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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McCormick v. Chippewa, Inc. (7/30/2014) sp-6933
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BRENT MCCORMICK, )
) Supreme Court No. S-15046
Appellant, )
) Superior Court No. 3AN-11-12131 CI
v. )
) O P I N I O N
CHIPPEWA, INC. and LOUIS OLSEN, )
) No. 6933 - July 30, 2014
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Paul E. Olson, Judge.
Appearances: Gerald W. Markham, Kodiak, for Appellant.
Laura L. Farley, Farley & Graves, P.C., Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
Parties to a settlement agreement later disagreed on a material term of the
agreement; they sought to enforce the agreement based on their respective
understandings of the term. During summary judgment proceedings, one party asked for
time to conduct discovery regarding the parties' intent. The superior court granted
summary judgment to the other party and denied the discovery request as moot. Because
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it was an abuse of discretion not to allow discovery before ruling on the summary
judgment motion, we vacate the summary judgment order and remand so that appropriate
discovery may be conducted.
II. FACTS AND PROCEEDINGS
A. Injury Complaint, Settlement Negotiations, And Settlement-
Enforcement Complaint
On August 14, 2007, Brent McCormick suffered a back injury while
pushing a net reel aboard the F/V CHIPPEWA , owned by Chippewa, Inc. The day after
his injury McCormick was treated with ibuprofen. Later that night rough seas caused
him to fall out of his bunk and hit his head. McCormick continued to suffer back pain
and dizziness and later was treated by medical specialists in Anchorage.
In August 2010 McCormick filed a complaint against Chippewa, Inc. and
1
Louis Olsen, the vessel's captain, alleging "unseaworth[i]ness" of the F/V CHIPPEWA
and negligence in failing to ensure workplace safety and provide proper medical care.
Chippewa had a liability insurance policy with a $500,000 per occurrence limit,
including a "cannibalizing" provision specifying that costs and expenses spent
"investigating and/or defending any claim" would be deducted from the policy limit.
In early January 2011 McCormick's lawyer corresponded with an insurance
claims adjuster, discussing the policy's terms. In a later email to McCormick's lawyer,
the claims adjuster defined the "policy limit" as $500,000. McCormick's lawyer then
hand-delivered a settlement offer to the claims adjuster, proposing to:
unconditionally settle all aspects of all claims held by my
client Brent McCormick . . . for any and all injuries occurring
or arising out of . . . McCormick's 2007 employment on the
HIPPEWA . . . in exchange for the "policy limits" of the
F/V C
[insurance policy] . . . .
1 Olsen and Chippewa, Inc. are referred to collectively as Chippewa.
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The settlement offer described the claims as arising out of "two accidents" suffered by
McCormick on August 14 and 15, 2007.
Chippewa's lawyer responded to the settlement offer on March 3, writing
to "accept [McCormick's] demand for payment of the remaining policy limits . . . which
has a Protection & Indemnity face limit of [$500,000]." The acceptance letter specified
that "[a]t this point, we estimate the remaining limits are approximately $370,000." A
proposed settlement agreement was attached.
McCormick's lawyer later sent Chippewa's lawyer a letter noting that he
had indicated during a March 21 telephone conversation that he "viewed the policy limits
in the . . . policy to be different than those [Chippewa's lawyer] estimated in [her] letter
of March 3." McCormick's lawyer stated that he understood Chippewa's lawyer to have
"responded [in that conversation] that regardless, it was [Chippewa's] intention in [the]
letter of March 3 . . . to pay 'limits' what ever they may be (which was [McCormick's]
offer's intent)." McCormick's lawyer indicated in his letter that deducting any further
expenses and costs from the policy based on investigating and defending the claim
should cease because "we have a settlement agreement in place." Attached to the letter
was the settlement agreement, with McCormick's signature. McCormick then dismissed
his complaint against Chippewa.
The settlement agreement McCormick signed released Chippewa from
liability for "consideration of the remaining policy limits available under [the policy]
which has a Protection & Indemnity face limit of . . . $500,000." The settlement
agreement stated that the release from liability applied to "any and all claims . . . arising
out of or in any way connected with all accidents and incidents . . . occurring on or about
August, 14, 15, and/or 16, 2007."
McCormick's lawyer again wrote to Chippewa's lawyer requesting
"communications regarding how underwriters are calculating 'limits' and . . . an
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accounting of those items that they proposed being charged against [the limits] to arrive
at this polic[y's] remaining limits." Chippewa's lawyer provided an accounting of the
remaining policy limits, clarifying that the insurance company would make a payment
of $424,040.05 to McCormick, consisting of the policy limit ($500,000), less costs and
expenses for investigating the claim ($128,459.95), plus Alaska Civil Rule 82 attorney's
fees ($52,500).
