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Parson v. Marathon Oil Co. (7/2/98), 960 P 2d 615

     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.


her Capacity as the Personal  )    Supreme Court No. S-7894
Representative of the Estate  )
of Gary Lloyd Wilson; Sabrina )    Superior Court No.
Wilson and Desirea Wilson,    )    3KN-95-599 CI
Minor Children by and through )
their Next Friend and Natural )
Guardian, Cheryl Parson; and  )
Cory Wilson,                  )    
                              )    O P I N I O N
               Appellants,    )
                              )    [No. 5007 - July 2, 1998]
     v.                       )
MARATHON OIL COMPANY,         )     
               Appellee.      )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Jonathan H. Link, Judge.

          Appearances:   Jim M. Boardman, Brena &
McLaughlin, P.C., Anchorage, and Cathleen Nelson McLaughlin,
Hagans, Ahearn, McLaughlin & Webb, Anchorage, for Appellants. 
Michael C. Geraghty and Sarah Diemer Moyer, DeLisio Moran Geraghty
& Zobel, Anchorage, for Appellee. 

          Before:  Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.

          PER CURIAM.

          Cheryl Parson sued Marathon Oil Company (MOC) for the
wrongful death of her ex-husband, Gary Wilson.  MOC moved for
summary judgment, arguing that its conduct was not the proximate
cause of Wilson's death.  The superior court held a hearing at
which it granted Parson time to file a supplemental brief on the
issue of whether Alaska should adopt the loss-of-chance doctrine. 
After numerous deadlines for Parson to file the supplemental brief
had passed, Parson requested Alaska Civil Rule 56(f) relief.  The
court granted MOC's motion for summary judgment, thereby implicitly
denying Parson's motion for Rule 56(f) relief.  Parson appeals both
the court's grant of summary judgment to MOC and its denial of her
request for Rule 56(f) relief.  We conclude that it was an abuse of
discretion to deny Parson Rule 56(f) relief.  We reverse the
court's decision and remand for further proceedings.  
     A.   Facts
          In July 1993 Gary Wilson was employed by Alaska Petroleum
Contractors (APC).  He was assigned to work on the Dolly Varden oil
platform, located in the Cook Inlet.  While working on the Dolly
Varden platform, Wilson slept and ate his meals on the Steelhead
platform.  MOC owns and operates the Dolly Varden and Steelhead
platforms.  On July 19, 1993, after Wilson finished work on the
Dolly Varden platform, he returned to the Steelhead platform to eat
and sleep.
          At approximately 1:30 A.M. on July 20 Wilson informed
Derik W. Barefield, foreman/supervisor for APC, that he was having
chest pains.  Joe Chumley, Emergency Medical Technician (EMT) for
MOC, was contacted.  Barefield and Chumley monitored Wilson by
taking his pulse and talking with him.  At approximately 2:50 A.M.
Chumley called for Ray Schemanski, a MOC production foreman.
Schemanski was awakened, told that Wilson was not feeling well, and
asked to take a look at Wilson.  Schemanski checked Wilson's pulse
and asked the men a few questions.  According to Schemanski, Wilson
was "full[y] alert and basically said he wasn't feeling well, [that
his pain] kind of felt like indigestion."  At 3:02 A.M. Schemanski
decided to call for an emergency helicopter to take Wilson off the
platform in order to get him "checked out."  Barefield left with
Wilson in the helicopter.  At approximately 4:45 A.M. the
helicopter arrived at Central Peninsula General Hospital in
Soldotna.  Wilson was pronounced dead at approximately 5:26 A.M. 
          Dr. Donald R. Rogers performed an autopsy on Wilson.  Dr.
Rogers's final diagnosis stated that Wilson's death was caused by:
          1)   Ruptured thoracic dissecting aortic
aneurysm secondary to cystic media necrosis.
          2)   Calcific aortic stenosis.
          3)   Severe coronary arteriolosclerosis with
diffuse myofibrosis.
          4)   Pulmonary emphysema.     
In his affidavit, Dr. Rogers stated that it was 
          worth emphasizing that Mr. Wilson had severe
heart disease at the time of his death.  His heart was markedly
enlarged, secondary to severe calcific aortic stenosis, or
hardening of the aortic valve.  He also had severe
arteriolosclerosis which is a thickening and hardening of the small
arteries serving the heart.  This led, in turn, to myocardial
     B.   Proceedings
          In July 1995 Cheryl Patricia Parson, as personal
representative of Wilson's Estate and of their minor children
Sabrina and Desirea Wilson, filed suit against Marathon Petroleum
Company (MPC) and Era Aviation, Inc. (Era). [Fn. 1]  MPC filed a
motion to dismiss because MPC did not have an "interest or
connection with the offshore platform in question which could
conceivably give rise to any liability."  Parson opposed MPC's
motion to dismiss; in the alternative, Parson moved to substitute
MOC for MPC.  In February 1996 the court granted Parson's motion to
substitute MOC for MPC. 
          In March 1996 MOC moved for summary judgment. [Fn. 2]  In
support of its motion MOC argued that, even if it owed and breached
a duty to Wilson, its breach was not a proximate cause of Wilson's
death.  MOC supported its motion with the affidavit from Dr.
Rogers, who performed Wilson's autopsy.  Dr. Rogers opined that
"different treatment during this period or faster evacuation of Mr.
Wilson to Central Peninsula General Hospital, or any other hospital
in Alaska, would not have changed the outcome, and he would have
