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Otis Elevator Co. v. Northwood Associates (11/15/91), 820 P 2d 1072
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
OTIS ELEVATOR COMPANY, INC., )
) Supreme Court Nos.
Appellant and ) S-3546/S-3547/S-3580
) Trial Court No.
v. ) 4FA-87-832 Civil
MARILYN R. STULPIN GARBER, )
and NORTHWARD OPERATING CO., ) OPINION ON REHEARING
INC., an Alaska Corporation, )
a/k/a NORTHWARD ASSOCIATES, )
) [No. 3770 - November 15, 1991]
Appellees and )
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Jay Hodges, Judge.
Appearances: Dale W. House, Michelle
Michaud, Mark Rindner, Lane, Powell & Barker,
Anchorage, for Otis Elevator Company, Inc.
Gerald E. Stinson, Fairbanks, for Marilyn R.
Stulpin Garber. Robert L. Eastaugh, Delaney,
Wiles, Hayes, Reitman & Brubaker, Inc.,
Anchorage, for Northward Associates.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, and Compton, Justices.
[Moore, Justice, not participating.]
Marilyn R. Stulpin Garber (Garber) was injured on March
27, 1986, as she attempted to get on one of the elevators located
in the Northward Building in Fairbanks. She claimed she tripped
because the elevator stopped somewhat above the floor. The
elevator was manufactured by Otis Elevator Company and installed
in 1952. At the time of the accident, Otis was under contract
with Northward Associates, the building owner, to maintain and
repair the elevator. Garber filed suit against Northward and
Otis, claiming negligence and products liability. Northward
filed a cross-claim for indemnity against Otis. After a lengthy
and complex discovery process, the trial judge entered a
sanctions order declaring Otis liable to both Garber and
Northward for failing to properly respond to interrogatories and
requests for production.
I. Propriety of the Sanctions Order
The interrogatories and requests for production at
issue were served on December 21, 1987. Otis objected to the
interrogatories because there were more than thirty questions.1
Northward moved to compel. The motion was granted on February 3,
1988, but the trial court permitted Otis to make additional
objections to the interrogatories and set a deadline. Otis
answered one interrogatory entirely, two partially, and objected
to the rest, stating they were too burdensome and overly broad.
All of the requests for the production of documents were objected
to on the same basis, except one. On July 19, 1988, Northward
moved for an order compelling discovery, seeking answers to all
of the interrogatories and production of the requested documents.
Otis opposed the motion, and a hearing was held on November 8,
The court found that one of the interrogatories was too
broad and required no answer. Numerous other interrogatories, as
well as several requests for production, were narrowed in scope
by the court as to time and place. The court set a December 30,
1988 deadline for Otis to comply.
Otis answered the interrogatories and responded to the
requests for production. Northward was not satisfied with Otis'
responses and, on January 20, 1989, made a motion for an order of
sanctions. Northward argued its request for production of
documents for "this elevator or similar elevators"was narrowly
construed by Otis.
At oral argument, the court construed "similar"to mean
"an elevator that operates basically the same as this elevator."
On the other hand, Otis construed "similar"to mean "electric
geared elevators which, like the subject elevator, are equipped
with a 10 UCL controller and with a 6850C selector." Otis
produced information concerning 958 elevators located throughout
the country that were known to fit this description. In opposing
the motion for sanctions, Otis argued that elevators having
different controllers and selectors were significantly different
from the elevator under dispute.
In its motion supporting sanctions, Northward argued
that Otis purposefully omitted producing information concerning
similar elevators in Sacramento, where Northward's expert
resided. In response to this allegation, Otis stated it compiled
the information concerning the 958 elevators similar to that
involved in this case from forms available at Otis' home office,
and that some of these forms were not completely filled out.
Otis noted that Northward inspected documents only in Anchorage
and indicated no interest in viewing documents at any other
locations where documents were available.
The trial court granted sanctions striking Otis'
defenses on the issue of liability. The court found that Otis
"has been willful in failing to produce discovery throughout the
course of this litigation from the outset." The court also found
that Otis too narrowly construed the term "similar":
Any realistic reading of any of the
requests for production, at the very least,
Otis should have said something like, we
don't know if this elevator in this building
has a 10UCL selector, 'cause we don't keep
information that way -- or mechanism -- but
it does have a 6850 selector.
