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Cikan v. ARCO Alaska, Inc. (12/16/2005) sp-5967
Cikan v. ARCO Alaska, Inc. (12/16/2005) sp-5967
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
| CHRISTINE L. CIKAN,
| ) |
|
| ) Supreme Court No. S-
10915 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-00-6446
CI |
|
| ) |
|
ARCO ALASKA, INC., | ) O P I N I O
N |
|
| ) |
|
Appellee. | ) [No. 5967 - December
16, 2005] |
|
| ) |
|
|
|
|
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan,
Judge.
Appearances: Max F. Gruenberg, Jr.,
Gruenberg, Clover & Holland, Anchorage, for
Appellant. Andrew Guidi, Delaney, Wiles,
Hayes, Gerety, Ellis & Young, Inc.,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
BRYNER, Chief Justice.
FABE, Justice, dissenting.
I. INTRODUCTION
Eight and a half years after injuring herself in a slip-
and-fall accident outside the ARCO building in Anchorage,
Christine Cikan sued ARCO for damages, claiming that her delayed
action was timely because her injury had made her incompetent.
The superior court dismissed Cikans case on summary judgment,
rejecting her claim of incompetency and concluding that her suit
was barred by the statute of limitations. We reverse and remand,
holding that Cikan raised a genuine issue of material fact as to
her competency and that this dispute precluded summarily
dismissing her action as time-barred. But because disputes
involving compliance with the statute of limitations present
preliminary issues of fact that must ordinarily be decided by the
court before trial, we further hold that, on remand, the superior
court must resolve the factual dispute over Cikans competency by
conducting a pretrial evidentiary hearing.
II. FACTS AND PROCEEDINGS
In December 1991 Christine Cikan slipped and fell on
ice outside the ARCO building in Anchorage, hitting her head and
suffering a concussion. Some time after the accident Cikan
contacted attorney Joseph Kalamaridess office and spoke to
Kalamarides by telephone about representing her in a workers
compensation claim related to her accident. Kalamarides declined
the case but gave Cikan the names of two other attorneys who
handled workers compensation cases. Kalamarides also told Cikan
that she might have a separate personal injury claim against ARCO
and that she had two years from the date of the accident to file
that claim. In November 1993 Kalamarides sent Cikan a letter
confirming their conversation and repeating this information.
In December 1995, four years after her accident, Cikan
filed a pro se complaint against Kalamarides, accusing him of
malpractice for allowing her claim against ARCO to expire.
Specifically, Cikan alleged that she had contacted Kalamaridess
office about six months after her accident and had extensively
discussed the case with him and his staff; that Kalamarides
agreed to represent her in pursuing a claim against ARCO; but
that he changed his mind at the last minute, claiming that he was
too busy. By then, Cikan claimed, it was too late for her to
find substitute counsel.
Kalamarides denied these allegations and moved for
summary judgment, insisting that Cikan had spoken to him only
once, primarily about her workers compensation claim; that he had
never agreed to represent her; and that he had referred her to
another attorney before her time to file the claim expired.
Cikan evidently did not oppose Kalamaridess motion for summary
judgment. The superior court dismissed Cikans claim in 1996.
In April 2000, more than eight years after her accident
and three and a half years after her suit against Kalamarides was
dismissed, Cikan sued ARCO for the injuries she sustained in her
1991 fall. Her complaint acknowledged that she had not filed the
action within the specified two-year time limit, but alleged that
this delay was due to her injuries.
ARCO moved for summary judgment, asserting that Cikans
claim was barred by the two-year statute of limitations for
personal injury actions. ARCOs motion noted that Cikan
apparently intended to claim that the statutory limit had been
tolled by mental incapacity, but ARCO insisted that she had
failed to offer a shred of evidence that she is or was
incompetent by reason of mental illness or mental disability.
And even assuming that the 1991 accident resulted in mentally
disabling injuries, ARCO contended, Cikans suit against
Kalamarides conclusively demonstrated that she had recovered her
competency by 1995, when that action was filed:
Her allegations in her pro se complaint
against Joseph Kalamarides demonstrate (1)
that the plaintiff understood all the
elements of her personal injury cause of
action, (2) that she understood the statute
of limitations, and (3) that she was capable
of making prompt and diligent efforts in this
matter.
In opposing ARCOs motion,1 Cikan filed an affidavit
from Dr. Aron Wolf, a psychiatrist who had recently examined
Cikan and diagnosed her as suffering from post-concussion
syndrome originating from a concussion that she sustained as a
result of a fall on December 17, 1991. Dr. Wolf stated that her
condition manifested itself in confusion, personality changes,
disorganization, and severe decrements in mathematical ability.
