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Fenner v. Municipality of Anchorage (8/23/2002) sp-5610
Fenner v. Municipality of Anchorage (8/23/2002) sp-5610
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.
THE SUPREME COURT OF THE STATE OF ALASKA
STANLEY C. FENNER, )
) Supreme Court No. S-10064
Appellant, )
) Superior Court No.
v. ) 3AN-99-12450 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
DIVISION OF PUBLIC WORKS, )
OFFICE OF STREET ) [No. 5610 -
August 23, 2002]
MAINTENANCE and VINCE MEE, )
SUPERINTENDENT, )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Sanford M. Gibbs, Brown, Waller
& Gibbs, P.C., Anchorage, and P. Dennis
Maloney, P. Dennis Maloney, P.C., Anchorage,
for Appellant. Scott H. Leuning, Clapp,
Peterson & Stowers, LLC, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I.
INTRODUCTION
Stanley C. Fenner was hurt while operating a snowplow
for the Municipality of Anchorage in 1997. After receiving
workers' compensation benefits, Fenner filed suit against the
municipality in superior court. The superior court granted the
municipality summary judgment under the exclusive remedy
provision of the workers' compensation act. Because the superior
court did not err, we affirm the grant of summary judgment to the
municipality.
II. FACTS AND PROCEEDINGS
On December 15, 1997 Stanley C. Fenner, a snowplow
operator for the Municipality of Anchorage, was injured when his
plow struck a high sewer cleanout, or manhole, injuring his ribs
and chest. Although Fenner received workers' compensation
benefits for his injury, he filed suit against the Municipality
of Anchorage and Vince Mee, the Superintendent of the Office of
Street Maintenance (collectively "the municipality") on December
14, 1999 in superior court.
The municipality filed a motion to dismiss Fenner's
complaint pursuant to Rule 12(b)(6). The municipality argued
that Fenner's claims were barred by the exclusive remedy
provision of the Alaska Workers' Compensation Act (the Act), AS
23.30.055. In response, Fenner filed a second amended complaint,
joining Anchorage Water & Wastewater Utility (AWWU) and Pacific
North Equipment Alaska Company, and its branch manager, Fred
Gayton.
In that complaint, Fenner alleged four claims:
intentional tort against the municipality, intentional tort
against AWWU, negligence against Pacific North and Gayton, and
strict liability against Pacific North and Gayton. Fenner's
allegations consisted of three actions by the municipality that
he argued, taken in combination, rose to the level of an intent
to harm: (1) the decision to discontinue the practice of
assigning drivers to specific parts of town; (2) the reduction of
budget allocations to lower high manholes; and (3) the
replacement of bolts attaching the cutting edge to the plow with
bolts that allegedly did not break as easily thereby increasing
the risk of harm to operators.
At the same time that he filed the second amended
complaint, Fenner filed an opposition to the municipality's
motion to dismiss, arguing that the municipality's actions
constituted an intentional tort, taking his claim outside the
scope of the Act. Fenner also urged the superior court to adopt
the "substantial certainty" test to determine whether the
municipality's actions constituted an intentional tort. In
reply, the municipality argued that the superior court should
consider its motion to be a motion for summary judgment, that the
test to be used by the superior court in determining whether the
municipality acted intentionally was "specific intent to harm,"
that Alaska does not recognize the "substantial certainty" test,
and that Fenner did not allege an intentional tort.
Superior Court Judge Peter A. Michalski granted summary
judgment to the municipality and AWWU, which he found to be an
entity of the municipality. Judge Michalski found that the
actions alleged by Fenner did not rise to the level of intent to
harm needed to maintain an action outside the workers'
compensation act. The court further stated that the decisions of
the municipality were budgetary and efficiency decisions that
"cannot and do not constitute the equivalence of an intent to
harm." Final judgment was entered against Fenner on January 22,
2001. Fenner appeals.
III. STANDARD OF REVIEW
A superior court's order granting a motion for summary
judgment is reviewed de novo.1 We will affirm a grant of summary
judgment if there are no genuine issues of material fact and if
the moving party is entitled to summary judgment as a matter of
law.2
IV. DISCUSSION
A. Fenner's Claim Was Barred by the Exclusive Remedy Provision
of the Worker's Compensation Act.