Civil Rule 37(b)(2) allows sanctions to be imposed when
a party fails to comply with a court order requiring discovery:
If a party . . . fails to obey an order
to provide or permit discovery, . . . the
court in which the action is pending may make
such orders in regard to the failure as are
just, and among others the following:
(A) An order that the matters
regarding which the order was made or any
other designated facts shall be taken to be
established for the purposes of the action in
accordance with the claim of the party
obtaining the order[.]
An order that imposes liability on a defendant is an
extreme sanction which should be used only in extreme cases.
This is not such a case. It is arguable that Otis complied with
the order compelling discovery of November 8, 1988. To the
extent that it may have fallen short of compliance by too
narrowly interpreting what was meant by a "similar"elevator, its
non-compliance seems trivial. Northward did not indicate an
interest in inspecting the more than 900 files outside of
Anchorage pertaining to the same model elevator. It therefore
seems unlikely that Northward was interested in going even
further afield and inspecting the many volumes of files
concerning elevators which may broadly be similar, but have
different controllers and selectors. If, however, that was
Northward's goal, the court should have issued a clarifying
The court's statement that Otis intentionally failed to
make discovery from the outset of this litigation is too general
to serve as a basis for affirming the order. The subject of the
motion for sanctions was whether Otis had failed to comply with
the order of November 8, 1988, not Otis' attitude in the
In summary, there has been no demonstration in this
case of willful non-compliance with a discovery order, which, as
distinct from delay, inability, or good faith resistance, is
necessary to justify litigation-ending sanctions. For these
reasons, the order imposing sanctions against Otis is vacated.
II. Independent Finding of Negligence
Following the entry of the sanctions order, a trial was
scheduled on Garber's negligence claims against Northward, on her
punitive damages claim against Otis, and to determine
compensatory damages. Otis' counsel sought permission to present
evidence of Northward's negligence as a defense to Northward's
indemnity claim, but the court ruled that Otis could only put on
testimony that Northward's conduct was so outrageous that the
court should relieve Otis of the preclusion order. Otis then
assumed the defense of Northward. At trial, Garber sought to
prove her claims against Northward and her punitive damages claim
against Otis. Northward, defended now by Otis' counsel, argued
that Garber was comparatively negligent.
Judge Hodges made the following factual findings at the
end of trial:
[T]he court specifically finds that the
Northward Operating Company has a non-
delegable duty to see that the elevator
service in the building operated
correctly. . . .
The court specifically finds that the
judgment which will be awarded in favor of
plaintiff is as to both Northward and Otis
because of the non-delegable duty. The court
does not find any independent negligence on
the part of the Northward Operating Company.
. . . .
The court does not find that there
is a product defect with respect to the
elevator. The court, however, does find that
Otis was negligent, even though the court
granted plaintiff motion for liability based
on the discovery violation.
The court finds that it was negligence
on the part of Otis not to better maintain
the elevator and that negligence was the
legal cause of the elevator misleveling, and
the legal cause of the injuries sustained by
The court specifically finds that
plaintiff was not negligent.
We find that Otis is bound by Judge Hodges' conclusion
that it was negligent. One of plaintiff's theories of liability
against Northward is that Northward had a non-delegable duty and
is therefore vicariously liable to Garber because of the
negligence of Otis. Judge Hodges accepted this theory. Otis,
which assumed the defense of Northward, had an opportunity to
defend against this theory on the grounds that Otis was not
negligent. Having failed in this effort, Otis is bound by the
result. See Restatement (Second) Judgments 57 (1982).
Otis also claims that Judge Hodges' order limiting the
testimony of its expert, Red Matthews, to his deposition, was
erroneous. This order was imposed as a sanction against Otis
because when Otis presented Matthews for his deposition, Matthews
had not yet inspected the elevator. When Otis assumed
Northward's defense, it had the opportunity, on behalf of
Northward, to elicit Matthews' observations of the elevator based
on an inspection, since Northward was not bound by the sanction
limiting Matthews' testimony. Thus Otis' claim of error on this
point is moot.
We cannot conclude, however, that the proceedings
allowed a determination of Otis' defense that Northward was
independently negligent. Judge Hodges specifically restricted
Otis to the presentation of evidence that Northward's conduct was
so outrageous that the court should lift the sanction requiring
Otis to indemnify Northward. Therefore, Otis was denied the
opportunity to present evidence that may have shown that
Northward's independent negligence contributed to Garber's
injuries. Negligence on the part of a tortfeasor indemnitee bars
its claim to indemnity. See, e.g., Koehring Mfg. Co. v.
