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Luedtke v. Nabors AK Drilling, Inc. (5/29/92), 834 P 2d 1220
Notice: This is subject to formal correction
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THE SUPREME COURT OF THE STATE OF ALASKA
PAUL M. LUEDTKE, )
) Supreme Court File No. S-3828
Appellant, ) Superior Court File No.
) 3AN-83-9147 Civil
NABORS ALASKA DRILLING, INC., ) O P I N I O N
Appellee. ) [No. 3844 - May 29, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Peter A. Michalski, Judge.
Appearances: Charles W. Coe and Michael
Smith, Anchorage, for Appellant. Mary
Poteet, Winner & Associates, Anchorage, for
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
Paul M. Luedtke was suspended and then terminated from
his employment with Nabors Alaska Drilling, Inc.
(Nabors) after testing positive for marijuana use in a
urinalysis. This court upheld Nabors' termination of
Luedtke in Luedtke v. Nabors Alaska Drilling, Inc., 768
P.2d 1123 (Alaska 1989) (Luedtke I), but the case was
remanded for a determination of whether Luedtke's
suspension violated the covenant of good faith and fair
On remand, the superior court found that Nabors did not violate
the covenant of good faith and fair dealing when it
suspended Luedtke. The court also imposed sanctions
against Luedtke and his attorney pursuant to Alaska
Civil Rules 11 and 95(a), and awarded attorney's fees
pursuant to Alaska Civil Rule 82. Luedtke appeals the
judgment in its entirety. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts leading up to Luedtke's suspension and
termination are detailed in Luedtke I, 768 P.2d at 1125-
26, and will not be repeated. Our instructions to the
superior court on remand left one issue to be decided:
The question whether Paul's suspension
breached the covenant of good faith and fair
dealing is for the trier of fact. On remand,
the trial court should determine whether the
covenant has been breached, taking additional
evidence if necessary.
Id. at 1137 (citation omitted). We remanded the issue of
Luedtke's suspension in part because it was based on
different facts than the termination, and the superior
court had not applied the covenant of good faith and
fair dealing to those facts.
After a failed attempt at settlement, Nabors filed a
motion in limine seeking an order limiting Luedtke's
remedies on remand. The court entered an order which
declared that Luedtke would not be entitled to
reinstatement of employment or lost wages after
November 30, 1982, the date he was lawfully terminated.
The court denied Luedtke's request for a four-day trial
on the suspension and damages issue, and instead
ordered the parties to brief the issues of whether
Luedtke's suspension violated the covenant of good
faith and fair dealing, and if so, what damages would
In his later Position Memorandum on Remand, Luedtke
asked to present additional evidence that Nabors
breached the covenant of good faith and fair dealing,
and asked that the court consider the appropriate
remedy. Luedtke continued to assert that he was
entitled to reinstatement and back pay as a remedy for
breach. Nabors asserted in response that Luedtke had
not been suspended in bad faith, and simultaneously
moved for costs and attorney fees pursuant to Civil
Rules 11 and 95(a), asserting that Luedtke's arguments
were frivolous because he presented no evidence of bad
faith and because the remedies he sought had been
precluded when its Motion in Limine was granted.
The superior court held a hearing on September 21,
1989. Luedtke again asked for an evidentiary hearing
to prove damages, and also to show that he was treated
differently from other employees. Nabors opposed
introduction of any new evidence, and asserted that the
only issues relevant to its good faith and fair dealing
were the timing and notice of the test.
The superior court ruled in favor of Nabors on the good
faith and fair dealing issue. The court also granted
Nabors' motion for costs and attorney's fees under
Civil Rules 11 and 95(a) in the amount of $8,578.11,
but issued no findings to support that award. Nabors
then moved for attorney's fees under Civil Rule
82(a)(1), which the superior court granted in the
amount of $3,500.00.
II. NABORS' SUSPENSION OF LUEDTKE VIOLATED THE
COVENANT OF GOOD FAITH AND FAIR DEALING
A. Standard of Review.
Whether Luedtke's suspension breached the covenant of
good faith and fair dealing is a question for the trier
of fact. Luedtke I, 768 P.2d at 1137. Normally we
review such questions only for clear error. Alaska
Civil R. 52(a). "However, we may review the
application of a legal doctrine to undisputed facts
without the usual deference to the superior court."