Fenner argues that the trial court erred in granting
summary judgment to the municipality and AWWU as he showed "that
he was the victim of an intentional act of the municipality,"
placing genuine issues of material fact in dispute and making the
question of intent one for the jury. Fenner states that we have
adopted the "substantial certainty" standard to determine whether
a tort is intentional in the realm of the workers' compensation
system. Although he argues that there was direct evidence of the
municipality's intent to injure, Fenner submits that we should
use the "substantial certainty" standard established by the
Michigan Supreme Court allowing the law to infer intent, which he
claims we have already adopted.
1. The intentional tort exception to the exclusive remedy
provision of the act
For injuries incurred in the workplace, an employer is
liable to employees for the payment of the compensation due under
the Act.3 This payment is due irrespective of fault.4 Under AS
23.30.055, this liability is the exclusive remedy for an employee
injured during the course of employment.5
However, we have held that this exclusive remedy
provision does not apply where an employee commits an intentional
tort against a fellow worker.6 We found that the "socially
beneficial purpose of the work[ers'] compensation law would not
be furthered by allowing a person who commits an intentional tort
to use the compensation law as a shield against liability."7
We have permitted recovery for intentional torts "on the theory
that the harm is not accidental and therefore not covered by the
act."8
2. We have not adopted the substantial certainty test.
1. Fenner argues that we did not set out any guidelines
regarding the quantum or quality of evidence necessary to create
an issue of fact as to whether there was substantial certainty
that an employer's actions would lead to an employee's injury
constituting an intentional tort until Williams v. Mammoth of
Alaska9 when we adopted the "substantial certainty" standard of
the Michigan Supreme Court. Fenner asserts that the "substantial
certainty" standard defines intentional tort as occurring when
the employer knows the consequences of its act "are certain or
substantially certain to cause injury" yet still acts.
The municipality, however, argues that we require
actual intent to injure before an employee escapes the workers'
compensation system. It states that, rather than adopting a
"substantial certainty" standard, Mammoth reaffirmed prior
holdings of this court requiring a showing of actual intent.
We have placed a "stiff burden" on employees attempting
to demonstrate an intent to harm.10 In Van Biene v. ERA
Helicopters, Inc.,11 we stated that we adopted the majority rule
defining a tort intentional enough to take an employee outside
the workers' compensation system.12 In adopting this standard, we
noted that the majority of jurisdictions had held that
allegations constituting gross negligence or willful and knowing
violation of regulations did not rise to the level of an
intentional tort.13 We also approved of Professor Larson's
statement that
[s]ince the legal justification for the
common-law action is the non-accidental
character of the injury from the defendant
employer's standpoint, the common-law
liability of the employer cannot, under the
almost unanimous rule, be stretched to
include accidental injuries caused by the
gross, wanton, wilful, deliberate,
intentional, reckless, culpable, or malicious
negligence, breach of statute, or other
misconduct of the employer short of genuine
intentional injury.
. . . .
