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Kinzel v. Discovery Drilling, Inc. (06/25/2004) sp-5820
Kinzel v. Discovery Drilling, Inc. (06/25/2004) sp-5820
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEFFREY KINZEL and )
CHERYL KINZEL, ) Supreme Court No. S-10190
)
Appellants, )
) Superior Court No.
v. ) 3AN-99-10959 CI
)
DISCOVERY DRILLING, INC., ) O P I N I O N
and HART CROWSER, INC., )
)
Appellees. ) [No. 5820 - June 25,
2004]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Marion C. Kelly, Bernard P.
Kelly, Wade, Kelly & Sullivan, Anchorage, for
Appellants. Paul S. Wilcox, Lisa C. Hamby,
Hughes Thorsness Powell Huddleston & Bauman
LLC, Anchorage, for Appellee Discovery
Drilling, Inc. Mary L. Pate, Eide, Miller &
Pate, P.C., Anchorage, for Appellee Hart
Crowser, Inc.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
INTRODUCTION
Jeffrey Kinzel filed an occupational safety and hazard
complaint against Hart Crowser, the company with which his
employer, Discovery Drilling, had subcontracted. He was
subsequently reassigned to a different worksite, where he injured
his back. He filed for workers compensation and took medical
leave, but was soon fired. He sued Hart Crowser for defamation,
negligence, and intentional interference with contract, and his
employer for defamation and wrongful termination. After some
claims were dismissed on summary judgment, a jury rendered a
verdict for both defendants on all remaining claims. This appeal
involves a number of challenges to the superior courts pre-trial
and trial rulings.
FACTS
In the summer of 1998, Kinzel was a laborer on an
environmental cleanup site at Fort Wainwright. As a general
laborer Kinzel was open to any kind of work, but the majority of
his time was spent digging trenches in a small, closed-cab
backhoe. This was considered less demanding work than some of
the other job possibilities at the site.
Kinzels employer, Discovery Drilling, Inc., provided
subcontracting work for Hart Crowser, Inc., an environmental
engineering company. The two companies had a long relationship.
For the Fort Wainwright site, Hart Crowser subcontracted with
Discovery for both drilling and remediation services.
Specifically, Discoverys role in the project was in part soil and
ground water remediation, a process of digging trenches with a
backhoe and then assembling a grid of wells, pumps, and pipes
known as a remediation system intended to remove environmental
contaminants from groundwater and soil. This was a two-man job
for Discovery, employing only Kinzel and his colleague Gary
Erickson. Though Erickson had more seniority, Kinzel served in a
de facto supervisory capacity for the pair, as he was more
familiar with the Fort Wainwright location and the Hart Crowser
employees who worked there from his previous summer at the site.
In particular, Kinzel had more open lines of communication with
Craig Martin, Hart Crowser project manager and the ranking
supervisor at the site. Kinzels supervision applied only to
Erickson, and he was subject to the supervision and control of
both his employer and Hart Crowser.
Beginning in May of that year and continuing until the
Fourth of July weekend, the weather was hot and windy. As a
result, Kinzel and Erickson had problems with dust. In early
June, because of a severe sinus infection, Erickson was forced to
visit a doctor. He immediately suspected that his sickness was
connected to the worksite dust, and filed an anonymous complaint
with the Alaska Department of Labor, Division of Occupational
Safety and Health (OSH). It appears that this complaint was
never investigated.
Kinzel also sought medical attention for a respiratory
infection. This resulted in his having to take several days
leave. Kinzel testified that after his sickness he was more
vocal about potential safety issues involving dust, but
eventually found it pointless to keep on complaining because Hart
Crowsers project manager, Martin, didnt want to hear about it.