Dr. Wolf further explained: On review of the records, it is clear
to me that the picture of the symptoms of the post-concussion
syndrome did not become evident to either Ms. Cikan or her
physicians until a number of years after the accident and thus
not filing the lawsuit until she was aware of her symptom complex
would be consistent with her injuries. In addition to Dr. Wolfs
affidavit, Cikans opposition included voluminous records intended
to document her post-accident employment history and medical
treatment, as well as many affidavits from family members and
acquaintances, who generally described changes in Cikans behavior
and mental state consistent with the symptoms detected by Dr.
Wolf.
In addition, Cikan filed a verified memorandum replying
to ARCOs contention that her 1995 suit against Kalamarides
amounted to conclusive proof of her competency when that action
was filed. Cikan insisted that, because of the head injury she
sustained in the 1991 accident, she was not able to fully
comprehend the circumstances at the time of that suit, and was
not mentally able to file this lawsuit until [she] actually did
so.
While acknowledging that her pleadings in the
Kalamarides case could be viewed as circumstantial evidence of
her understanding and competency, Cikan advanced an alternative
explanation; disavowing her claims to the contrary in her
complaint against Kalamarides, Cikan maintained:
I never met Mr. Kalamarides. I only
spoke with him once, by phone. He could not
see me and could not tell whether I
understood the implications of what he was
saying, specifically whether I understood the
concept of a statute of limitations. I did
not; nor did I understand the concept of
tolling until after I had filed this lawsuit
against ARCO. The fact that he even wrote me
a letter may be reflective of (1) the fact
that I was very confused when we talked, and
(2) my head injury.
Cikan further pointed out that when she sued
Kalamarides,
[t]he only document I filed in that case was
the complaint, which was drafted by an
attorney I had hired for that limited
purpose. He would not represent me. Mr.
Kalamarides received summary judgment by
default. As he stated in his affidavit, I
had been totally confused about the number of
times I had contacted him. Not only was I
wrong factually, but I never should have sued
him.
As explained in this affidavit, then, Cikans suit
against Kalamarides could be viewed as a sign of her ongoing
incapacity; or as Cikan put it, The very filing of that lawsuit
shows my mental confusion four years after the accident.
The superior court rejected Cikans claim of
incompetency and granted ARCOs motion for summary judgment,
concluding that the action was time-barred. Pointing to the
pleadings and circumstances surrounding Cikans 1995 action
against Kalamarides, the court found:
The . . . evidence demonstrates that she knew
what her legal rights were and that she was
taking steps to ensure that she filed a claim
before the statute of limitations ran. In
Cikans December 15, 1995 complaint against
Kalamarides, it is clear that she understood
her rights as she stated that she made
diligent efforts to retain another attorney
as she knew the statute of limitations would
run in December of 1993.
In the courts view, because Cikan clearly understood
the statute of limitations in 1995, the various problems
documented in the records and affidavits that she had filed did
not suffice to raise an issue of fact concerning the timeliness
of her claim. The court similarly found that Dr. Wolfs affidavit
did not suffice to raise a genuine issue of material fact,
emphasizing that Dr. Wolf does not specifically state or raise an
issue of fact that Cikan was mentally incompetent during the
years 1991, 1992, 1993, or even through 1995. Nor does he state
that she did not understand her legal rights. Finding no basis
for tolling the statute of limitations under these facts, the
court dismissed Cikans claim.
Cikan appeals.
III. DISCUSSION
We review questions of summary judgment de novo.2 We
will affirm a grant of summary judgment if there are no genuine
issues of material fact and if the movant is entitled to judgment
as a matter of law. When making this determination, we draw all
reasonable inferences in favor of the non-movant.3 The moving
party has the initial burden of offering admissible evidence
showing both the absence of any genuine dispute of fact and the
legal right to a judgment.4 Once the moving party has made a
prima facie showing, the burden shifts to the non-moving party to
produce admissible evidence reasonably tending to dispute or
contradict the movants evidence.5 To defeat a motion of summary
judgment an adverse party may not rest upon mere allegations, but
must set forth specific facts showing that there is a genuine
issue of material fact. To create a genuine issue of material
fact there must be more than a scintilla of contrary evidence.6
These same ground rules apply in summary judgment cases
involving statute-of-limitations defenses.7 But such cases
present a procedural wrinkle: the task of interpreting and
applying a statute of limitations traditionally falls within the
province of the courts; so when a factual dispute precludes entry
of summary judgment the dispute must ordinarily be resolved by
the court at a preliminary evidentiary hearing in advance of
trial.8
Here, Cikan was injured in 1991 and filed suit against
ARCO nearly nine years later, in 2000. Her claim would
ordinarily be barred by the two-year filing limit for personal
injury claims set out in AS 09.10.070(a).9 But Cikan claimed
mental incompetency. Under AS 09.10.140(a), mental incompetency
tolls the two-year filing limit.10
In its motion for summary judgment, ARCO asserted that
Cikans suit was time-barred, arguing that she had presented no
evidence of incompetency. ARCO also offered medical evidence
indicating that Cikan appeared to be mentally competent in 1993.