Foss Alaska Line, Inc. v. Northland Servs., 724 P.2d
523, 526 (Alaska 1986). While there are still disputed
facts in this case, the record on remand now reflects
several undisputed facts relevant to Luedtke's
suspension: Luedtke had no notice that his urine would
be tested for drugs; Luedtke's drug test was not
performed contemporaneously with his work schedule;
and, Luedtke was suspended after his urine tested
positive for marijuana, but before he was given the
option of a retest or any other options. Thus, we may
review de novo the superior court's determination that
these facts do not prove a violation of the covenant of
good faith and fair dealing.
In finding that Luedtke's suspension did not violate
the covenant, the superior court reasoned that "Nabors
had no other alternative but to suspend Mr. Luedtke
immediately." It stated that sending Luedtke to the
work site would have compromised the safety of Nabors'
employees and compromised Nabors in any litigation that
resulted from an accident involving Luedtke. However,
in reaching this conclusion, the superior court
misapplied the covenant of good faith and fair dealing
and misconstrued our instructions on remand.
B. The Covenant of Good Faith and
We have recognized a covenant of good faith and fair
dealing in all at-will employment contracts. Mitford
v. de Lasala, 666 P.2d 1000, 1007 (Alaska 1983). "This
covenant does not lend itself to precise definition,
but it requires at a minimum that an employer not
impair the right of an employee to receive the benefits
of the employment agreement." Jones v. Central
Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska 1989).
The covenant is breached, for example, if an employee
proves that the employer fired the employee "for the
purpose of preventing him from sharing in future
profits" to which the employee is entitled. Mitford,
666 P.2d at 1007. In Hagans, Brown & Gibbs v. First
National Bank of Anchorage, 783 P.2d 1164 (Alaska
1989), we held that an attorney's client could be
subject to liability for attorney's fees "if it can be
shown that the [client's] decision to settle or not
settle [the case] was made with the intent of taking
advantage of the attorney." Id. at 1168. Mitford,
Jones and Hagans establish that if it is proved that an
employer's motive in firing an employee is to deprive
the employee of the economic benefits of the contract,
it is per se a bad faith termination. These decisions
focus on the intent of the employer in evaluating
whether bad faith exists, and uphold a finding of bad
faith when the record supports a finding of an improper
Mitford, Jones and Hagans, however, do not limit breach
of the covenant of good faith and fair dealing to those
circumstances. In Jones, we noted that the covenant of
good faith and fair dealing "also requires that an
employer treat like employees alike." Jones, 779 P.2d
at 789 n.6. See also Rutledge v. Alyeska Pipeline
Serv. Co., 727 P.2d 1050, 1056 (Alaska 1986). We have
held that proof that an employee was fired for an
unconstitutional reason "amounts to unfair dealing as a
matter of law." State v. Haley, 687 P.2d 305, 318
(Alaska 1984). In Luedtke I, 768 P.2d at 1130, we also
stated that proof that a private employer's violation
of a public policy could constitute a breach of the
covenant of good faith and fair dealing.
These cases, rather than focusing on the intent of the
employer, indicate that the covenant of good faith and
fair dealing also requires the parties to act in a
manner which a reasonable person would regard as fair.
Indeed, in ARCO Alaska, Inc. v. Akers, 753 P.2d 1150,
1156 (Alaska 1988), this court upheld a jury
instruction in which the judge stressed that an
employer's discretion must be "exercised reasonably and
in good faith"and that the employer's decisions must
be made "fairly and in good faith."(Emphasis added.)
In Klondike Indus. Corp. v. Gibson, 741 P.2d 1161, 1168
(Alaska 1987), we cited with approval excerpts from the
Restatement of Contracts:
Subterfuges and evasions violate the
obligation of good faith in performance even
though the actor believes his conduct to be
justified. But the obligation goes further:
bad faith may be overt or may consist of
inaction, and fair dealing may require more
Restatement (Second) of Contracts 205 comment d (1981).
Thus, our cases establish that the covenant of good
faith and fair dealing includes multiple expectations
about the behavior of the parties to a contract.