Even if the alleged conduct goes beyond
aggravated negligence, and includes such
elements as knowingly permitting a hazardous
work condition to exist, knowingly ordering
claimant to perform an extremely dangerous
job, wilfully failing to furnish a safe place
to work, or even wilfully and unlawfully
violating a safety statute, this still falls
short of the kind of actual intention to
injure that robs the injury of accidental
character.[14]
In Mammoth we stated that we adopted the majority rule
that "an employer's violation of government safety regulations,
even if willful and knowing, [did] not rise to the level of an
intentional tort" in Van Biene.15 The estate in Mammoth argued
that we had failed to address the spectrum of other actions which
are in reckless indifference to the safety of workers, as well as
the minority view that an "employer's intentional violations of
safety regulations may support a finding of intent to harm an
employee."16 We discussed the substantial certainty doctrine in
relation to an Ohio case,17 stating that Ohio held that an
employer's violation of safety standards constituted an
intentional tort where the employer knowingly subjects an
employee to something dangerous with knowledge that harm would be
a substantial certainty.18 In Mammoth we went on to say, "[e]ven
assuming that we were receptive to modifying the rule we adopted
in Van Biene and following Holtz," there was no evidence to
support a finding of intent to harm as a substantial certainty in
the facts before the court.19
Our decisions in Van Biene and Mammoth were
further elucidated in Christensen v. NCH Corp.20 In that case, we
held that the employee, Christensen, had to allege intentional
harm on the part of NCH before he could pursue a claim outside
the workers' compensation system.21 In the context of the
exclusive remedy provision of the Act, "an intentional harm is a
harm committed by a person who acts with a specific intent to
cause an injury."22
Our exception to the exclusive remedy provision of the
Act is therefore limited to intentional torts where an employer
has a specific intent to injure an employee. Fenner's
contention, therefore, that we adopted the substantial certainty
test to determine intent, is incorrect.
3. The municipality did not specifically intend to
injure Fenner.
In his opposition to the municipality's motion to
dismiss, Fenner attached nearly seventy pages of exhibits for the
court to consider. The superior court, therefore, properly
reviewed the municipality's motion as a motion for summary
judgment under Rule 56.23 Fenner submitted a number of memos from
the municipality, many of which were sent after Fenner's
accident, regarding the Department of Public Works and Risk
Management.
With his first amended complaint, Fenner submitted an
affidavit from Chris Kloep, a former snowplow operator with the
municipality. In his affidavit, Kloep described Mee's actions
and statements on behalf of the municipality, particularly his
decisions to change operators' plow routes and to reduce the
budget for lowering high manholes and an alleged statement in
1995, two years before Fenner's accident, wishing injury onto
snowplow operators.
It is not clear which of these documents the superior
court considered during its decision. However, even taken
altogether, Fenner's submissions do not amount to a specific
intent to harm under our cases24 and the superior court did not
err in finding no genuine issues of material fact.
The violation of OSHA regulations alleged by Fenner to
constitute part of his claim of intent to injure did not occur
until January and February 1999, long after Fenner incurred his
injury in 1997. Kloep alleged that Mee made a statement wishing
injury on snowplow operators in January or February 1995, nearly
three years before Fenner's December 1997 accident. Further,
none of the documents submitted by Fenner indicates that the
municipality's decisions to change which operators plowed which
streets, to reallocate its budget, or to replace snowplow bolts
were done with the specific intent to cause Fenner's injury.
In fact, of the twenty-five exhibits submitted by
Fenner, only three were dated before his accident. One was a
1982 memo regarding frost adjustable grade rings and the other
two were November 1997 memos regarding plows that hit high
utilities after the second plowing that winter and the costs
associated with those hits. None of these three documents
mentioned Fenner. Given that Fenner never submitted any evidence
that the municipality specifically intended to cause his injuries
with its plowing and manhole decisions, the superior court did
not err in finding that Fenner did not raise a genuine issue of
material fact alleging an intentional tort for him to escape the
confines of the workers' compensation system.25
B. The Superior Court Did Not Abuse Its Discretion in Refusing
Fenner's Oral Motion for Discovery Before Granting Summary
Judgment to the Municipality.
Fenner argues that the trial court should have delayed
its ruling on the municipality's motion for summary judgment
until discovery had been completed, as neither party had even
made initial disclosures under Rule 26(a) when judgment was
entered. Fenner states that his inability to develop a factual
record to support his claims should have resulted in the court's
sua sponte continuance of the case once it determined that the
municipality's Rule 12(b)(6) motion would be treated as a motion
for summary judgment.