In addition, ARCO pointed to Cikans lawsuit against Kalamarides,
insisting that her pleadings in that case provided conclusive
evidence that she was mentally competent after the accident.
Because the evidentiary threshold necessary to preclude
the entry of summary judgment is low,11 Cikan could defeat ARCOs
summary judgment motion by presenting evidence of incompetency
that amounted to more than a scintilla of contrary evidence.12 No
special or higher burden attaches to claims of mental
incompetency. To the contrary, as we pointed out in Adkins v.
Nabors Alaska Drilling, Inc., [c]ourts have interpreted liberally
the type of mental condition that will toll a statute of
limitations.13 We noted in Adkins that the general test [for
incompetency] is whether a person could know or understand his
legal rights sufficiently well to manage his personal affairs.14
We then emphasized that this test becomes particularly lenient in
the summary judgment context:
Plaintiffs have engaged in a surprising
amount of activity and still have
successfully claimed to be incompetent under
a tolling statute. This is especially true
where a court would be required to hold as a
matter of law that the plaintiff was
competent, such as in a summary judgment
motion or motion on the pleadings. In at
least three cases, plaintiffs have retained
attorneys, commenced actions prior to the
limitations period and claimed the protection
of a tolling statute to add an additional
party after the limitations period. A
Michigan court noted that a plaintiffs mental
condition might be such that, while somewhat
aware, he is only partially aware of the
circumstances entitling him to maintain an
action; such a person may be only partially
or imperfectly able to assist his lawyer in
prosecuting the action.[15]
In granting ARCOs summary judgment motion, the superior
court viewed Cikans 1995 lawsuit against Kalamarides as
conclusive evidence of competency. Yet as we stressed in this
passage of Adkins, prior litigation and representation are not
necessarily indicative of mental capacity, since awareness of an
existing claim does not necessarily reflect a persons ability to
assess and pursue it in a rational and effective manner.
Here, on its face, Cikans complaint in the Kalamarides
lawsuit evinced a clear understanding of the operation of the
statute of limitations. This undeniably qualifies as strong,
even compelling, evidence that Cikan met the Adkins test for
competency; yet it is not necessarily conclusive evidence. If we
credit Cikans sworn account of the circumstances surrounding the
prior lawsuit as we must in reviewing the superior courts ruling
on summary judgment it offers an explanation consistent with her
claim of mental disability. The comparative weakness of this
competing evidence is not an issue to be weighed at summary
judgment.
Nor does Dr. Wolfs failure to specifically say that
Cikan was incompetent during the years immediately after her
accident preclude his affidavit from qualifying as more than a
scintilla of contrary evidence responding to ARCOs evidence of
competency. In distinguishing Adkins and declining to find that
case controlling here, the superior court emphasized that the
medical experts affidavits in Adkins were unequivocal. Yet
Adkins did not rest its conclusion on the strength of that
medical evidence. To the contrary, as already noted above,
Adkins expressly emphasized that the test of mental incompetency
is especially lenient at summary judgment. Here, if accepted as
true, Dr. Wolfs expert opinion certainly qualifies as substantial
evidence pointing to the possibility of accident-induced mental
incapacity; an unequivocal and time-specific diagnosis ruling out
competency was not required to raise a genuine issue of disputed
fact on the issue. Because Adkins expressly recognizes that
Alaskas incompetency statute does not require a formal finding of
incompetency by a court,16 Adkins cannot fairly be read as
suggesting that a formal finding of incompetency by a medical
expert is necessary to raise a genuine issue of fact.
When considered in the light most favorable to Cikan,
then, the totality of the evidence in the record including Dr.