In November 2011 McCormick filed a second lawsuit, seeking to enforce
the settlement agreement. The complaint stated that the "settlement [agreement]
obligated [Chippewa] to pay [McCormick] the remaining 'policy limits
available'. . . . However [Chippewa] . . . tendered an amount in satisfaction of their
obligation that is substantially less than said remaining 'policy limits available.' "
McCormick requested that the superior court issue an order directing Chippewa to "pay
[McCormick] the amount they are obligated to by their settlement agreement" and enter
a judgment for $100,000 in punitive damages.
Chippewa's lawyer sent McCormick a letter responding to the complaint
and describing McCormick's action as "perplexing and . . . inconsistent with the status
of this case." She wrote: "Our review of the correspondence clearly reflects that we had
offer and acceptance of the remaining policy limits which were calculated as of April 13,
2011 to be $424,040.05."
McCormick's lawyer responded, confirming that there was an offer and
acceptance to settle for policy limits. But he argued that Chippewa's acceptance was
"made with full knowledge the parties might subsequently fail to agree to the amount of
those 'limits' and litigation to determine them would follow."
Chippewa's lawyer responded with another letter stating, "[A]gain I am
confused . . . . [Chippewa is] prepared to tender your client a check in the amount of
$424,040.05 immediately." Chippewa's lawyer indicated she was "at a loss" as to what
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McCormick wanted. McCormick's lawyer later indicated that Chippewa should answer
the November 2011 complaint and that further negotiations would be unproductive.
Chippewa then filed its own motion to enforce the settlement agreement and
a motion to dismiss McCormick's November 2011 lawsuit. Chippewa argued that a
settlement agreement had been reached and must be enforced, and that McCormick failed
to state a claim upon which relief may be granted.
B. Discovery Requests And Pre-trial Motions
After filing his November 2011 complaint, McCormick sent Chippewa
interrogatories requesting that Chippewa indicate "precisely what [Chippewa] contend[s]
are the remaining 'policy limits available,' " and provide factual information related to
Chippewa's claims and any affirmative defenses. Chippewa responded to the
interrogatories in December 2011 but provided only cursory statements, citing other
documents and stating, "Not applicable. See Motion to Dismiss."
In early 2012 Chippewa twice tendered to McCormick's lawyer a
settlement check in the amount of $424,040.05. McCormick's lawyer rejected the first
check because he believed it would be accord and satisfaction of the settlement
agreement for less than what Chippewa owed. McCormick's lawyer rejected the second
check because he believed the accompanying letter placed unacceptable conditions on
endorsement. The rejection letter indicated McCormick "has never agreed that was [the]
amount [and] that sum is less than the amount now due." McCormick then made an
Alaska Civil Rule 68 offer of judgment for a total of $1.25 million. McCormick's lawyer
subsequently sent a second set of interrogatories. The record does not indicate any
response from Chippewa to the second interrogatories.
In March McCormick filed a partial summary judgment motion, arguing
that the parties had reached an agreement to settle the case for "policy limits" but that the
policy allowed for liability "per occurrence." According to McCormick there were three
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occurrences - two accidents and a subsequent bad faith failure to provide maintenance
and cure - entitling him to $1.5 million under the settlement agreement, plus Rule 82
attorney's fees on that amount, without deducting Chippewa's defense expenses.
In April the superior court issued an initial pretrial order requiring the
parties to jointly submit a list of three potential trial dates. The pretrial order noted that
initial disclosures by the parties should be made within 30 days. Three days after that
order, Chippewa filed for a protective order staying the initial pretrial order. Chippewa
argued there was no need for discovery because the factual issues had been resolved by
the settlement agreement. Chippewa also filed an opposition to McCormick's summary
judgment motion. Chippewa pointed to the "undisputed facts" establishing that the
policy limit referred to in the settlement agreement was $500,000. Chippewa also
contended there was no legal basis for McCormick to argue for an interpretation that
"policy limit" meant $1.5 million because the $500,000 amount was identified in the
settlement agreement McCormick signed.
McCormick replied to Chippewa's protective order motion, arguing that the
settlement agreement "did not set forth an express figure" and that "[t]his is not remotely
a case in which those facts have previously been adjudicated." McCormick also raised
2
the "potential need under [Rule] 56(f)" to secure additional discovery. The superior
court took no action on Chippewa's protective order motion.
