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Christensen v. NCH Corporation (4/17/98), 956 P 2d 468
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, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STEVEN C. CHRISTENSEN, )
SHANNON L. CHRISTENSEN, ) Supreme Court No. S-7704
RONALD M.G. (MICHAEL) )
CHRISTENSEN, Minor Child, )
and DANIEL S. CHRISTENSEN, ) Superior Court No.
Minor Child, ) 4FA-94-3178 CI
)
Appellants, )
)
v. )
)
NCH CORPORATION, CIGNA ) O P I N I O N
INSURANCE COMPANY, TIMOTHY A. )
McKEEVER, and FAULKNER, )
BANFIELD, DOOGAN & HOLMES, )
)
Appellees. ) [No. 4969 - April 17, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Steven C. Christensen and Shannon
L. Christensen, pro se, Fairbanks. Mark A. Sandberg, Sandberg,
Wuestenfeld & Corey, Anchorage, for Appellees NCH Corporation and
CIGNA Insurance Company. Craig F. Stowers, Clapp, Peterson &
Stowers, Anchorage, for Appellees Timothy A. McKeever and Faulkner,
Banfield, Doogan & Holmes.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
Steven C. Christensen, an injured worker, sued his
employer, his employer's workers' compensation insurer, and their
attorney, alleging a conspiracy to interfere with his medical
treatment. The superior court entered summary judgment against
Christensen. Christensen appeals, contending that the defendants'
discovery violations stymied his efforts to document their
conspiracy and that he raised genuine issues of material fact
precluding the entry of summary judgment. Because Christensen's
arguments lack merit, we affirm.
I. FACTS AND PROCEEDINGS
In October 1993 Christensen injured his back while
working in Fairbanks as a sales representative for NCH Corporation
(NCH). He sought medical treatment and filed a workers'
compensation claim. The claim was handled by NCH's insurer, CIGNA
Insurance Company. CIGNA began paying Christensen temporary total
disability benefits.
In November, Christensen's chiropractor referred him to
Dr. William Reinbold, an orthopedic surgeon. Before Dr. Reinbold
saw Christensen, his office contacted CIGNA and was told that the
company would not pre-authorize payment for surgery. In early
December, Christensen scheduled an appointment with Dr. John
Godersky, a neurosurgeon. Prior to the appointment, CIGNA informed
the doctor that it would not pre-authorize surgery. Neither Dr.
Reinbold nor Dr. Godersky performed surgery on Christensen.
After learning of CIGNA's contacts with Drs. Reinbold and
Godersky, Christensen concluded that the company was interfering
with his treatment. Christensen wrote several letters to CIGNA
demanding that it cease interfering. Despite CIGNA's assurances
that its contacts with the doctors had been routine in nature,
[Fn. 1] Christensen continued to accuse CIGNA of wrongfully
interfering with his medical treatment.
In January 1994, CIGNA hired attorney Timothy A.
McKeever, a member of the firm Faulkner, Banfield, Doogan & Holmes
(collectively McKeever), to represent CIGNA and NCH with respect to
Christensen's claim. During the same month, NCH terminated
Christensen from his job due to his inability to return to work.
Christensen underwent an employer's medical examination
with Dr. Douglas Smith, an orthopedic surgeon, on March 3, 1994.
At about the same time, Christensen scheduled an appointment with
another orthopedic surgeon, Dr. Edwin Lindig. On March 9, McKeever
wrote Dr. Lindig, informing him of Christensen's prior evaluations
and enclosing Christensen's medical records. McKeever also
enclosed a medical release signed by Christensen and requested Dr.
Lindig to forward to McKeever a copy of the doctor's report. Dr.
Lindig did not perform surgery.
In April, CIGNA formally controverted Christensen's claim
that he needed surgery. A month later, after receiving Dr. Smith's
report, CIGNA controverted Christensen's right to further benefits.