died on July 20."  In opposing summary judgment, Parson presented
an affidavit from Dr. Stephen Hubbard.  Dr. Hubbard opined that
"[b]ased on the skills of the Starr cardiovascular surgeons,[ [Fn.
3]] I believe that if Gary Wilson was transported promptly to
Providence Hospital where they are equipped to handle these types
of emergency situations, Mr. Wilson would have had a chance at
survival."  In its reply memorandum, MOC argued that Dr. Hubbard's
opinion that Wilson had "a chance"of survival did not create a
genuine issue of material fact.  Specifically, MOC argued that, for
its conduct to be considered a proximate cause of Wilson's death,
Alaska law requires that its conduct have been more likely than not
a substantial factor in Wilson's death.  A chance, MOC argued, does
not meet the more-likely-than-not requirement.  Additionally, MOC
argued that Alaska courts have not adopted, and should not now
adopt, the "loss-of-chance"doctrine. [Fn. 4] 
          The court held oral argument on the motion for summary
judgment in June 1996.  At oral argument MOC renewed its
contentions that its conduct was not the proximate cause of
Wilson's death and that the allegation that MOC had reduced
Wilson's chance of survival was not enough to create a material
issue of fact.  Parson argued that, considered as a whole, Dr.
Hubbard's affidavit should be read to mean that "there was a chance
of survival and that it was above fifty-fifty or more likely than
not."  Parson stated that Dr. Hubbard "doesn't reach the ultimate
conclusion of what the percentage of survival was"because he was
only asked whether it was true that Wilson had no chance of
survival.  Furthermore, Parson argued, MOC brought up for the first
time in their reply brief the issue of the loss-of-chance doctrine. 
          The court stated that it was not going to grant MOC
summary judgment at that time, even though it was "pretty sure"
that it could.  It declined to grant summary judgment because: (1)
"part of the information [it would] be relying on comes from the
reply briefs[,]"and (2) there was an incomplete record.  The court
gave Parson twenty days to supplement her briefing and to reply to
the issues raised in MOC's reply brief.  The court disagreed with
Parson's interpretation of Dr. Hubbard's affidavit.  The court
stated that "I can't read [Dr. Hubbard's] affidavit to say this guy
would've survived because it doesn't say that.  It says there's a
chance he would've survived."  While the court did not believe that
Dr. Hubbard's statement said that Wilson had more than a chance of
survival, it noted that "[t]he question of whether or not he has to
say that it's more likely than not is a truly legal question but I
want to give you an opportunity to paraphrase, to put your best
affidavit forward."  Parson requested that, within that twenty
days, she be allowed to take the deposition of Mr. Ackels, the
helicopter pilot.  In light of Parson's request, the court made the
supplemental brief due twenty days after she took the deposition of
Ackels.  Lastly, the court added that if Parson felt that
"something else needs to be in that record, [and she] can't get it
in there in this time frame, then [she should] move to continue the
consideration of the motion until [she] can get it in the record." 
          Parson took Ackels's deposition on July 9.  Thus, the
initial due date for her supplemental brief was July 29.  On
July 25 Parson sent a letter to MOC stating that she wanted to take
the depositions of Rogers, the pathologist who preformed the
autopsy, and Chumley, the Marathon EMT.  Parson noted that in order
to have enough time to take the depositions she needed an extension
of the supplemental briefing deadline.  She informed MOC that she
had requested such an extension from the court.  In an undated
order, the court extended the due date for Parson's supplemental
briefing to September 15.  That day passed without Parson filing
her supplemental brief.  On October 9 Parson filed a single motion
entitled, "Notice to the Court of Plaintiff's Efforts to Depose Dr.
Rogers and Mr. Chumley, Motion to Compel Depositions and Request
for Briefing Schedule."  MOC joined in Era's opposition to Parson's
motion.  On October 22 Parson replied to MOC's and Era's
opposition.  In her reply, Parson characterized her request as a
Civil Rule 56(f) motion.  On October 17 the court granted MOC's
motion for summary judgment and implicitly denied Parson's motion
to compel depositions and to reschedule briefing.  On October 30
the court entered final judgment.  This appeal followed. 
     A.   Standard of Review
          We review the denial of a Rule 56(f) motion for abuse of
discretion.  See Gamble v. Northstore Partnership, 907 P.2d 477,
485 (Alaska 1995).  
          We review a grant of summary judgment de novo. See 
Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).  We will
affirm a summary judgment if there are no genuine issues of
material fact and if the moving party is entitled to judgment as a
matter of law.  See In re Estate of Evans, 901 P.2d 1138, 1140
(Alaska 1995).  When making this determination, we draw all
reasonable inferences in favor of the non-moving party.  See Bishop
v. Municipality of Anchorage, 899 P.2d 149, 153 (Alaska 1995).  In
reviewing a grant of summary judgment we may affirm the superior
court on any basis appearing in the record.  See Far North
Sanitation v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 869 n.2
(Alaska 1992).
     B.   It Was an Abuse of Discretion to Deny Parson Rule 56(f)

