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McGilvary v. Hansen (6/30/95), 897 P 2d 605
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Notice: This opinion is subject to 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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
KRISTEN McGILVARY; ROYAL )
HIGHWAY TOURS, INC., an ) Supreme Court No. S-6429
Alaska corporation; TOUR )
ALASKA, INC., a Washington ) Superior Court No.
Corporation, dba PRINCESS ) 4FA-93-2316 CI
TOURS, )
) O P I N I O N
Petitioners, )
) [No. 4227 - June 30, 1995]
v. )
)
BETTY HANSEN and CLARENCE )
HANSEN, )
)
Respondents. )
______________________________)
Petition for Review from the Superior
Court of the State of Alaska, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: Marcus R. Clapp and David
F. Leonard, Law Offices of Marcus R. Clapp,
Fairbanks, for Petitioners. Gary Foster,
Call Barrett & Burbank, for Respondents.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
EASTAUGH, Justice.
The trial court struck petitioners' answer to the
Hansens' personal injury complaint and imposed liability as a
discovery sanction because petitioners inaccurately answered an
interrogatory and untimely provided the names of the passengers
riding in petitioners' tour bus when Betty Hansen was injured.
We vacate the sanction on review.
I. FACTS AND PROCEEDINGS
Betty and Clarence Hansen were passengers on a tour bus
driven by Kristen McGilvary and operated by Princess Tours in
June 1993. The bus was on a Fairbanks city tour. It struck a
frost heave in the road, injuring Betty Hansen. She and Clarence
sued McGilvary, Royal Highway Tours, Inc., Tour Alaska, Inc., and
Princess Tours, (collectively "Princess") in September 1993.
In a written interrogatory, the Hansens asked Princess
to give the names, addresses and telephone numbers of the
passengers on the bus. Princess' sworn December 1, 1993
interrogatory answer asserted Princess "does not have a specific
detailed passenger list with addresses." The answer stated that
Princess had compiled a list of passengers who travelled the city
tour the day of the accident, and that the list included all
passengers, not just the passengers on the bus on which the
Hansens were travelling. "There is no record of which passengers
were on an individual coach." The list of all passengers was
attached to the interrogatory answer. The list contained 164
names.
Shortly before Princess served its interrogatory
answer, the court entered a pretrial order which set trial for
the week of June 20, 1994, set an April 15 deadline for exchange
of witness lists and set a May 20 deadline for close of
discovery.
On February 2, 1994, the Hansens' attorney took the
depositions of McGilvary and Julie Verd, Princess' manager of
fleet safety and training. They testified that a "trip envelope"
was kept for each bus tour, and that the envelope contained
vouchers for the passengers on each bus tour. The vouchers
revealed the passengers' names. After Verd's deposition, Verd
returned to her office and found the trip envelope for the
Hansens' bus tour. The envelope and the vouchers were served on
Hansens' counsel on February 9.
The Hansens had previously moved for sanctions as a
result of other alleged Princess discovery violations. Following
the McGilvary and Verd depositions, the Hansens supplemented
their existing sanctions motion with an argument that Princess
had willfully failed to identify the passengers on the Hansens'
bus and had consequently misrepresented the facts when it stated
in its December 1 interrogatory answer "there is no record of
which passengers were on an individual coach." The Hansens
argued the response was "willfully inaccurate and incomplete."
They argued that the discovery violation justified imposition of
liability as a sanction. In response, Princess offered the
affidavit of Kelly Boudreau.1
Witness lists were exchanged April 15 and discovery
closed May 20, per the pretrial order. On June 9, eleven days
before trial was to begin, the trial court considered the
sanctions motion and stated:
With respect to the motion to strike or
to indicate there's liability on the part of
the Defense for the injury to the Plaintiffs
in the case, the . . . [Court is] persuaded
based on the pleadings that it was a willful
failure to provide the names of the bus
passengers, and therefore the Court strikes
both the answer as well as the issue
concerning any comparative negligence.
Princess filed this petition for review of the order
striking the answer. Alaska R. App. P. 402(a). The trial was
continued pending review.
II. IMMEDIATE REVIEW
We grant review of the sanction order under Alaska
Rule of Appellate Procedure 402(b)(1) and (3), because
postponement of review until a final judgment is entered may
needlessly delay resolution of this case and because the sanction
order departs from the accepted and usual course of proceedings
with respect to discovery violations.
III. DISCUSSION
The standards for imposing the sanction of liability
for a discovery violation have been developed in a series of
cases, and are "well settled"in Alaska.2 Underwriters at
Lloyd's, London, 846 P.2d 118, 119 (Alaska 1993). We recently
recognized that our cases "clearly and narrowly define the
permissible range within which a trial court may impose
litigation ending sanctions . . . ." Hughes v. Bobich, 875 P.2d
749, 752 (Alaska 1994).
