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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.


STANLEY C. FENNER,                      )
                              )    Supreme Court No. S-10064
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-99-12450 CI
OFFICE OF STREET                              )     [No.  5610  -
                                   August 23, 2002]
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

          Before:     Fabe,  Chief  Justice,  Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.


          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



          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


          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.


          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



     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


          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

          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


          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


          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



          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

     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).