The Workers' Compensation Board (Board) subsequently
ordered an independent medical examination (IME); the IME hearing
was scheduled for November 2, 1994. While the IME was pending,
Christensen made arrangements with yet another physician, Dr. Carl
Unsicker, to perform back surgery on October 20. Prior to the
scheduled surgery, Dr. Unsicker contacted CIGNA to obtain pre-
authorization. CIGNA, in turn, contacted McKeever, who asked the
Board to hold an emergency prehearing conference to determine if
Dr. Unsicker's surgery would preclude Christensen from
participating in the scheduled IME hearing.
Hearing officer Charles McLeod convened a conference on
October 17; Christensen declined to attend, saying that he would be
busy preparing for surgery. During the conference, McLeod
contacted Dr. Unsicker by telephone and asked whether having
surgery on October 20 would preclude Christensen from attending the
November 2 IME. Dr. Unsicker replied that it would, but said that
he had advised Christensen to postpone the surgery until after the
IME was completed. Shortly after this conference, both the IME and
the surgery were canceled.
The parties eventually settled the workers' compensation
case, with Christensen receiving approximately $28,700 and
reserving the right to pursue civil claims against CIGNA, NCH, and
McKeever.
Christensen filed a complaint in superior court against
NCH, CIGNA, and McKeever. [Fn. 2] The complaint alleged willful
interference with Christensen's medical care. Christensen later
amended the complaint to allege that CIGNA and NCH had conspired to
delay his medical treatment in order to enable NCH to terminate his
employment. The amended complaint also accused McKeever of helping
NCH and CIGNA cover up the conspiracy and of failing to "fulfill
his duties as an officer of the Court"by not insisting that his
clients end the conspiracy.
Two law firms entered appearances on behalf of the
defendants, one representing NCH and CIGNA, and the other
representing McKeever and McKeever's law firm. Christensen
requested production of various documents from both sets of
defendants; both withheld or redacted numerous requested documents,
relying chiefly on the work product doctrine and attorney-client
privilege.
Christensen moved to compel production of these
documents. On December 7, 1995, Superior Court Judge Jay Hodges
held a hearing on the motion to compel. At the conclusion of the
hearing, the judge ordered the defendants to submit lists of all
withheld documents within thirty days; Christensen was then to
review the document lists and move for in camera inspection of any
documents he thought discoverable.
In early January 1996 the defendants filed notices of
compliance with the December 7 order. McKeever's notice, however,
did not list each withheld document individually; instead, it
described categories of documents that McKeever withheld and stated
McKeever's basis for withholding the documents in each category.
McKeever's list included a category consisting of his
correspondence with various NCH and CIGNA personnel; the list also
included a category consisting of computer notes that a CIGNA claim
adjustor had made in Christensen's workers' compensation claim file
and that CIGNA had turned over to McKeever.
McKeever withheld the documents in both of these
categories based on the work product doctrine and attorney-client
privilege. [Fn. 3] With regard to his correspondence, McKeever
pointed out in his notice of compliance that, at the December 7
hearing, the court had said that "correspondence between attorney
and client is clearly privileged." With regard to the claim
adjustor's computer notes, McKeever explained that the original
notes included descriptions of the adjustor's conversations with
McKeever and others that fell within the work product doctrine or
attorney-client privilege. McKeever had redacted the notes to
eliminate privileged portions and had previously given Christensen
the redacted version. [Fn. 4] McKeever's notice of compliance
offered to submit the unedited version of the computer notes and
his correspondence with NCH and CIGNA personnel to the court for in
camera review within twenty-four hours if the court requested.
Christensen filed an objection to McKeever's notice of
compliance, complaining that its listing of documents was not
sufficiently specific to meet the requirements of the court's
December 7 order. [Fn. 5]
McKeever filed a response to Christensen's objection,
contending that his listing of withheld documents was "sufficiently
specific to alert [Christensen] and this court as to any problem
areas." McKeever repeated his offer to produce the disputed
documents to the court for in camera inspection. He made this
offer unconditionally as to all withheld documents. McKeever also
submitted an affidavit signed by his attorney, M. Christine Klein,
who attested to her "good faith belief that the Notice of
Compliance filed on behalf of Mr. McKeever . . . is in conformity
with this court's December 7 order"and that "[a]ll documents
withheld from [Christensen] have been withheld based on good faith
arguments that those documents are privileged or otherwise not
discoverable."