The Uniform Commercial Code's requirement of good faith
and fair dealing in the case of merchants, contained in
section 2-103, requires more than just absence of evil
motive. "`Good faith' in the case of a merchant means
honesty in fact and the observance of reasonable
commercial standards of fair dealing in the trade."
U.C.C. 2-103(1)(b).1 Courts and commentators which
have addressed the issue say that this imposes an
objective as well as a subjective standard.2
C. Our Instructions on Remand.
In Luedtke I, we considered the issue of whether
Nabors' decision to fire Paul Luedtke (and his brother
Clarence) violated the covenant of good faith and fair
dealing based on the claim that Nabors' drug tests
intruded upon their privacy:
We conclude that there is a public
policy supporting the protection of employee
privacy. Violation of that policy by an
employer may rise to the level of a breach of
the implied covenant of good faith and fair
dealing. However, the competing public
concern for employee safety present in the
case at bar leads us to hold that Nabors'
actions did not breach the implied covenant.
Luedtke I, 768 P.2d at 1130. We noted, however, that there are
limits on the employer's right to invade the privacy of
an employee, even if the employer has a legitimate
concern for the health and safety of other workers. We
held that a "drug test must be conducted at a time
reasonably contemporaneous with the employee's work
time"and that "an employee must receive notice of the
adoption of a drug testing program." Id. at 1136-37.
In the case of Luedtke's termination, these
considerations did not apply. Luedtke was fired after
refusing to take a drug test for which he had ample
notice and which would have been reasonably
contemporaneous with his work schedule. However, in
remanding the case for consideration of whether
Luedtke's suspension violated the covenant of good
faith and fair dealing, we suggested that the factors
of timing and notice should have been taken into
account by the superior court.
On remand, the superior court did not take those
factors into account. Indeed, the superior court
acknowledged that its analysis of Luedtke's suspension
was little different from our analysis of Luedtke's
The supreme court has held that the
termination for refusal to take the drug
tests did not violate the implied covenant of
good faith dealing [sic] in this case because
of the competing public concern for employee
safety. . . . Whether suspension of Mr.
Luedtke because of the discovery of
cannabinoids in his blood is a violation of
the covenant is a closely related, but not
precisely the same, question.
Luedtke v. Nabors Alaska Drilling, Inc., No. 3AN-83-9147 Civ.,
slip op. at 2 (Alaska Super. Nov. 7, 1989). The court
went on to conclude that suspending Luedtke was not a
violation of the covenant of good faith and fair
dealing because Nabors had a legitimate concern for the
safety of its employees. While the court stated that
the question of the suspension was "not precisely the
same" as the question of the termination, in fact it
treated the questions as identical. This did not
comport with our instructions. Had we concluded that
the questions were identical, we could have resolved
the issue of the suspension when the case was first
before us. Instead, we must resolve that issue now.
D. Luedtke's Suspension.
Nabors argues that Luedtke's suspension did not violate
the covenant of good faith and fair dealing because
breach of the covenant requires subjective bad faith on
the part of the employer, and there is no evidence of
subjective bad faith in the record with respect to the
timing of or lack of notice prior to Luedtke's drug
test. For this proposition, Nabors relies on the
California Supreme Court's discussion of the covenant
of good faith and fair dealing in Foley v. Interactive
Data Corp., 765 P.2d 373 (Cal. 1988). The issue
decided by the sharply divided California court in
Foley, however, was whether a breach of the covenant
could give rise to tort damages, an issue previously
decided in Alaska. See Akers, 753 P.2d at 1153-54.
The Foley court was only peripherally concerned with
the issue of what constitutes a breach of the covenant,
which is the issue in this case, and for which there is
Alaska precedent. Furthermore, to the extent Foley
does discuss that issue, it recognizes that subjective
bad faith is not always required. Foley, 765 P.2d at
400. Thus, Nabors' reliance on Foley is misplaced.
We agree that there is no evidence of subjective bad
faith on Nabors' part, but as we have already stated,
the covenant of good faith and fair dealing also
requires that the employer be objectively fair. The
superior court found that Luedtke was tested for drug
use without prior notice, that no other employee was
similarly tested, and that Nabors suspended Luedtke
immediately upon learning of the results of the test.