Wolfs affidavit, the other affidavits and documentation submitted
by Cikan, and Cikans own verified statement readily meets the
more than a scintilla of contrary evidence17 standard necessary to
create a genuine issue of material fact as to whether Cikan
became incompetent during the two years immediately following her
fall.
ARCO nevertheless argues that the affidavits and
records Cikan attached to her opposition provided no support for
her claim of incompetency, because they consisted of inadmissible
hearsay based on lay witness testimonials or did not reflect on
her condition in the years immediately after the 1991 accident.18
But while this may be correct as to some of the exhibits, not all
the affidavits can be so easily dismissed.19 Taken together and
viewed in the light most favorable to Cikan, these records and
affidavits provide substantial circumstantial evidence supporting
Dr. Wolfs expert assessment.
ARCO separately argues that Cikans allegations against
Kalamarides should be treated as binding judicial admissions that
she cannot now dispute.20 But ARCOs position overstates the
binding effect of a judicial admission, which only extends to the
case in which the admission was made: Judicial admissions are not
evidence at all but rather have the effect of withdrawing a fact
from contention. Included within this category are admissions in
the pleadings in the case . . . . Ordinary evidentiary
admissions, on the other hand, may be controverted or explained
by the party. Within this category fall the pleadings in another
case[.]21
In summary, because we find ample evidence to raise a
genuine issue of material fact and no legal justification for
treating Cikans prior pleadings in the Kalamarides suit as
currently binding admissions, we hold that it was error to
dismiss Cikans claim on summary judgment.
Our decision on this point leaves one question
unanswered: how should this factual dispute over mental
incompetency be resolved? In their briefing and at oral
argument, both parties seemed to assume that the jury would have
to decide the issue. But as we have already indicated above,
disputes concerning the statute of limitations raise preliminary
questions of fact that should ordinarily be decided by the court
after conducting an evidentiary hearing. In the present case,
then, the superior court should conduct a pretrial evidentiary
hearing on remand to resolve ARCOs statute-of-limitations
defense.22
IV. CONCLUSION
We REVERSE the order granting summary judgment and
REMAND for an evidentiary hearing to determine if Cikans claim is
time-barred.
FABE, Justice, dissenting.
Christine Cikans slip-and-fall accident occurred on
December 17, 1991. When attorney Joseph Kalamarides declined
Cikans request that he handle her workers compensation case
related to the accident, he informed Cikan in writing that she
had only two years from the date of the accident to file a
personal injury claim against ARCO. Thus, Cikan was aware that
she was required to file suit against ARCO by December 17, 1993.
Yet Cikan did not file her lawsuit until April 2000. The court
concludes that Cikan presented sufficient evidence of her mental
incompetency to defeat ARCOs motion for summary judgment and
prevent dismissal of her action as time-barred. But a careful
examination of Cikans evidence reveals that she presented
virtually no evidence of mental incompetency during the relevant
time period of 1991-1993. I therefore disagree with the courts
decision to reverse the trial courts grant of summary judgment to
ARCO.
In Hernandez-Robaina v. State, we focused on [a]n
individuals mental capacity to understand his or her rights, not
whether the individual actually understood or knew of those
rights, [as] the gravamen of mental incompetency under AS
09.10.140(a)(2).1 Thus, it is the individuals capabilities
whether Cikan could know or understand her legal rights
sufficiently well to manage her personal affairs and not whether
she did know or understand them that forms the test for tolling
the statute of limitations due to mental incompetency. The
central question is whether the individual would be able to
comprehend the concepts and ideas of which his or her rights
consist if those matters were adequately communicated.2
Cikan has failed to produce evidence demonstrating that
she lacked the mental capacity to understand her rights during
the relevant time period of December 1991-1993. As the superior
court recognized, Dr. Wolfs affidavit did not state that Cikan
was mentally incompetent or incapable of understanding her legal
rights from the date of injury in 1991 until the running of the
statute in 1993. And while I agree with the court that a formal
finding of incompetency by a medical expert is not necessary to
raise a genuine issue of material fact,3 Dr. Wolfs diagnosis of
Cikan in 2000 with post-concussion symptoms does not raise a
genuine issue of material fact as to whether Cikan could
understand her rights from 1991-1993.