Christensen thereafter filed a "Motion to Impose
Sanctions, Establish Facts, and Demand for Default Judgment." In
this motion, Christensen renewed his claim that the superior
court's December 7 order had been violated, and he demanded
litigation-ending sanctions against all defendants for the
violation.
This discovery dispute was taken up at a hearing held by
the superior court on March 28, 1996. Christensen renewed his
complaint, stating that "to date we have not received any kind of
a list from Mr. McKeever of the documents that we requested; [we
received] broad categories, but no itemized list." The court,
however, declined to find a violation of its December 7 order.
Based on its review of relevant pleadings, the court found
McKeever's notice of compliance to be satisfactory. The court also
declined to require an in camera review of any of McKeever's
withheld documents except the adjustor's notes. Relying on the
affidavit of McKeever's attorney, Klein, the court found "that it
was not necessary for the court to review all those documents
without some further showing."
The court handled the adjustor's notes differently. In
response to Christensen's mention of the notes at the March 28
hearing, McKeever specifically offered to submit an unredacted copy
for the court's in camera review. The court agreed to the
proposal, indicating that it would review the notes and order their
production if appropriate. Pursuant to this arrangement, McKeever
later submitted the notes under seal.
On April 11, the superior court heard oral argument on
motions for summary judgment that the defendants had filed several
months earlier. At the outset of the hearing, the court informed
the parties that it had reviewed the unredacted adjustor's notes
and found that "the documents that were produced redacted, should
have no further production." After hearing argument on the summary
judgment motions, the court granted summary judgment against
Christensen, finding no evidence to substantiate Christensen's
claims of intentional interference with treatment, conspiracy, or
cover-up.
Christensen appeals, challenging the court's discovery
and summary judgment rulings.
II. DISCUSSION
A. Did the Superior Court Err in Finding that NCH, CIGNA,
and McKeever Complied with Discovery?
1. Standard of review
Rulings on discovery and on discovery sanctions are
generally reviewed for abuse of discretion. See Stone v.
International Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska
1996); In re Mendel, 897 P.2d 68, 73 n.7 (Alaska 1995). We will
find an abuse of discretion when we are left with a definite and
firm conviction after reviewing the whole record that the trial
court erred in its ruling. See Stone, 918 P.2d at 554.
2. Discussion
Christensen argues that he was "prevented from fully
prosecuting [his] case due to the impedance [sic] by Appellees and
their agents in the discovery process, despite the court's direct
orders to produce." He asserts that the trial court erred in
finding that the defendants complied with the court's December 7
discovery order and in failing to impose sanctions for their
failure to produce essential documents. These arguments are
without merit.
Christensen did not object to the notice of compliance
that was filed by NCH and CIGNA. Instead, he moved for production
of approximately fifty documents that the companies listed in their
notice. In response to Christensen's motion, NCH and CIGNA
produced these documents. Christensen relied extensively on them
in opposing the defendants' motions for summary judgment. At the
April 11 summary judgment hearing, Christensen said nothing to
suggest that he sought production of additional documents from NCH
and CIGNA; compliance was at issue only as to McKeever.
McKeever had filed a notice of compliance listing various
categories of documents that he declined to produce. Although
Christensen argued that McKeever's notice of compliance did not
comport with the court's December 7 discovery order, the court
found the notice satisfactory. Having examined McKeever's notice
of compliance, we agree with the trial court. The notice's
description of document categories, rather than individual
documents, contains sufficient detail to have given Christensen
reasonable notice of the nature of documents that McKeever was
withholding and his basis for withholding them. Christensen fails
to specify how he was prejudiced by the lack of a more detailed
description. The superior court did not abuse its discretion in
finding satisfactory compliance with its December 7 order. See
Stone, 918 P.2d at 554, 558.