          Rule 56(f) provides that 
          [s]hould it appear from the affidavits of a
party opposing the [summary judgment] motion that the party cannot
for reasons stated present by affidavit facts essential to justify
the party's 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.  
          We stated in Jennings v. State, 566 P.2d 1304, 1313
(Alaska 1977) that "requests made pursuant to Rule 56(f) should be
freely granted."  Rule 56(f) requests, however, should not be
granted to "'parties who have been lazy or dilatory.'"  Id.
(quoting 10 Charles A. Wright & Arthur Miller, Federal Practice and
Procedure: Civil sec. 2740, at 725-26 (1973)); see also Brock v.
Weaver Bros., 640 P.2d 833, 837 (Alaska 1982) (concluding that the
court did not abuse its discretion in denying Rule 56(f) relief
because "approximately three years had elapsed since the accident
. . . [and] no discovery . . . had been undertaken").  We have also
stated that "a litigant seeking relief under Rule 56(f) must 'make
it clear to the trial court and the opposing party that he opposes
the summary judgment motion on this ground.'"  Gamble, 907 P.2d at
485 (quoting Jennings, 566 P.2d at 1313-14) (emphasis in original). 
While the party seeking Rule 56(f) relief must do so unambiguously,
she need not specifically mention Rule 56(f) or file a separate
motion.  See id. at 486 (stating that this court has never required
that "a party requesting a continuance for the purpose of opposing
summary judgment must specifically mention Rule 56(f) or . . . file
a separate motion").
          Parson argues that the superior court abused its
discretion when it refused her request for additional time to
submit supplemental materials.  Parson argues that her request for
Rule 56(f) relief was unambiguous and that her motion and affidavit
identify Rule 56(f) as the basis for the requested relief.  She
argues that she was not dilatory in her discovery efforts for two
reasons: (1) MOC had refused to participate in discovery until the
substitution order was signed in February 1996; and (2) MOC played
a game of "hot potato"when she was trying to schedule the Rogers
and Chumley depositions.
          MOC argues that the court's refusal to grant Parson's
motion was not an abuse of discretion.  MOC states that Parson's
failure to request depositions from Rogers and Chumley before
July 25 (at a time her supplemental brief was due on July 29) was
dilatory.  MOC further argues that Parson missed two deadlines set
by the court (July 29 and September 15) and had not yet filed her
supplemental materials when the court granted MOC's motion for
summary judgment in October.  Lastly, MOC notes that, while Parson
did specifically mention Rule 56(f) relief, she did not do so until
she filed her reply to the opposition to her motion to compel
depositions.  She filed her reply on October 22, although summary
judgment had been granted on October 17; thus, MOC argues, "Parson
never properly made a Rule 56(f) request[,] and relief under this
provision cannot be sought for the first time on appeal."[Fn. 5] 
          For the following reasons, we conclude that it was an
abuse of discretion to deny Parson's motion for Rule 56(f) relief. 
          1.   Parson met the low threshold requirement for
requesting Rule 56(f) relief.  