2 Alaska R. Civ. P. 56(f) provides:
Should it appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated present by
affidavit facts essential to justify the party's opposition [to
summary judgment], the court may refuse the application for
judgment or may order a continuance to permit affidavits to
be obtained or depositions to be taken or discovery to be had
or may make such other order as is just.
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Later in April McCormick filed a status report regarding the pretrial order.
McCormick complained that Chippewa had failed to respond to the second
interrogatories and had failed to exchange initial disclosures, noting that Chippewa's
pending motion for a protective order did not automatically stay the pretrial order.
McCormick also filed a motion to compel Chippewa to respond to the second
interrogatories. McCormick's motion noted that he should have the option to "press
forward with depositions" after the required pretrial disclosures had been made.
Chippewa opposed McCormick's motion to compel, reiterating its belief
that discovery was not warranted because the settlement agreement should be enforced:
"It is appropriate to preclude discovery where it is irrelevant to the cause of action . . . .
[McCormick] agrees with [Chippewa] that the case has settled." But McCormick
responded that Chippewa's assertion it believed the settlement was for $500,000 raised
a question of "state of mind" and a genuine issue of fact, entitling McCormick to
discovery. McCormick concluded that he "still has the right to insist on [Chippewa's]
answers to the interrogatories attached to his initial motion . . . as they are necessary to
issues this court must resolve."
Without ruling on McCormick's motion to compel discovery, in July 2012
the superior court converted Chippewa's motion to dismiss into a motion for summary
judgment. Both parties submitted new briefs arguing their cross-motions for summary
judgment.
C. McCormick's Motions For Pre-trial Conference And Continuance
In August McCormick filed a motion for a pretrial conference regarding
discovery of Chippewa's state of mind during the settlement negotiations. McCormick's
motion sought court permission to conduct discovery "of defendants, their attorneys,
their underwriters, underwriters' attorneys ('coverage counsel'), adjusters and agents [as
to] state of mind on various issues." According to McCormick, Chippewa "raised the
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affirmative defense of 'mistake' . . . putting in issue their 'intent' at the time [of] their
settlement." McCormick also sent Chippewa a third set of interrogatories, but the record
does not indicate any response from Chippewa.
Chippewa opposed McCormick's motions for a pretrial conference and
summary judgment. Chippewa again argued that its underlying motion was to enforce
the settlement agreement and "[r]esolution of this motion does not require discovery or
a pretrial order." Chippewa submitted an affidavit from its attorney stating that "[n]ever
did [McCormick's] counsel mention that he thought the limits were $1.5 million" - i.e.,
three policy limits - and that Chippewa's attorney had followed up with McCormick's
attorney after the March 21 telephone call to resolve any confusion over the policy limits
to be paid. Thus, according to Chippewa, the settlement was for a single policy limit and
discovery was not needed.
McCormick replied to Chippewa's discovery opposition, arguing that if the
superior court were to use Chippewa's lawyer's affidavit to determine the summary
judgment motion, then discovery into the lawyer's state of mind would be necessary. He
contended discovery of Chippewa's lawyer's, its clients', and its underwriters'
"contemporaneously created communications and files and depositions" was warranted
"to see if they corroborate [Chippewa's lawyer's] testimony in her affidavit before
[McCormick] is forced to put his own attorney's testimony . . . in evidence."
McCormick also filed a motion for a Rule 56(f) continuance to engage in discovery of
Chippewa's lawyer's state of mind.
The superior court denied McCormick's Rule 56(f) motion. The court
stated that McCormick's lawyer had not submitted an affidavit explaining why additional
time for discovery was needed, and that the "court is not convinced that additional time
is needed. Counsel has pointed to no particular issue that requires additional discovery
prior to ruling on [Chippewa's] summary judgment motion."
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McCormick moved for reconsideration of the denial of his Rule 56(f)
motion. McCormick argued that the superior court erred by not considering controlling
case law holding that a Rule 56(f) movant does not need to state "specific facts" to be
gained by further discovery. But McCormick also submitted an affidavit from his lawyer
"in support of [a Rule] 56(f) continuance to obtain evidence" in response to Chippewa's
lawyer's affidavit. The affidavit described McCormick's lawyer's version of the
settlement negotiations and disputed the facts set forth in Chippewa's lawyer's affidavit.
McCormick's lawyer contended that Chippewa knew McCormick claimed a settlement
for "more than one accident or occurrence" but went ahead with the settlement.