Nor did the court abuse its discretion in refusing to
examine in camera any documents other than the adjustor's notes.
McKeever's notice of compliance and Klein's supporting affidavit
established the general nature of the documents that McKeever was
withholding, his basis for withholding them, and his good faith in
claiming that they were not subject to discovery. Christensen made
no showing that the notice of compliance and supporting affidavit
might be incorrect, incomplete, or misleading; he made no showing
that inspection in camera was likely to reveal evidence of crime,
fraud, or intentional misconduct; and he made no showing that an in
camera inspection was necessary to avoid prejudice.
On appeal, Christensen cites no authority to justify
requiring the court to conduct an in camera review of discovery
documents withheld by a party on grounds of privilege, even when,
as here, the assertion of privilege is facially valid, no specific
basis for challenging the privilege is established, and no specific
need for disclosure is shown. On the facts presented here, we
conclude that the superior court had no obligation to conduct a
more extensive in camera review.
We also conclude that Christensen has failed to show
error in the trial court's refusal to order disclosure of the
documents that it did examine in camera -- the adjustor's notes.
Upon examining the notes, the superior court concluded that
production of the unredacted version was not warranted. Our review
of the unedited notes convinces us that they fall within the
attorney-client privilege and work product doctrine; furthermore,
their disclosure would have been of no material value to
Christensen's case.
We find no abuse of discretion in the trial court's
discovery rulings.
B. Did the Superior Court Err in Granting Summary Judgment
in Favor of NCH, CIGNA, and McKeever?
1. Did the trial court record show the existence of a
genuine issue as to any material fact?
a. Standard of review
We review a grant of summary judgment de novo, applying
our independent judgment. See Reeves v. Alyeska Pipeline Serv.
Co., 926 P.2d 1130, 1134 (Alaska 1996); Wright v. Black, 856 P.2d
477, 479 (Alaska 1993). We take the facts presented in the light
most favorable to the nonmoving party and inquire "whether a
genuine issue of material fact exists and whether the moving party
is entitled to judgment as a matter of law." Shade v. Co & Anglo
Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995) (citing
Broderick v. King's Way Assembly of God Church, 808 P.2d 1211, 1215
(Alaska 1991)); see also Mount Juneau Enters., Inc. v. City and
Borough of Juneau, 923 P.2d 768, 772-73 (Alaska 1996). Mere
assertions of fact in pleadings and memoranda cannot raise genuine
issues of fact. See Lord v. Wilcox, 813 P.2d 656, 658 n.4 (Alaska
1991) (citing State, Dep't of Highways v. Green, 586 P.2d 595, 606
n.32 (Alaska 1978)). Nor can unverified pleadings be relied on.
See Jennings v. State, 566 P.2d 1304, 1309-10 (Alaska 1977).
The moving party has the "initial burden of proving,
through admissible evidence, the absence of genuine factual
disputes and its entitlement to judgment." Shade, 901 P.2d at 437.
Once the moving party "makes a prima facie showing of its
entitlement to judgment on established facts,"the burden shifts to
the nonmoving party to demonstrate a "genuine issue for trial."
Id. (citing Alaska R. Civ. P. 56(c),(e); Broderick, 808 P.2d at
1215).
b. Discussion
Ordinarily, a worker's exclusive remedy for injuries
suffered in the course of employment is a workers' compensation
claim. [Fn. 6] See State v. Purdy, 601 P.2d 258, 259 (Alaska
1979); see also Wright v. Action Vending Co., 544 P.2d 82, 86
(Alaska 1975) (holding AS 23.30.055 bars wife's loss of consortium
action against husband's employer); Taylor v. Southeast-Harrison W.
Corp., 694 P.2d 1160 (Alaska 1985) (finding the exclusive remedy of
the Workers' Compensation Act bars the action of an employee's
estate against employer).
Under the exclusive remedy rule, Christensen was not
entitled to pursue a tort claim against NCH unless he alleged
intentional harm. [Fn. 7] See Stafford v. Westchester Fire Ins.