          This court does not require that a party specifically
identify Rule 56(f) when seeking a continuance; rather, a party
need only provide "adequate reasons explaining why the party cannot
produce facts necessary to oppose summary judgment within the
original time frame."  Gamble, 907 P.2d at 485-86.  Parson's motion
to compel depositions and to reschedule briefing stated that she
was unable to file her supplemental brief without having taken
Rogers's deposition.  Parson also stated that she had attempted to
schedule these depositions but that "the Defendants [had] avoided
the scheduling"of them.  Thus, although it was not until she filed
her reply that she specifically identified Rule 56(f), her original
motion was adequate to constitute a request for Rule 56(f) relief. 
          2.   Parson was not dilatory in her discovery efforts.  
          Seemingly, Parson's only errors were not filing her
supplemental memo by September 15, and waiting until October 9 to
request an extension.  While Parson could have been more diligent
in her efforts to either file her supplemental brief by the
deadline, or request additional time, we do not believe her conduct
was so dilatory as to justify denying her Rule 56(f) relief.
          Parson notified the court that in order to prepare her
supplemental memorandum she needed to depose Rogers.  In her motion
to compel depositions Parson stated that "[a]s soon as Marathon
makes Dr. Rogers available then Plaintiff can take his deposition
and will then promptly supplement the pleadings."[Fn. 6]  Parson
was actively attempting to arrange a time to take Rogers's and
Chumley's depositions.  Parson first requested to take their
depositions on July 25, 1996.  MOC did not respond to Parson's
request until August 30.  Over the next two weeks Parson attempted
to schedule the depositions.  Parson's efforts to depose Rogers and
Chumley were largely unsuccessful due to MOC's unwillingness to
agree to a specific date and time.  As a result of the numerous
delays caused by MOC's uncooperativeness, the superior court
granted summary judgment to MOC before Parson had the opportunity
to take the two depositions.
          Because we conclude that it was an abuse of discretion to
deny Parson Rule 56(f) relief, we need not address whether summary
judgment was appropriate on the merits or whether Alaska should
adopt the loss-of-chance doctrine.
          The order granting MOC summary judgment and implicitly
denying Parson Rule 56(f) relief is VACATED and the judgment
REVERSED.  This case is REMANDED with instructions to grant Parson
additional time to take the depositions of Rogers and Chumley and
to submit her supplemental brief. 


Footnote 1:

     Era owned and operated the helicopter called to medi-vac
Wilson off the Steelhead platform.  Parson alleged that Era
breached the duty of care it owed to Wilson and that Era's breach
was a direct and proximate "substantial factor"in bringing about
Wilson's death.

Footnote 2:

     Era moved for summary judgment at the same time as MOC.  After
the superior court granted Era and MOC summary judgment, Era and
Parson settled.

Footnote 3:

     According to Dr. Hubbard, the Starr Group is preeminent in the
area of cardiovascular surgery.

Footnote 4:

     "In the typical loss of a chance case, a plaintiff already has
a condition . . . unlike a healthy plaintiff in most personal
injury cases.  A plaintiff claims the negligence has increased the
risk of harm by hastening or aggravating the effect of the pre-
existing condition or risk."  McKellips v. Saint Francis Hosp.,
Inc., 741 P.2d 467 (Okla. 1987).

Footnote 5:

     Parson responds that "[t]here is nothing ambiguous about
Plaintiffs' continuing and numerous requests to defense counsel and
the court as to the need for the depositions prior to filing the
supplemental briefing."  Parson notes that this court has held that
a specific request for Rule 56(f) relief is not required and that
her "request for a 56(f) continuance was based on the perpetual
refusal of Defendants to participate in necessary depositions and
the need for that discovery prior to submittal of [her]
supplemental brief."

Footnote 6:

     While Parson's motion stated that she needed Rogers's
affidavit to complete her supplemental pleadings, her motion
notified the court that she had been unsuccessful in her attempt to
depose both Chumley and Rogers.