Nabors does not dispute these findings. We hold that
as a matter of law, these facts constitute a violation
of the covenant of good faith and fair dealing.
As we stated in Luedtke I:
[a]n employee must receive notice of the
adoption of a drug testing program. By
requiring a test, an employer introduces an
additional term of employment. An employee
should have notice of the additional term so
that he may contest it, refuse to accept it
and quit, seek to negotiate its conditions,
or prepare for the test so that he will not
fail it and thereby suffer sanctions.
768 P.2d at 1137 (footnote omitted). There is evidence in the
record that Luedtke might have followed at least one,
if not more, of these alternative paths had he received
notice of the new drug testing program. Nabors insists
that Luedtke would have refused to take the test and
quit. However, Luedtke presented evidence on remand to
show that he has more recently taken several drug tests
with negative results. Presumably, those were tests
for which he had notice, and for which he prepared.
Nabors' failure to give notice of the test was
objectively unfair to Luedtke.3
The superior court found that Luedtke did not have
notice prior to being tested, and Nabors does not
dispute this. Luedtke and Nabors agree that this
testing was the cause of Luedtke's suspension. The
superior court should have concluded, therefore, that
in suspending Luedtke, Nabors breached the covenant of
good faith and fair dealing.
Breach of the covenant of good faith and fair dealing
results in contract damages. Akers, 753 P.2d at 1154.
"The goal of contract damages is to place the
nonbreaching party in as good a position as if the
contract had been fully performed." Alyeska Pipeline
Serv. Co. v. H.C. Price Co., 694 P.2d 782, 787 (Alaska
1985). In the case of wrongful discharge, this
generally means that the employee "is entitled to the
total amount of the agreed upon salary for the
unexpired term of his employment, less what he could
earn by making diligent efforts to obtain similar
employment." Skagway City School Bd. v. Davis, 543
P.2d 218, 225 (Alaska 1975), overruled on other
grounds, Diedrich v. City of Ketchikan, 805 P.2d 362,
366 (Alaska 1991). Where the employee is wrongfully
suspended rather than discharged, the employee is still
under contract to the employer and need not mitigate
damages by seeking other employment. Thus, Luedtke may
be entitled to back pay.
However, Luedtke was fired justifiably by Nabors for
failing to take a drug test on November 30, 1982.
Luedtke I, 768 P.2d at 1137. Any damages he may have
suffered after that date were a result of his lawful
termination and were caused by his own refusal to
comply with reasonable company policy. Luedtke argues
that he should be entitled to reinstatement as a remedy
for the suspension apart from any remedies for his
termination. This position, if adopted, would make it
impossible for an employer to cure a wrongful act.
Here Nabors impermissibly suspended Luedtke, but then
attempted to cure the problem by offering Luedtke a
legitimate retest. Nabors was, in a sense, mitigating
its own damages. We decline to hold that an employer
may never mitigate damages.
Luedtke may not recover for damages not caused by
Nabors' breach of the covenant of good faith and fair
dealing. Further, his damages may not exceed wages
lost between November 5, 1982, the date of his
suspension, and November 30, 1982, the date of his
lawful termination, as well as any incidental damages
he can prove. Because the superior court made no
findings as to cause or damages, we must remand the
case for a determination of these two issues.
III. THE TRIAL COURT ERRED IN IMPOSING
SANCTIONS ON LUEDTKE
The superior court awarded Nabors costs and attorney's
fees in the amount of $8,578.11. Since the court did
not specify under which rule it made this award, we
will treat the award as falling under Alaska Civil Rule
11.4 This court normally reviews the award of
sanctions under Rule 11 for abuse of discretion. Keen
v. Ruddy, 784 P.2d 653, 658 (Alaska 1989). Here,
however, the superior court's sanctions order was
improperly entered without factual findings and without
a hearing. "[W]here sanctions are to be imposed,
courts should, as a matter of sound practice, make a
clear record concerning the reason for imposing the
particular sanction and the authority relied upon to do
so. Failure to do so may require a reversal and remand
for entry of such findings." Esch v. Superior Court,
577 P.2d 1039, 1043 (Alaska 1978). Luedtke should have
been given the opportunity to contest the sanction
award at a hearing, and the superior court should have
indicated its reasons for imposing the sanction,
especially since the amount of the award was
significant.5 Thus, our normal procedure would be to
remand the award of sanctions to the superior court for
entry of findings.