Moreover, the testimony of Cikans lay witnesses relied
on by the court focuses on her inability to function after 1995,
the year that she filed the malpractice lawsuit against
Kalamarides. For example, Jacqueline Sykess testimony is that
when she saw Christine in 1995, she was not the same person that
she had been in earlier years: Christine came to see me in 1995
in California and I hardly recognized her. And Tahni Warner
Brotherton did not even meet Cikan until the summer of 1992, six
months after her accident, and at that time Cikan appeared to
have her life together. Thus, according to Brotherton, after her
accident Cikan was employed at Alyeska Ski Resort and drove a
nice car. The jewelry and furniture she owned was very tasteful
and well kept. According to Brotherton, [o]ver the next few
years I watched her lose all of this because she could no longer
work or keep her life together.
Finally, there is nothing in the record that explains
how Cikan could have filed her lawsuit against Kalamarides if she
was mentally incompetent in 1995. She seems to misunderstand the
Hernandez-Robaina test when she argues that her foolish strategy
choice to sue Kalamarides should be viewed as a sign of her
ongoing incapacity and maintains that [t]he very filing of that
lawsuit shows my mental confusion four years after the accident.
Although the threshold showing necessary to preclude
entry of summary judgment is extremely low, as evidenced by this
courts holding in Meyer v. State,4 I cannot agree that Cikan has
presented more than a scintilla of contrary evidence regarding
her competency for the relevant 1991-1993 time period. The only
evidence of Cikans mental state during this period is the
assessment of examining neurologist Dr. Kenneth Pervier, who
concluded that in May 1993 Cikans [m]ental status examination was
entirely within normal limits and [t]here is no evidence of a
thought disorder. Given Cikans utter lack of evidence of mental
incompetency during the relevant period of December 1991-1993, I
am unable to concur that the superior court should conduct a
pretrial evidentiary hearing regarding Cikans competency. I
would affirm the superior courts grant of summary judgment and
therefore I respectfully dissent.
_______________________________
1 Cikan initially failed to file a timely response to
ARCOs motion; the superior court granted summary judgment to
ARCO, noting that no opposition had been filed. Cikan then
submitted an opposition and moved to set aside the summary
judgment order, asking the court to accept her untimely
opposition. The superior court granted Cikans motion, set aside
the initial summary judgment order, accepted her opposition, and
ruled anew on the summary judgment motion after allowing ARCO an
opportunity to reply to Cikans opposition. On appeal ARCO does
not contest the superior courts decision vacating its initial
summary judgment order and accepting Cikans late opposition.
2 Mechanical Contractors of Alaska, Inc. v. State, Dept
of Pub. Safety, 91 P.3d 240, 244 (Alaska 2004).
3 Alakayak v. British Columbia Packers, Ltd., 48 P.3d
432, 447 (Alaska 2002).
4 See Philbin v. Matanuska-Susitna Borough, 991 P.2d
1263, 1265 (Alaska 1999).
5 Id. at 1265-66 (citations omitted).
6 Martech Const. Co. v. Ogden Envtl. Servs., Inc., 852
P.2d 1146, 1149 n.7 (Alaska 1993) (citation omitted).
7 See Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1033-34
(Alaska 2002).
8 Id. at 1034 n.28 (citing Pedersen v. Zielski, 822 P.2d
903, 907 n.4 & 908 (Alaska 1991); Decker v. Fink, 422 A.2d 389,
394 (Md. Spec. App. 1980); Shillady v. Elliot Cmty. Hosp., 320
A.2d 637, 639 (N.H. 1974); Lopez v. Swyer, 300 A.2d 563, 567
(N.J. 1973)).
9 AS 09.10.070(a) provides:
Except as otherwise provided by law, a person
may not bring an action (1) for libel,
slander, assault, battery, seduction, or
false imprisonment, (2) for personal injury
or death, or injury to the rights of another
not arising on contract and not specifically
provided otherwise; (3) for taking,
detaining, or injuring personal property,
including an action for its specific
recovery; (4) upon a statute for a
forfeiture or penalty to the state; or (5)
upon a liability created by statute, other
than a penalty or forfeiture; unless the
action is commenced within two years of the
accrual of the cause of action.
10 AS 09.10.140(a) provides:
Except as provided under (c) of this section,
if a person entitled to bring an action
mentioned in this chapter is at the time the
cause of action accrues either (1) under the
age of majority, or (2) incompetent by reason
of mental illness or mental disability, the
time of a disability identified in (1) or (2)
of this subsection is not a part of the time
limit for the commencement of the action.
Except as provided in (b) of this section,
the period within which the action may be
brought is not extended in any case longer
than two years after the disability ceases.
11 Johns Heating Serv., 46 P.3d at 1032.
12 Meyer v. State, Dept of Revenue, Child Support
Enforcement Div., 994 P.2d 365, 368 (Alaska 1999).