Co. of N.Y., 526 P.2d 37, 43 (Alaska 1974), overruled on other
grounds by Cooper v. Argonaut Ins. Cos., 556 P.2d 525 (Alaska
1976). In this context, an intentional harm is a harm committed by
a person who acts with specific intent to cause an injury. See
Aetna Cas. & Sur. Co. v. Marion Equip. Co., 894 P.2d 664, 670-71
(Alaska 1995) (citing Borg-Warner Corp. v. Avco Corp., 850 P.2d
628, 633 (Alaska 1993)). Even when an employer is negligent or
willful in refusing to pay benefits that are legally due, the
wrongful failure to pay will not support a cause of action for tort
unless the employer's purpose is to injure the claimant. See
Stafford, 526 P.2d at 43. Christensen advanced three
principal theories of intentional tort: interference by NCH and
CIGNA with his medical treatment; a conspiracy by the two companies
to delay his medical treatment in order to facilitate his wrongful
discharge from employment; and McKeever's failure to end the
conspiracy and his attempt to conceal its existence by
participating in a cover-up of documents. Our review of the record
convinces us that the superior court correctly found no record
evidence to substantiate these theories.
The linchpin of Christensen's suit was his claim of
intentional interference with his medical treatment. Apart from
Christensen's conclusory assertions of interference, however,
nothing in the record supports this claim. Christensen did
establish that contacts occurred between defendants and
Christensen's physicians concerning pre-authorization of medical
treatment. Such contacts, however, are not forbidden. Cf. Langdon
v. Champion, 745 P.2d 1371, 1375 (Alaska 1987) (holding that in a
personal injury action, informal ex parte conferences between
defense counsel and a plaintiff's physician are permissible). [Fn.
8] Standing alone, they do not give rise to an inference of
intentional wrongdoing.
Moreover, the defendants presented deposition testimony,
affidavits, and other documents from the four surgeons they
allegedly influenced: Drs. Reinbold, Godersky, Lindig, and
Unsicker. The doctors unanimously refuted Christensen's claims of
interference.
Drs. Reinbold and Godersky denied any direct contacts
with the defendants concerning Christensen's treatment. Both also
denied that the defendants had any influence on their medical
opinions. And both indicated that, upon examining Christensen,
they simply concluded that he was not a candidate for surgery.
Drs. Lindig and Unsicker likewise denied any interference or
attempted interference with their medical evaluation of
Christensen.
Christensen suggests that McKeever's letter to Dr. Lindig
is evidence of intentional interference. But the letter contains
nothing to support Christensen's claim.
Christensen also points to a report by the Workers'
Compensation Board concerning the October 17, 1994, pre-IME
conference conducted by hearing officer McLeod. During this
conference, McLeod -- in McKeever's presence and in Christensen's
absence -- spoke by telephone with Dr. Unsicker concerning
Christensen's then-scheduled surgery. Prompted by a complaint from
Christensen, the Board later investigated this ex parte hearing and
found that McLeod's conduct created an appearance of partiality.
Christensen now claims that this finding supports an inference of
intentional interference and gives rise to a disputed factual issue
for trial.
Yet the Board's report finds no actual impropriety, only
an appearance of impropriety. Moreover, the report deals with
McLeod's conduct, not McKeever's. It contains nothing suggesting
impropriety on McKeever's part, let alone intentional impropriety.
In short, Christensen's claim of intentional interference
stands unsupported by the record. The record is devoid of any
admissible evidence raising a genuine issue of material fact on the
issue.
This deficiency necessarily affects Christensen's other
claims: absent evidence of intentional interference, Christensen's
adjunct theories of conspiracy and cover-up founder. Moreover, the
record discloses no arguably admissible evidence to support
Christensen's claim of discriminatory or retaliatory discharge.
