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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

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  



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  


                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.  

                   WINFREE, Justice.  


                   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  


----------------------- Page 2-----------------------

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.  


           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  



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.  

                                                                     -2-                                                                   6933  

----------------------- Page 3-----------------------


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  

                                                               -3-                                                         6933

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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  

                                                             -4-                                                        6933

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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  

                                                           -5-                                                    6933

----------------------- Page 6-----------------------


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  


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.  

                                                            -6-                                                      6933

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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  


          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  

                                                              -7-                                                       6933

----------------------- Page 8-----------------------

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."  

                                                             -8-                                                      6933

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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  

                                                                -9-                                                         6933

----------------------- Page 10-----------------------

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.  



                    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  


discretion.   We agree.  


                    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)).  

                                                             -10-                                                          6933  

----------------------- Page 11-----------------------


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  



                                                           -11-                                                      6933

----------------------- Page 12-----------------------


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  


                                   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  


                                                                                                "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  



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.").  

                                                                  -12-                                                             6933

----------------------- 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.  

                                                             -13-                                                        6933

----------------------- Page 14-----------------------


                    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  



                    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.  


                    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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