Fenner's allegations, even if true, are not sufficient
to remove his case from the workers' compensation system via the
intentional tort exception. Delaying ruling on the motion for
summary judgment, then, would have been of no benefit to Fenner.
As such, the trial court did not abuse its discretion in denying
Fenner more time to complete discovery.
C. Fenner Has Not Properly Raised the Issue of Sovereign
Immunity.
A. Fenner argues in this court that the municipality claimed
its decisions in regard to the scope and method of plowing
decisions were discretionary and not subject to tort liability,
and attacks that claim.26 We need not reach this issue, however,
because Fenner did not sufficiently raise it below27 nor include
it in his points on appeal. In these circumstances, the point is
waived.28
V. CONCLUSION
Because the trial court did not err in granting the
municipality summary judgment under the exclusive remedy
provision of the workers' compensation act, we AFFIRM.
_______________________________
1 White v. State, Dep't of Natural Res., 14 P.3d 956, 959
(Alaska 2000).
2 Calhoun v. State, Dep't of Transp. & Pub. Facilities,
857 P.2d 1191, 1193 (Alaska 1993).
3 AS 23.30.045(a).
4 AS 23.30.045(b).
5 AS 23.30.055 provides, in part:
The liability of an employer prescribed in AS
23.30.045 is exclusive and in place of all
other liability of the employer and any
fellow employee to the employee, the
employee's legal representative, husband or
wife, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages
from the employer or fellow employee at law
or in admiralty on account of the injury or
death . . . .
6 Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977)
(holding that an employee could sue an employer for an assault
and battery inflicted by a co-worker and occurring on the
premises of the place of employment).
7 Id.
8 Stafford v. Westchester Fire Ins. Co., 526 P.2d 37, 43
n.29 (Alaska 1974), overruled on other grounds, Cooper v.
Argonaut Ins. Cos., 556 P.2d 525 (Alaska 1976).
9 890 P.2d 581 (Alaska 1995).
10 Stafford, 526 P.2d at 43 n.29.
11 779 P.2d 315 (Alaska 1989).
12 Id. at 319.
13 Id. at 318.
14 Id. at 318-19 (quoting A. Larson, Larson Workmen's
Compensation 68.13, at 13-8 to -26 (1983 & Supp. 1985))
(alteration in original).
15 890 P.2d at 585.
16 Id.
17 Holtz v. Schutt Pattern Works Co., 626 N.E.2d 1029
(Ohio 1993).
18 Id. at 585-86.
19 Id. at 586.
20 956 P.2d 468 (Alaska 1998).
21 Id. at 475.
22 Id.
23 See Alaska R. Civ. P. 12(b).
24 Williams v. Mammoth of Alaska, Inc., 890 P.2d 581
(Alaska 1995) (holding that employer's intentional violation of
safety regulations does not constitute intentional tort); Van
Biene v. ERA Helicopters, 779 P.2d 315 (Alaska 1989) (holding
that employer's order that pilots fly in violation of FAA flight
time and duty regulations failed to constitute intentional tort);
Elliott v. Brown, 569 P.2d 1323 (Alaska 1977) (holding where
employer hit and shoved employees, actions were intentional
enough to take case outside worker's compensation system).
25 Christensen v. NCH Corp., 956 P.2d at 474 (stating that
"[m]ere assertions of fact in pleadings and memoranda cannot
raise genuine issues of material fact" so as to avoid summary
judgment).
26 This is a preemptive attack by Fenner on a potential
defense of the municipality. Given our resolution of the
exclusive remedy issue, this issue is moot.
27 Fenner's only mention of the issue occurred in a brief
footnote in his opposition to the municipality's motion to
dismiss, which footnote itself argued that the court should not
consider sovereign immunity.
28 Winn v. Mannhalter, 708 P.2d 444, 449 (Alaska 1985).