In this case, as we have seen, a showing of wrongful
failure to pay workers' compensation benefits cannot in itself
create a genuine issue of material fact; evidence of specific
intent to cause harm is necessary. As we have also seen,
Christensen's inability to substantiate his claims of intentional
interference, conspiracy, and cover-up cannot be attributed to a
denial of proper discovery. The superior court did not err in
concluding that there was "no genuine issue as to any material
fact"and that NCH, CIGNA, and McKeever were "entitled to judgment
as a matter of law." Alaska R. Civ. P. 56(c).
2. Did the superior court err in ruling on grounds not
stated in the defendants' motions and in dismissing the claims with
prejudice?
Christensen argues that the order granting summary
judgment must nevertheless fail because it was not based on the
grounds stated in the defendants' motions. According to
Christensen, the only point the defendants advanced below was that
Christensen's complaint should be dismissed because it failed to
state a claim upon which relief could be granted. Based on the
premise that the defendants sought nothing but dismissal for
failure to state a claim, Christensen cites Miller v. Johnson, 370
P.2d 171 (Alaska 1962), for the proposition that his complaint was
not subject to dismissal if it might have supported some form of
relief, even though the relief demanded in the complaint may not
be the kind to which the party was in fact entitled. Christensen
further cites Miller for the proposition that the order dismissing
his complaint should have been entered without prejudice, not with
prejudice.
These arguments mischaracterize the defendants' summary
judgment motions. Although McKeever did move to dismiss
Christensen's complaint for failure to state a claim, he also
moved, in the alternative, for summary judgment:
The allegations against Mr. McKeever in
Plaintiffs' complaint, even if taken as true, do not state a claim
upon which relief can be granted under Civil Rule 12(b)(6).
Furthermore, Plaintiffs have raised no genuine issue of material
fact as to Mr. McKeever's liability and Mr. McKeever is entitled to
judgment in his favor as a matter of law under Civil Rule 56.
Like McKeever, NCH and CIGNA moved to dismiss for failure to state
a claim; but they too alternatively moved for summary judgment,
expressly joining in McKeever's motion. In sum, Christensen's
claim that the superior court granted relief not specifically
requested is groundless. [Fn. 9]
Since the superior court properly treated the defendants'
motions as motions for summary judgment, it follows that the court
properly denied Christensen's claims with prejudice, rather than
without prejudice.
3. Did the superior court err in declining to reduce
its oral findings to writing?
After the superior court orally granted the summary
judgment motions, Christensen moved for written findings and
conclusions. The court denied the motion, entering its final
judgment without written findings. Christensen contends that the
court's failure to make written findings was error.
This argument lacks merit. See Alaska R. Civ. P. 52(a)
("Findings of fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56[.]"); see also Palzer v.
Serv-U-Meat Co., 419 P.2d 201, 205 (Alaska 1966) ("[I]n granting
summary judgment it is unnecessary for the trial court to make
findings in regard to the lack of any genuine issues of material
fact to be litigated."). [Fn. 10]
4. Did the summary judgment order violate
Christensen's constitutional right to a jury trial?
Christensen argues that the order granting summary
judgment deprived him of a jury trial, in violation of the Alaska
Constitution. The Alaska Constitution, however, preserves the
right to a jury trial in civil cases only to the "same extent as it
existed at common law." Alaska Const. art. I, sec. 16. At common
law -- as under current Alaska law -- a court had the power to
remove
factual issues from the jury's consideration "where the court
decide[d] there [was] insufficient evidence to raise a question of
fact to be presented to the jury." Taylor v. Interior Enters.,
Inc., 471 P.2d 405, 407 (Alaska 1970) (citing Galloway v. United
States, 319 U.S. 372 (1943) (upholding a directed verdict)). Thus,
a party's right to a jury trial will be violated by a summary
judgment order only when summary judgment is improperly granted --
that is, when a genuine issue of material fact exists. See
Jennings v. State, 566 P.2d 1304, 1308-09 (Alaska 1977). [Fn. 11]
Our holding that Christensen failed to raise a genuine
issue of material fact thus disposes of his jury trial claim.
III. CONCLUSION
The judgment is AFFIRMED.