The dust became a bone of contention because Martin
thought the Discovery employees were wasting too much time and
were going over his head to solve a problem that he felt was
minor or nonexistent. Martin found Kinzels efforts especially
problematic because Hart Crowser and Discovery employees often
worked on joint projects, and he believed Hart Crowser could get
little or nothing done if Discovery employees were spending time
trying to avoid or control dust. Martin told Kinzel and Erickson
to quit . . . whining and if [they] have a problem with the dust
[they] can just leave.
During the Fourth of July weekend, Discoverys president
Kyle Brown and Kinzel met to discuss the growing difficulties
between Discovery and Hart Crowser employees at the Fort
Wainwright site. Brown seemed to be particularly concerned with
the tension between Kinzel and Martin. He and Kinzel spoke of
communication problems and apparently came to a mutual agreement
about getting a fresh start at the site.
After the weekend, dust became less of a problem as the
work changed to a new area. However this new worksite emitted a
pungent, gasoline or pesticide odor which many feared was unsafe.
Hart Crowser tested the ground water but found no significant
contamination. Around the same time, fearing that nothing was
being done in response to Ericksons complaint, Kinzel filed an
OSH complaint, eventually prompting an investigation.
Around the time of the OSH inspectors arrival at the
site, Hart Crowser cordoned off an exclusion zone encircling a
suspected area of contamination. No one was permitted into this
zone without a respirator. Kinzel expressed some resistence to
wearing a mask just to enter the zone, because this would require
him to shave off his beard.
On July 25 a Hart Crowser employee, Bryan Johnson,
reported to Martin that he had seen Kinzel in the exclusion zone
without a respirator for the second time. At Hart Crowsers
request Kinzel was asked to leave the Fort Wainwright worksite,
and he reported back to Discoverys Anchorage headquarters.
After Kinzel returned to Anchorage, Discovery
reassigned him to a more arduous job in Glennallen, under the
supervision of a foreman whom Kinzel believed to be hard on his
men. After several days of long shifts and heavy lifting, Kinzel
suffered serious back pain. He asked to be relieved from the
project, and on August 2 returned to Anchorage, visiting a doctor
the following day. His doctor, Dr. Derek Hagen, gave him a note
releasing him to light duty work only.
Kinzel returned to the Discovery office and had a
conversation with Brown, the substance of which was disputed at
trial. Discovery claims that Brown had light duty work available
for Kinzel, but that Kinzel told Brown he was supposed to take
two to three days off, never revealing the light duty doctors
note. Kinzel claims that he attempted to give the note to Brown,
but that Brown refused to look at it. According to Kinzel, Brown
then said, if you cant work in the field, then you might as well
go home. Discovery counters that Kinzel did not return to work
after the 2-3 days he said the doctor told him to be off.
On August 12 Kinzel filed a workers compensation
injury report. Brown signed the report on the same day, stating
that there was no injury the employee does not like the work and
has been reassigned. On August 12 Kinzel took a new note from
Dr. Hagen to Brown; the note stated that Kinzel should not work
until the end of August.
Brown claims that he understood Kinzel was to be off
work only until the end of August. But on August 31 Brown signed
a form containing Dr. Hagens handwritten statement that indicated
that Kinzel was to be off work until October 8 pending orthopedic
evaluation. Brown claims he never saw this statement and
instead only signed the form where asked. The doctors statement
is a few lines above the section Brown filled out. Brown wrote
ALLEGED under the forms reference to illness or injury.
In early September Brown terminated Kinzels employment
at Discovery. Brown eventually sent a letter to Kinzel
explaining his reasons for the termination.1 The letter states
that the reasons
pertinent to your discharge are your directly
lying to me about the results of your doctors
visit on August 3rd, 1998, including failure
to give me the doctors note from that visit,
and failure to return to work, to come by the
office in person, or to call the office on
September 1st, 1998 as was specified in a
later doctors note that we did receive
clearing you to return to work on that date.
We received no further correspondence from
you or notes from any doctors on your behalf.
You clearly had no interest in maintaining
your job or showing even common courtesy to
your employer.
PROCEEDINGS