Earthmovers of Fairbanks, Inc., 763 P.2d 499, 503 (Alaska 1988);
Vertecs Corp. v. Reichhold Chemicals, Inc., 661 P.2d 619 (Alaska
1983). On remand, there must be a trial on the issue of
Northward's independent negligence.
The superior court awarded Garber compensatory damages
totalling $104,2002 plus interest, costs and attorney's fees. In
addition, the court found that the injury was not the legal cause
of the non-vesting of Garber's pension and declined to award
Both Garber and Otis challenge the superior court's
decision regarding damages. Such an award is reviewed using a
clearly erroneous standard. Civil Rule 52(a). "A finding is
clearly erroneous when, although there may be evidence to support
it, we are left with the definite and firm conviction on the
entire record that a mistake has been committed." Alaska Foods,
Inc. v. American Manufacturer's Mutual Insurance Co., 482 P.2d
842, 848 (Alaska 1971).
The testimony as to damages included a report submitted
by Garber's economist, who also testified at trial. Additional
evidence included testimony from Garber's doctor, an employment
therapist, and Garber herself. With one exception, Judge Hodges'
award was not clearly erroneous.3 The exception is the award of
only $5,000 for Garber's future medical expenses.
Economist Chris Fawson obtained information from
Garber's physician, Dr. Lindig, regarding her medical and
pharmacy expenses from the accident to the date of the trial.
Fawson testified that Lindig believed that Garber's average
medical costs will remain approximately the same throughout her
life, and calculated the cost of physician services for the
remainder of her life to be $42,241. Relying on one month's
pharmaceutical bill, Fawson calculated future pharmaceutical
expenses to be $42,108, for a total future medical cost of
$84,349. The court awarded $5,000.
While it is not clear that an award of the full $84,000
would be required, no basis is apparent from the evidence or from
the trial court's findings which justifies a finding of only
$5,000 for Garber's future medical expenses. This award should
be re-evaluated on remand.
The superior court's order entering sanctions against
Otis is REVERSED. The judgment in favor of Garber against
Northward and Otis is AFFIRMED as to liability and as to damages
except as noted hereafter. The award for future medical expenses
is VACATED. On remand, the court should re-evaluate such damages
and may, in its discretion, take additional evidence concerning
them. Further, the court should make findings concerning
Garber's claim for loss of medical insurance coverage. The
judgment in favor of Northward against Otis on Northward's cross-
claim for indemnity is REVERSED.4 On remand, Otis' defense of
independent negligence on the part of Northward shall be tried.
1 Alaska Civil Rule 26(a) states in relevant part,
"[w]ritten interrogatories pursuant to Rule 33 of these rules are
limited to thirty questions, which shall include paragraphs and
subparagraphs." We interpret 26(a)'s limitation on
interrogatories to mean that no more than thirty separate answers
may be required without court approval. Here, there were twenty-
five numbered questions; but according to Otis, if the sub-
questions are counted there are fifty-one questions. However in
this case, the superior court granted approval for requiring
2 Specifically the court's award breaks down as follows:
$5,000 past medical expenses; $5,000 future medical expenses;
$3,500 employment retraining; $2,700 1986 lost income; $7,000
1987 lost income; $3,500 1988 lost income; $1,000 pre-trial 1989
lost income; $2,500 post-trial 1989 lost income; $3,000 1990 lost
income; $3,000 1991 lost income; $15,000 lost pension benefits;
$5,000 pre-trial loss of enjoyment of life; $20,000 post-trial
loss of enjoyment of life; $7,500 pre-trial pain and suffering;
and, $20,000 post-trial pain and suffering.
3 Garber contends that Civil Rule 52(a), as interpreted in
our decision in Merrill v. Merrill, 368 P.2d 546 (Alaska 1962),
requires this case to be remanded for more extensive findings of
fact supporting the judgment. This argument lacks merit.
Although Judge Hodges' findings were not extensive, they provided
a sufficient basis for our review. We, however, agree with
Garber that additional findings are necessary concerning her
claim for damages for loss of medical insurance coverage since
Judge Hodges did not make any findings regarding this claim.
This should be remedied on remand.
4 In light of this decision, the order requiring Otis to pay
Northward's attorney's fees and costs must be vacated.