does
not purport to have a claim for contractual indemnity against B-C
and therefore could not have joined B-C.
As to Statewide, resolution of this issue turns on the
interpretation of "party,"within the meaning of AS 09.17.080(d).
As another court noted when interpreting a similar statute,16 we
may construe the term "party"to mean: (1) persons involved in
an accident; (2) defendants in a lawsuit; or (3) all litigants in
a lawsuit. Fabre v. Marin, 623 So. 2d 1182, 1184 (Fla. 1993).
After the initiative became effective, one superior court
observed that "since contribution no longer exists and since the
Supreme Court has rejected equitable indemnity, the defendants
can not bring in persons who share in the responsibility for the
injury." Owens v. Robbins, No. 1SI-90-354 Ci., at 2-3 (Alaska
Super., Sept. 27, 1991). Therefore, according to Owens, if
defendants cannot bring in other tortfeasors and the fault of
these non-parties to the action cannot be considered, a "deep
pocket" defendant could be liable for 100% of the damages, no
matter how small its percentage of fault. Id.
On the equitable indemnity issue, we disagree with
Owens, and agree with the contrary holding in Dunaway v. The
Alaska Village, Inc., No. 3AN-90-3526 Ci. (Alaska Super., July
25, 1991), and Robinson v. U-Haul Co., 785 F. Supp. 1378, 1380-81
(D. Alaska 1992). We had rejected equitable indemnity in Vertecs
v. Reichhold Chemicals, Inc., 661 P.2d 619 (Alaska 1983). Our
holding in Vertecs, however, was that equitable indemnity was
undesirable given the availability of contribution. See id. at
625-26. Now that the voters have eliminated contribution through
the initiative, equity requires that defendants have an avenue
for bringing in others who may be liable to the plaintiff.
A recent United States District Court opinion on this
question read "parties"to include all persons whose negligence
contributed to the plaintiff's injuries. Carriere v. Cominco
Alaska, Inc., 823 F. Supp. 680, 687 (D. Alaska 1993). Whereas
Owens relied on our past rejection of equitable indemnity,
Carriere considered and rejected the prospect of our revising our
position on equitable indemnity in light of the initiative.
Carriere assumed that our position on equitable indemnity was
unlikely to change, because it concluded that equitable indemnity
was incompatible with the elimination of equitable contribution:
[Allowing equitable indemnity as a means
of joining defendants] presumes that the
Alaska Supreme Court would in substance veto
the 1987 initiative. It supposes that the
court can construct an implied cause of
action for indemnity even though the voters
had eliminated a tortfeasor's ability to hold
another tortfeasor responsible through the
repeal of the statutory provision for
contribution.
Id. at 688.
We believe that Carriere overstates the initiative's
scope. The initiative did away with one category of claims--
contribution. It did not purport to abolish all claims between
defendants and potential third-party defendants. For example,
despite our rejection of equitable indemnity in Vertecs, we
certainly did not reject contractual indemnity. Nor does the
initiative prevent courts from vindicating duties that non-
litigants owe plaintiffs by authorizing joinder of those non-
litigants.17 In the absence of contribution, we hold that
equitable apportionment is available as a means of bringing other
tortfeasors into the action.
The Florida Supreme Court interpreted its comparative
fault statute differently:
By its clear terms, judgment should be
entered against each party liable on the
basis of that party's fault. . . . Clearly,
the only means of determining a party's
percentage of fault is to compare that
party's percentage to all of the other
entities who contributed to the accident,
regardless of whether they have been or could
have been joined as defendants.
Even if it could be said that the
statute is ambiguous, we believe that the
legislature intended that damages be
apportioned among all participants to the
accident. . . . Not only would [a contrary]
result contradict the specific statutory
language . . . but also it defies common
sense . . . .
Fabre, 623 So. 2d at 1185-86. The court therefore upheld the
superior court's holding that the fault of an entity that was a
party to the accident but not the action should be considered in
computing the defendant's fault. Id. at 1184, 1187.
Were we considering only AS 09.17.080(d), we might
agree with Fabre. However, the statute in Fabre differs from AS
09.17.080 in that the Florida statute does not define the term
"party." Id. at 1184. Whenever possible, we construe each part
or section of a statute with every other part or section, to
produce a harmonious whole. Forest v. Safeway Stores, Inc., 830
P.2d 778, 781 (Alaska 1992). It is a general principle of
statutory construction that "the same words used twice in the
same act have the same meaning." 2A Norman J. Singer,
Sutherland's Statutes and Statutory Construction 46.06 (5th ed.
1992); accord Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723,
725 (9th Cir. 1978). "Where the meaning of a word is unclear in
one part of a statute but clear in another part, the clear
meaning can be imparted to the unclear usage on the assumption
that it means the same thing throughout the statute." 2A Singer,
supra, 47.16; see also O'Callaghan v. State, 826 P.2d 1132,
1134 (Alaska), cert. denied, ____ U.S. ____, 1135 S. Ct. 176
(1992) (uniform usage of term in statute creates a strong
presumption that it has the same meaning where ambiguous).