13 609 P.2d 15, 23 (Alaska 1980).
14 Id.
15 Id. (internal footnote omitted) (quoting Davidson v.
Baker-Vander Veen Constr. Co., 192 N.W.2d 312, 319 (Mich. App.
1971)).
16 Adkins, 609 P.2d at 23.
17 Martech Const. Co., 852 P.2d at 1149 n.7.
18 We note that AS 09.10.140(a) refers to incompetency at
the time the cause of action accrues. Here, ARCO has not argued
that Cikans claim was time-barred as a matter of law because it
failed to allege incompetency that already existed at the time of
the accident or was immediately caused by the accident. ARCO
simply contends that Cikan failed to introduce any evidence
raising a genuine issue of material fact as to incompetency
during the two years following her accident. Thus, the narrow
question we consider in this case is whether Cikan produced
sufficient evidence to raise a genuine question as to
incompetency that might have tolled the deadlines for filing at
some point during the two-year limitations period. We need not
consider whether AS 09.10.140(a) should be strictly construed to
cover only cases involving preexisting incompetency or
incompetency occurring at the moment an accident occurs.
Compare, e.g., Kaiser v. Umialik Ins., 108 P.3d 876, 882 (Alaska
2005) (incompetence by reason of mental illness or disability
during the limitation period tolls the statute of limitations for
the duration of the disability) with Williams v. Coughlan, 244
F.2d 6, 8 (9th Cir. 1957) (precursor to AS 09.10.140 tolled only
by the continuance of [a] disability which existed at the time
the cause of action arose).
19 For example, an affidavit submitted by Tahni Warner
Brotherton indicates that Brotherton has known Cikan since the
summer of 1992. She describes how Cikans life disintegrated
during this period, declaring that [i]t was apparent that she
could not function at a most basic level. Brotherton explains
that when she first met Cikan, she appeared to have her life
together. She was employed at Alyeska Ski Resort and drove a
nice car. . . . Over the next few years I watched her lose all of
this because she could no longer work or keep her life together.
The most basic life skills were beyond her capability.
Similarly, an affidavit submitted by Jacqueline Sykes provides a
before-and-after view of Cikan. Sykes states that she met Cikan
in 1983, when Cikan was managing a restaurant in Anchorage where
Sykes was a waitress. She describes Cikan as then being a very
efficient and effective manager. Sykes subsequently left Alaska,
and Cikan visited her in California in 1995. At the time of the
visit, Sykes observes, The person who I had known for 12 years
had vanished and in her place [was] a broken person who could not
remember daily events or memories from the past. The work
records submitted by Cikan tend to corroborate these
descriptions, indicating that Cikan encountered serious problems
at work during 1992-93 including problems with time management,
relations with other employees, and the explosiveness of [her]
temper and that she was ultimately dismissed in June 1993.
20 ARCO cites Hayes v. Xerox Corp., 718 P.2d 929, 931-32
(Alaska 1986); Soo Line R.R. Co. v. St. Louis Southwestern Ry.
Co., 125 F.3d 481, 483 (7th Cir. 1997); and 30B Wright & Miller,
Federal Practice & Procedure 7026 (2004).
21 30B Wright & Miller, Federal Practice & Procedure 7026
(2004); see also Bengtson v. Hines, 457 A.2d 247, 250 (R.I. 1983)
([A] pleading in a separate cause of action is merely a quasi
admission, which is not conclusive in any sense. It is merely an
inconsistency in a pleaders proof, which may be treated like any
other admission or inconsistent statement for purposes of
impeaching credibility.) (citations omitted); cf. Universal Am.
Barge Corp. v. J-Chem., Inc., 946 F.2d 1131, 1142 (5th Cir. 1991)
(judicial admissions are not conclusive and binding in a separate
case from the one in which the admissions were made); State Farm
Mut. Auto Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.
1968) (same); Hughes v. Hughes, 363 P.2d 155, 158 (Okla. 1961)
(The pleadings in a prior action of the same general character,
though not conclusive upon a party, are of evidentiary force in a
subsequent proceeding.).
22 Our reversal of the summary judgment order necessarily
vacates the superior courts award of attorneys fees to ARCO,
making Cikans separate challenge to the fee award moot.
1 849 P.2d 783, 785 (Alaska 1993).
2 Id.
3 Slip Op. at 11.
4 Meyer v. State, Dept of Revenue, Child Support
Enforcement Div., 994 P.2d 365, 368 (Alaska 1999).