We decline to remand in this case, however, because we
find no evidence in the record which could possibly
support an entry of sanctions under Rule 11. At the
time the superior court ordered the sanctions against
Luedtke, Alaska Civil Rule 11 was identical to Federal
Rule of Civil Procedure 11. It provided in relevant
Every pleading, motion and other paper
of a party represented by an attorney shall
be signed by at least one attorney of record.
. . . The signature of an attorney or party
constitutes a certificate by him that he has
read the pleading, motion, or other paper;
that to the best of his knowledge,
information, and belief formed after
reasonable inquiry it is well grounded in
fact and is warranted by existing law or a
good faith argument for the extension,
modification, or reversal of existing law,
and that it is not interposed for any
improper purpose, such as to harass or to
cause unnecessary delay or needless increase
in the cost of litigation. . . . If a
pleading, motion, or other paper is signed in
violation of this rule, the court, upon
motion or upon its own initiative, shall
impose upon the person who signed it, a
represented party, or both, an appropriate
sanction, which may include an order to pay
to the other party or parties the amount of
the reasonable expenses incurred because of
the filing of the pleadings, motions, or
other paper, including a reasonable
Rule 11 "creates an objective standard of `reasonableness under
the circumstances,' and is intended to be more
stringent than a mere `good faith' formula." Keen, 784
P.2d at 658 (quoting Golden Eagle Distrib. Corp. v.
Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir. 1986).
It is not necessary to show willful misconduct or
subjective bad faith in order to impose sanctions.
Rather, one must inquire whether there was a reasonable
basis for the attorney's signature at the time the
paper was submitted. Alaska Fed. Sav. & Loan v.
Bernhardt, 794 P.2d 579, 583 (Alaska 1990).
The sanction awarded was the full amount requested by
Nabors to compensate Nabors for filing three documents:
an opposition to Luedtke's request for trial, a motion
in limine regarding remedies, and a position memorandum
on remand. Nabors claimed that these filings were only
necessary because Luedtke adhered to several frivolous
arguments on remand. The arguments complained of
included Luedtke's claim that he was entitled to
reinstatement and back pay as a remedy for his
suspension, and Luedtke's claim that Nabors'
discriminatory treatment of him constituted a violation
of the covenant of good faith and fair dealing. Nabors
asserts that these arguments were precluded by our
prior decision in this case, as well as by orders of
the superior court. Nabors also argues that Luedtke's
pursuit of this case on remand was not for any
legitimate purpose because he rejected a settlement
offer worth far more than his claim simply to harass
Nabors. Nabors asserts that Luedtke purposely delayed
the litigation so that he could refile bankruptcy in
case he lost. We disagree. First,
there is no evidence to support the allegation that
Luedtke purposely delayed the litigation so that he
could avoid liability by filing bankruptcy. The
briefing schedule on all issues was established by the
superior court, and Luedtke's requests for extensions
are supported by uncontroverted affidavits and resulted
in a total delay of only a few weeks. Second, nothing
in our prior decision in this case could be read to
preclude Luedtke from arguing that his suspension
violated the covenant of good faith and fair dealing
because he was treated differently than other
employees. On the contrary, consideration of such an
argument was the express purpose of our remand.
Finally, Luedtke should not be sanctioned for seeking
reinstatement and back pay as remedies for his
suspension. Luedtke I never discussed damages for
improper suspension. Luedtke had a reasonable basis
for seeking these remedies because there is no Alaska
case law defining the limits of damages for suspension
Nabors further argues that the purpose of its motion in
limine was to refine the issues on remand, so that
after the superior court ordered that back pay after
November 30, 1982, and reinstatement were not possible
remedies, Luedtke should have ceased to argue for them.