FOOTNOTES
Footnote 1:
1 Shortly after receiving Christensen's first letter, a
CIGNA claim representative advised Christensen of the company's
decision to refuse to pre-authorize surgery without additional
medical evaluations. Christensen was told that it was common
practice for physicians to contact an insurer for pre-authorization
of treatment, and he was also assured that, when pre-authorization
is denied, discretion to provide treatment remains with the
physician.
Footnote 2:
2 Christensen's wife and two children joined as plaintiffs
in the complaint. Since their claims are derivative of
Christensen's, we do not discuss them separately. For brevity's
sake we refer to the plaintiffs collectively as Christensen.
Footnote 3:
3 McKeever's notice of compliance grouped his withheld
documents into three general categories: privileged documents
available for in camera inspection; non-privileged documents
previously provided or available to Christensen outside the
discovery process; and documents outside the scope of proper
discovery that McKeever believed to be undiscoverable under any
circumstances. Within each of these general categories, McKeever
described several more specific subcategories. McKeever's
correspondence with NCH and CIGNA personnel and the CIGNA
adjustor's computer notes appeared as subcategories under the
general category of privileged documents available for in camera
inspection.
Footnote 4:
4 According to McKeever's notice of compliance, "[t]he
redacted material consisted of notes relating to conversations or
communications with counsel or which were otherwise prepared
pursuant to, as a result of, and in anticipation of litigation."
Footnote 5:
5 Christensen's objection addressed only McKeever's notice
of compliance and did not cover the notice of compliance separately
filed by NCH and CIGNA.
Footnote 6:
6 AS 23.30.055 provides in part:
Exclusiveness of liability. The liability of
an employer prescribed in AS 23.30.045 is exclusive and in place of
all other liability of the employer and any fellow employee to the
employee, the employee's legal representative, husband or wife,
parents, dependents, next of kin, and anyone otherwise entitled to
recover damages from the employer or fellow employee at law or in
admiralty on account of the injury or death.
Footnote 7:
Christensen's claims against CIGNA and McKeever involved
conduct allegedly engaged in by CIGNA as NCH's insurer and by
McKeever as CIGNA's attorney. Accordingly, these claims also
depended on Christensen's allegation of intentional acts. Our
discussion of whether genuine material fact disputes exist
addresses the viability of the claims against CIGNA and McKeever.
Footnote 8:
Notably, in Kruesi v. Norm Aubuchon, Inc., AWCB Case No.
9023828 (June 23, 1992), the Workers' Compensation Board applied
Langdon in the context of a workers' compensation case.
Footnote 9:
Moreover, even if the defendants had moved to dismiss only for
failure to state a claim, the superior court could properly have
entered summary judgment. By its own terms, Alaska Civil Rule
12(b) requires a motion for failure to state a claim to be treated
as a motion for summary judgment if "matters outside the pleading
are presented to and not excluded by the court." Id. See Andrews
v. Wade & De Young, Inc., P.C., 875 P.2d 89, 90 (Alaska 1994);
Homeward Bound v. Anchorage Sch. Dist., 791 P.2d 610, 611-12
(Alaska 1990); Reed v. Municipality of Anchorage, 741 P.2d 1181,
1184 (Alaska 1987). Here, all parties relied on matters outside
the pleadings.
Footnote 10:
Christensen's reliance on Dickerson v. Geiermann, 368 P.2d 217
(Alaska 1962), and Alaska Civil Rule 41(b) is unavailing.
Dickerson did not involve appellate review of a summary judgment
order, and Rule 41(b) deals with involuntary dismissal, not summary
judgment.
Footnote 11:
See also Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434,
437 (Alaska 1995) ("[A] premature grant of summary judgment
forecloses a litigant's right to trial[.]"). See generally 10
Charles Alan Wright et al., Federal Practice and Procedure sec.
2712,
at 574 (2d ed. 1983) ("A motion for summary judgment lies only when
there is no genuine issue of material fact; summary judgment is not
a substitute for the trial of disputed fact issues.").