McCormick's reconsideration motion concluded by asking the superior court for more
time to conduct "an inspection [of Chippewa] and their counsel, adjuster and
underwriters files." According to McCormick, discovery would lead to evidence
"showing their state of mind with regard to the 'per occurrence' coverage and other
coverage available under their policy at issue."
D. Superior Court Decision
During oral argument on the summary judgment motions, McCormick's
lawyer restated his requests for discovery: "[Chippewa] filed their motion for summary
judgment initially in this case. And what would have normally happened had they not
filed that motion, there would have been a pre-trial order issued and there would have
been some discovery happening in the meantime." Chippewa countered that there was
no need for discovery because the case had already been settled.
In January 2013 the superior court issued three orders. First, the superior
court granted Chippewa's motion for enforcement of the settlement agreement as
Chippewa interpreted it. The court concluded that the settlement agreement "was
sufficiently definite and encompassed all of the essential terms necessary to constitute
an offer." Because the settlement agreement referred to a policy limit of $500,000, the
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court held that there may have been questions about the amount remaining, but by
signing the agreement McCormick "clearly agreed to $500,000," plus attorney's fees and
minus allowable expenses. Thus, McCormick's signature on the agreement indicated an
objective intent to be bound by those terms and Chippewa had "fully satisfied their
obligation under the Settlement Agreement" by tendering the settlement checks. Second,
the court granted Chippewa's motion for summary judgment on McCormick's claims.
Third, the court denied McCormick's pending discovery motions as moot.
McCormick now appeals.
III. DISCUSSION
McCormick argues it was error to grant summary judgment because he was
denied the opportunity to conduct discovery into the intent of Chippewa and its lawyer
during the settlement negotiations. According to McCormick, he should be allowed the
opportunity to discover evidence "showing [Chippewa's lawyer's] state of mind with
regard to the 'per occurrence' coverage." McCormick contends that by ruling the Rule
56(f) motion moot, and effectively denying discovery, the superior court abused its
3
discretion. We agree.
4
It is well settled that litigants in civil cases have a "right to discovery" -
to investigate their opponent's claims and gather evidence to support their own
assertions. Rule 26 provides that "[p]arties may obtain discovery regarding any matter,
not privileged which is relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking discovery or to the claim
3 We review the denial of a Rule 56(f) motion for abuse of discretion.
Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008).
4 Noffke v. Perez , 178 P.3d 1141, 1150 (Alaska 2008) (quoting Marron v.
Stromstad, 123 P.3d 992, 999 (Alaska 2005)).
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5
or defense of any other party." "It is not necessary that the information actually be
admissible at trial, only that the information sought might reasonably lead to the
6 We have said that "discovery rules are to be broadly
discovery of admissible evidence."
7 8
construed," in order to uphold "a system of liberal pretrial discovery."
The opportunity to discover facts relevant to an opponent's claims and
defenses is especially important at the summary judgment stage. Summary judgment is
appropriate when "there is no genuine issue as to any material fact" and "the moving
9 The Alaska Civil Rules recognize that
party is entitled to judgment as a matter of law."
when faced with a summary judgment motion, a party might require more time to
discover facts that counter the moving party's assertions; Rule 56(f) provides:
Should it appear from the affidavits of a party opposing the
motion that he cannot for reasons state present by affidavit
facts essential to justify his opposition, the court may refuse
the application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just.
As we have explained, "[t]he purpose of [Rule 56(f)] is to provide an
additional safeguard against an improvident or premature grant of summary judgment."10
5 Alaska R. Civ. P. 26(b)(1).
6 Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004).
7 Lockwood v. Geico Gen. Ins. Co. , 323 P.3d 691, 699 (Alaska 2014)
(quoting Lee v. State , 141 P.3d 342, 347 (Alaska 2006)).
8 Jones v. Jennings , 788 P.2d 732, 735 (Alaska 1990).
9 Alaska R. Civ. P. 56(c).
10 Munn v. Bristol Bay Hous. Auth ., 777 P.2d 188, 193 (Alaska 1989) (quoting
10A CHARLES ALAN WRIGHT , ARTHUR R. MILLER & MARY KAY KANE , FEDERAL
(continued...)
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In accordance with our system of liberal pretrial discovery, we have made it clear that
Rule 56(f) motions normally should be granted: "[A]s long as a non-movant [for
summary judgment] has not been dilatory and has 'made clear to the trial court and the
opposing party that he' is requesting a Rule 56(f) continuance, the request 'should be
11
And the prerequisites for granting a Rule 56(f) motion are not
freely granted.' "
onerous: the movant does not need to "state what specific facts further discovery will
12
"The request will generally
produce" or provide an affidavit in support of the motion.
be granted if the party provides adequate reasons explaining why the party cannot
13
produce facts necessary to oppose summary judgment within the original time frame."