In Underwriters we wrote:
The law on Rule 37 sanctions in
Alaska is well settled. Issue establishment
under Rule 37(b), that is, conclusively
resolving an issue against a party who does
not comply with discovery orders, is an
"extreme sanction which should be used only
in extreme cases." Otis Elevator Co. v.
Garber, 820 P.2d 1072, 1074 (Alaska 1991).
For this reason, the trial court must find
that the non-complying party "willfully"
violated the discovery order in question.
Alaska Trams Corp. v. Alaska Elec. Light &
Power, 743 P.2d 350, 354 (Alaska 1987), cert.
denied, 485 U.S. 905 (1988). "Willfulness"
is defined as the "conscious intent to impede
discovery, and not mere delay, inability or
good faith resistance." Hawes Firearms Co.
v. Edwards, 634 P.2d 377, 378 (Alaska 1981).
We have held that before a court may impose
litigation ending sanctions for discovery
violations the record must clearly indicate a
reasonable exploration of possible and
meaningful alternatives to dismissal.
Sandstrom & Sons, Inc. v. State, 843 P.2d 645
(Alaska 1992). Finally, the sanction must be
"sufficiently related" to the discovery
violation. Honda Motor Co. v. Salzman, 751
P.2d 489, 493 (Alaska 1988). We must
determine "if the established issue is an
'element of the dispute that cannot be
determined on the merits without disclosure
of the evidence the court has ordered the
party to produce.'"Id. (quoting Hazen v.
Municipality of Anchorage, 718 P.2d 456, 460
(Alaska 1986)).
Underwriters, 846 P.2d at 119-20.
The sanctions imposed in this case were entered in
error and consequently must be vacated.
It was an abuse of discretion to impose the sanction of
liability because the trial court failed to consider any lesser
sanction or remedy. Alternatives would have included an
opportunity to amend the witness list and take additional
depositions, a continuance, and an award of actual or partial
costs resulting from the discovery violation.
It does not appear that the discovery error, once
corrected, gravely prejudiced the Hansens. The requested
information, although produced approximately two months late, was
nonetheless revealed before witness lists were exchanged and
discovery closed. Especially given the availability of other
lesser sanctions and remedies, the liability sanction was
disproportionately severe in comparison with the potential
prejudice to the Hansens. Further, notwithstanding disputes
about Princess' good faith in responding to this and other
discovery, the record before us and the trial court's comments
when imposing the sanction do not reveal such egregious conduct
by Princess that the liability sanction could be considered
appropriate punishment.
Given these reasons for vacating the sanction, it is
not necessary to consider other arguments advanced by Princess
for setting aside the sanction. It is consequently not necessary
to decide whether the trial court clearly erred in finding
"willfulness."
IV. CONCLUSION
We VACATE the sanction order which struck defendants'
answer and REMAND for further proceedings.
_______________________________
1 Kelly Boudreau was a claims administrator in the
Seattle office of Princess Tours. He explained in his affidavit
that he had provided the responses to the Hansens'
interrogatories and requests for production and that his
responses were made to the best of his knowledge and available
information and were based on his own knowledge as well as
information he received through discussion with other individuals
in Princess' Seattle and Fairbanks locations. He explained that
he was not always intimately familiar with the specific materials
that might be available in division offices and relied on others
to provide information. He had not been aware that passenger
vouchers had been retained from that bus trip or were kept in any
trip envelope, although he had made an effort to obtain
assistance from people in the Seattle and Fairbanks offices in
order to respond to the Hansens' request for names, addresses and
telephone numbers of all passengers on the Hansens' bus trip. He
stated that he had "not consciously or unconsciously attempted to
hide any information which has been requested by the plaintiffs.
I have made an honest attempt to locate all information that
might relate to the discovery requests and provide it as soon as
practicable."
2 We apply our independent judgment to decide the legal
issue of whether Civil Rule 37(b)(2) applies to a given fact
situation. Assuming the trial court has authority to impose the
sanction of liability-establishment in a particular case, we
review for abuse of discretion the imposition of that sanction.
Underwriters at Lloyd's, London v. The Narrows, 846 P.2d 118, 119
(Alaska 1993); Oaks v. Rojcewicz, 409 P.2d 839 (Alaska 1966). We
have noted that litigation-ending sanctions are disfavored and
that the trial court's discretion to impose such sanctions is
narrowly limited to extreme situations. Hughes v. Bobich, 875
P.2d 749, 752 (Alaska 1994). We apply a clearly erroneous
standard in reviewing the trial court's findings of fact. Alaska
R. Civ. P. 52(a).
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