In AS 09.17.080(a) "party"is defined as a "party to
the action, including third-party defendants and persons who have
been released under AS 09.16.040."18 Furthermore, under AS
09.17.080(a)(2) "the percentage of the total fault of all of the
parties to each claim [] is allocated to each claimant,
defendant, third-party defendant, and person who has been
released from liability under AS 09.16.040."19
Based upon the above canons of construction, we
interpret "party"as used in AS 09.17.080(d) in the same way. We
hold that "party"for purposes of AS 09.17.080(d) means parties
to an action, including third-party defendants and settling
parties, and that the superior court did not err in refusing to
allow the jury to consider the negligence of Statewide and B-C,
since they were not parties within this definition.
Benner also raises equal protection and due process
objections to the superior court's ruling. The equal protection
argument was not raised below, and is therefore waived. See
Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343 (Alaska
1982). The due process argument assumes a defendant cannot bring
in other potentially liable parties. This, for reasons stated
above, is a false assumption.
IV. CONCLUSION
The judgment of the superior court is AFFIRMED in part,
REVERSED in part, and REMANDED for proceedings consistent with
this opinion.
_______________________________
1 The Alaska Construction Code in effect at the time of
the accident required that a crane have a safety spotter when
working near energized electrical distribution and transmission
lines. AAC 05.140(a)(1)(O), (a)(2)(D)-(a)(2)(G) (1990).
Although Benner points out that Wichman knew that crane
operators were prohibited from operating within ten feet of power
lines, he does not allege that Wichman was aware of the spotter
requirement.
2 Benner's proposed Jury Instruction No. 21 read:
Under Alaska law, a party is only
responsible for the portion of damages
equaled [sic] to that party's percentage of
fault.
The defendants claim that the
plaintiff's harm resulted, in whole or in
part, from the plaintiff's own negligence
and/or the negligence of others, not parties
to this litigation such as BC Excavating and
Statewide Petroleum.
In order to assess fault to the
plaintiff and/or others, you must decide that
it is more likely true than not true:
1. that the plaintiff and/or
others were negligent, and
2. that such negligence was a
legal cause of plaintiff's harm.
3 The superior court told the jury:
You are instructed that as a matter
of law the defendants, Richard Benner and
State Leasing & Equipment, Incorporated, were
negligent and that their negligence was a
legal cause of at least some of the
plaintiff's damages. Therefore, the only
issue remaining for you to decide is the
amount of plaintiff's damages that were
legally caused by defendants' negligence in
accordance with the rest of these
instructions.
4 Although Benner's statement of points on appeal and his
brief's statement of issues presented on cross-appeal allege that
the superior court erred in ruling that Benner was negligent as a
matter of law, his brief does not dispute his own negligence.
His reply brief, in fact, states that "the fact of [Benner's]
negligence is not the point." Because of this, and because
Benner admitted his own negligence at trial, we will not disturb
that ruling.
5 See AS 23.30.265(12) ("'employee' means an employee
employed by an employer as defined in (13) of this section");
23.30.265(13) ("'employer' means . . . a person employing one or
more persons in connection with a business or industry coming
within the scope of this chapter and carried on in this state").
6 While acknowledging that this factor is on Wichman's
side, Benner attempts to discount it by arguing that making this
factor dispositive would encourage general contractors to require
self-insurance by those they hire. We find this argument
unpersuasive. First, we are not treating the accident-burden
factor as dispositive, only significant. Second, Benner's
suggestion that we should not consider it at all flatly
contradicts settled case law. Third, Benner has not demonstrated
that greater self-insurance by subcontractors would be
undesirable.
7 Robert M. Haines, the owner of B-C, testified that he
hired other companies "when Dick [Benner] wasn't available or
something." This statement first shows that B-C did not always
hire State Leasing. Haines's statement next shows that State
Leasing was sometimes unavailable to B-C, indicating that State
Leasing did not owe exclusive allegiance to B-C.
8 Wichman's brief states that hiring a crane
subcontractor "was not a feature on every job." Nothing on the
pages cited indicates how frequently B-C needed cranes on its
jobs, or what percentage of its jobs involved gas tank removal.
9 Alaska Statute 18.60.670 reads:
A person individually or through an
agent or employee may not
(1) place any type of tool,
equipment, machinery, or material that is
capable of lateral, vertical, or swinging
motion, within 10 feet of a high voltage
overhead electrical line or conductor;
(2) store, operate, erect,
maintain, move, or transport tools,
machinery, equipment, supplies, materials,
apparatus, buildings, or other structures
within 10 feet of a high voltage overhead
electrical line or conductor.
Violations of this provision may be reckless or knowing. Cole v.
State, 828 P.2d 175, 178-79 (Alaska App. 1992). We interpreted
this provision most recently in Homer Electric Ass'n v. Towsley,
841 P.2d 1042, 1044-47 (Alaska 1992), where we held that moving a
crane to a position in which a part of it could come within ten
feet of a power line does not constitute a violation unless the
equipment in fact comes within that range.
10 One worker testified that Wichman was "running the job
there,"but, in context, this testimony appears to refer only to
the gravel transport aspect of the operation.