Here, the parties' positions suggested at least the three following scenarios:
(1) both McCormick's lawyer and Chippewa's lawyer understood the settlement
agreement was for a single policy limit of $500,000 regardless of the number of injury
occurrences; (2) both lawyers understood the settlement agreement was for "policy
limits," leaving open for later resolution how many occurrences and single policy limits
were at issue; or (3) there was no meeting of the minds regarding the interplay between
10 (...continued)
PRACTICE AND PROCEDURE § 2740, at 530-32 (2d ed. 1983)).
11 Id . (quoting Jennings v. State , 788 P.2d 1304, 1313-14 (Alaska 1977)).
12 Id . ("[W]e see no compelling reason to interpret Rule 56(f) to require that
non-moving opposing parties state what specific facts discovery will produce."); Kessey
v. Frontier Lodge, Inc ., 42 P.3d 1060, 1063 (Alaska 2002) (declining to require an
affidavit in support of a Rule 56(f) motion).
13 Gamble v. Northstore P'ship, 907 P.2d 477, 485 (Alaska 1995); see also
Mitchell v. Teck Cominco Alaska, Inc ., 193 P.3d 751, 758 (Alaska 2008) ("[T]o receive
a continuance [under Rule 56(f)] a party (1) must unambiguously request relief on
Rule 56(f) grounds . . . (2) must not have been dilatory during discovery; and (3) must
provide adequate reasons why additional time is needed.").
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----------------------- Page 13-----------------------
occurrences and policy limits, and therefore there was no settlement at all. McCormick
consistently sought discovery of facts relevant to Chippewa's assertion that the
settlement agreement was for a single policy limit of $500,000.
McCormick's filings made clear that he was asking for a Rule 56(f)
continuance, the reasons for his request, and the type of discovery he sought to obtain.
McCormick's first mention of Rule 56(f) occurred as part of his opposition to
Chippewa's motion for a protective order. McCormick explicitly stated that he
"invoke[d] the potential need under [Rule] 56(f) to secure evidence in support" of his
positions. McCormick later replied to Chippewa's opposition to McCormick's motion
for a pretrial conference, pointing out that "Plaintiff's . . . total inability to conduct
discovery of defendant[']s agent[']s actual state of mind compels denial of defendant[']s
[summary judgment motion] pending Plaintiff's [Rule] 56(f) opportunity to conduct
discovery" (emphasis omitted). After the superior court denied McCormick's Rule 56(f)
motion, McCormick moved for reconsideration, reiterating his desire to conduct
discovery of Chippewa's "counsel, their adjusters, and their underwriters." McCormick
submitted his lawyer's affidavit describing the type of information sought: "Specifically
. . . copies of written communications between [Chippewa's lawyer and the insurance
adjusters], as well as notes of oral communications between them and with Plaintiff's
counsel showing their state of mind with regard to the 'per occurrence' coverage."
McCormick clearly sought a continuance to conduct discovery into Chippewa's intent
regarding the settlement agreement. Such discovery is particularly important considering
that McCormick was not given an opportunity to depose Chippewa's lawyer even though
Chippewa used its lawyer's affidavit to establish its intent and what it alleged was
McCormick's understanding of that intent.
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It is also clear that McCormick was not dilatory in seeking discovery and
required additional time to gather new facts. McCormick sent three sets of
interrogatories to Chippewa requesting information about Chippewa's claims and
defenses. Chippewa failed to provide meaningful responses to the first interrogatories
and did not respond at all to the second and third interrogatories. The superior court
never ruled on McCormick's motion to compel Chippewa to respond to those
interrogatories.
Based on the foregoing, we conclude that it was an abuse of discretion to
deny McCormick's Rule 56(f) motion before ruling on summary judgment.
IV. CONCLUSION
We VACATE the superior court's grant of summary judgment and
REMAND for further proceedings consistent with this opinion.14
14 On remand, the superior court will have the opportunity to consider
McCormick's discovery requests, including allowing Olsen's and McCormick's
depositions, which may be appropriate for at least two reasons: (1) testimony about the
underlying accident(s) and the relative nature of the injury(ies) may provide context for
the dispute, i.e., whether each alleged injury could give rise to a reasonable expectation
of a policy limit recovery; and (2) in light of the possibility that the putative settlement
agreement is unenforceable, the testimony of the apparently elderly men may be a
safeguard to preserve evidence of the events of August 14 through 16, 2007.
-14- 6933
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