We agree that Luedtke might have followed a different
course of action, such as to petition for review of the
superior court's order, wait until final judgment to
challenge it on appeal, or waive the issue. We do
not, however, find his behavior sanctionable. The
record reflects that Luedtke's attorney was engaging in
zealous advocacy on behalf of his client, not
frivolity, in continuing to press the issue of
remedies. And to the extent that Nabors argues that
any argument contrary to the court's order limiting
remedies would be frivolous, it is incorrect. The
trial court always has the power to "revise or reverse
interlocutory rulings deemed erroneous." C.J.M.
Constr. v. Chandler Plumbing & Heating, 708 P.2d 60, 61
n.1 (Alaska 1985). The doctrine of "law of the case"
is a matter of judicial policy, not law, and "merely
expresses the practice of courts generally to refuse to
reopen what has been decided, not a limit to their
power." Stepanov v. Gavrilovich, 594 P.2d 30, 36
(Alaska 1979) (quoting Messinger v. Anderson, 225 U.S.
436, 444 (1912) (opinion of Holmes, J.)). Thus, the
award of sanctions is reversed.
IV. ATTORNEY'S FEES ON REMAND
The superior court awarded Nabors $3,500 in attorney's
fees under Alaska Civil Rule 82. Rule 82(a) allows for
recovery of attorney's fees by a "prevailing party."
There is no assertion by Nabors that this request for
fees covers anything but its work on remand of this
case. Since we conclude that Nabors did violate the
covenant of good faith and fair dealing in suspending
Luedtke, Nabors cannot be considered the prevailing
party on remand. Thus, the award of $3,500 in
attorney's fees under Rule 82 is vacated.
The judgment of the superior court is REVERSED. The
case is REMANDED for further proceedings consistent
with this opinion.
1. Alaska has adopted this provision of the U.C.C., found
at AS 45.02.103(a)(2).
2. See In re Martin Specialty Vehicles, 87 Bankr. 752, 765-
66 (Bankr. D. Mass. 1988), rev'd on other grounds, 97
Bankr. 721, 729 (D. Mass. 1989); Ledbetter v. Darwin
Dobbs Co., 473 So.2d 197, 201 (Ala. App. 1985); W.
Hawkland, Uniform Commercial Code Series 2-103:02
(1984 & Supp. 1991); J. White & R. Summers, Uniform
Commercial Code 6-3, at 286-87 (3d ed. 1988).
Contra, Richard Short Oil Co. v. Texaco, 799 F.2d 415,
422 (8th Cir. 1986) (requiring "prohibited motive"for
breach under Arkansas law).
3. Because we conclude that Nabors violated the covenant,
we need not address Luedtke's further argument that the
superior court erred in not considering whether Luedtke
was treated differently than other employees in similar
circumstances. We do note, however, that the superior
court should have addressed this argument. There was
evidence that Luedtke was not given the same options
after his drug test came up positive as were other
employees. Luedtke wished to present additional
evidence on this issue on remand. Nabors claims that
the superior court did not err in refusing to take
additional evidence on differential treatment because
that would not be relevant to whether it acted fairly
and in good faith. Nabors' position is inconsistent
with our earlier cases on good faith and fair dealing.
See Jones, 779 P.2d at 789 n.6; Rutledge, 727 P.2d at
4. Nabors also requested an award of costs and attorney's
fees under Alaska Civil Rule 95(a). We have never had
occasion to review this rule. However, an award under
Rule 95(a) must be based on a violation of another
civil rule. In this case, Nabors alleges only that
Luedtke violated Rule 11. Thus, regardless of whether
the award is considered to be sanctions for a direct
violation of Rule 11, or costs and attorney's fees
under Rule 95(a) as a result of a violation of Rule 11,
this court must review whether a Rule 11 violation
5. Nabors argues that a hearing was held on the sanctions
in this case, presumably referring to the superior
court's hearing on the merits of Luedtke's claim. To
the extent that the issue of sanctions was mentioned at
all at that hearing, it was raised only briefly by
Nabors' counsel. There is no indication in the record
of the trial judge having considered the issue, or of
Luedtke being given the opportunity to address it. The
record indicates that the only notice given Luedtke
that the issue of sanctions might be considered at that
hearing was mailed by Nabors' counsel three days before
the hearing itself, making it untimely. See Alaska R.
Civ. P. 77(d).
6. Rule 11 has since been amended to delete the last
sentence, which had mandated sanctions for a violation
of the rule.