11 Gordon Leonard, the owner of Statewide, claimed that he
was responsible for overseeing safety at the site when he was
present. When he was not present, Robert Haines, the owner of B-
C, would be responsible for safety, or Haines's foreperson if
neither Leonard nor Haines was present. Leonard was present at
the site the day of the accident.
12 Many facts might lead a jury to question the
reasonableness of Benner's reliance on Wichman. Wichman had
never worked with a crane in this kind of operation before. He
had never worked as a crane spotter, nor had he ever operated a
crane. Moreover, Leonard was giving Benner visual directions
indicating where to drop the bucket's load. Benner testified
that when other workers tried to direct him, he would indicate
visually that Leonard alone should direct. The only testimony
that explicitly discussed the reasonableness of Benner's reliance
on Wichman came from Richard Kurkowski, an assistant chief for
the Alaska Department of Labor, who stated that it is
unreasonable for a crane operator to rely on a person who is
unfamiliar with crane signals, and with whom the crane operator
has no explicit agreement, for spotting.
13 There was also testimony that Benner was experienced,
and that job supervisors therefore did not watch him closely to
ensure he was performing his job safely.
14 This was so that the hole would not cave in; Benner
believed the move to be sensible.
15 Alaska Statute 09.17.080, as amended by the initiative,
states:
(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 09.16.040,
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
09.16.040.
(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 09.16.040, 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
several liability in accordance with that
party's percentage of fault.
16 At issue in that case was Florida's comparative fault
law, which states:
Apportionment of damages.--In cases
to which this section applies, the court
shall enter judgment against each party
liable on the basis of such party's
percentage of fault and not on the basis of
the doctrine of joint and several liability
. . . .
Fla. Stat. Ann. 768.81(3) (West 1993) (emphasis added).
17 Because what is involved in cases like this one is not
a third party's duty to pay the defendant, but the third party's
duty to pay the plaintiff, we prefer the term "equitable
apportionment." See Robinson, 785 F. Supp. at 1381 n.4. Also
for this reason, Alaska Civil Rule 14(a) may be an inadequate
basis for defendants to bring in additional potentially liable
parties. Defendants may be able to rely on Alaska Civil Rule
13(h), which authorizes joinder of additional parties for cross-
claims, and Alaska Civil Rule 20(a).
Civil Rule 20(a) states in part:
All persons may be joined in one action
as defendants if there is asserted against
them jointly, severally, or in the
alternative any right to relief in respect of
or arising out of the same transaction,
occurrence, or series of transactions or
occurrences and if any questions of law or
fact common to all of them will arise in the
action.
This situation is, of course, somewhat unusual in that
a defendant would be asserting that the plaintiff has a right to
relief against the third-party defendant. Undeniably, the new
statutory scheme is problematic, given our current civil rules.
We are therefore requesting our Standing Advisory Committee on
Civil Rules to consider this problem.
18 Under former AS 09.16.040, a release or covenant not to
sue or enforce judgments does not
discharge any of the other tortfeasors
from liability . . . but it reduces the claim
against the others to the extent of any
amount stipulated by the release or the
covenant, or in the amount of the
consideration paid for it, whichever is the
greater . . . .
Like the rest of former chapter 16, which governed
contribution, section .040 was repealed by the initiative.
Repealed statutes relating to the same subject matter may be in
pari materia, see 2A Singer, supra, 51.04, and therefore may be
construed together. Cf. Carter v. Brodrick, 644 P.2d 850, 855
(Alaska 1982) (in pari materia statutes may be construed
together).
In this case, AS 09.16.040 is integral to the
definition of "party"in AS 09.17.080(a). Although AS 09.16.040
has been repealed, we are not prevented from examining it in
interpreting AS 09.17.080(a), where nothing in amended AS
09.17.080 suggests an intent to alter the provision's
applicability to settling parties.
Furthermore, statutes should be given a "reasonable and
practical interpretation in accordance with common sense."
O'Callaghan, 826 P.2d at 1136. Consequently, the definition of
"party" in AS 09.17.080(a) encompasses settling and released
parties. Any other interpretation would be contrary to reason
and good sense.
19 Alaska Statute 09.17.080 is substantially similar to
the Uniform Comparative Fault Act, except that the initiative
amended it to provide for several, rather than joint and several
liability. The Comment to the Uniform Comparative Fault Act
explicitly addresses this situation:
The limitation to parties to the
action means ignoring other persons who may
have been at fault with regard to the
particular injury but who have not been
joined as parties. This is a deliberate
decision. It cannot be told with certainty
whether that person was actually at fault or
what amount of fault should be attributed to
him, or whether he will ever be sued, or
whether the statute of limitations will run
on him, etc. An attempt to settle these
matters in a suit to which he is not a party
would not be binding on him. Both plaintiff
and defendants will have significant
incentive for joining available defendants
who may be liable. The more parties joined
whose fault contributed to the injury, the
smaller the percentage of fault allocated to
each of the other parties, whether plaintiff
or defendant.
Unif. Comparative Fault Act 2 cmt., 12 U.L.A. 50 (Supp. 1993)
(emphasis added). This reinforces the plain language of AS
09.17.080, and supports our rejection of Benner's broader
definition of "party."
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