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Excursion Inlet Packing Co. v. Ugale (06/11/2004) sp-5814
Excursion Inlet Packing Co. v. Ugale (06/11/2004) sp-5814
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
EXCURSION INLET PACKING CO., )
and ALASKA NATIONAL ) Supreme Court No. S-10790
INSURANCE COMPANY, )
)
Appellants, )
) Superior Court No.
v. ) 3AN-01-12796 CI
)
ANTONIO L. UGALE (deceased), ) O P I N I O N
)
Appellee. ) [No. 5814 - June 11, 2004]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Fred Torrisi, Judge.
Appearances: Constance E. Livsey, Colleen A.
Libbey, Holmes Weddle & Barcott, Anchorage,
for Appellants. Michael J. Patterson, Law
Office of Michael J. Patterson, Anchorage,
for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM
The decision of the superior court reversing the
decision of the Alaska Workers Compensation Board is AFFIRMED,
for the reasons expressed in the superior courts opinion set
forth in the appendix.1
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
ANTONIO L. UGALE (deceased), )
)
Appellant, )
)
v. )
)
EXCURSION INLET PACKING )
CO. and ALASKA NATIONAL )
INSURANCE CO., )
)
Appellees. )
________________________________) Case No. 3AN-01-12796 CI
Decision on Appeal
Excursion Inlet is a narrow bay off Icy Strait, located some
thirty-five miles west of Juneau1 and twenty-five miles north of
Hoonah. Antonio Ugale began working there for his third summer
on June 24, 1999, but quit about three weeks later.2 No
available flights out were scheduled that day, and by the time
one arrived, he was missing. His body was found later that day,
July 15, in the boat harbor.3 While the medical examiner
determined that he drowned, the manner of death is unknown.4 His
family argues that Excursion Inlet is a remote location, that he
was waiting on an employer-provided flight out, that his death
arose out of his employment and therefore should be presumed
compensable.5 The employer responds that he had already quit,
was not on its premises when he disappeared, and that the remote
site doctrine has been abrogated by statute.6 The Board agreed
with the employer, with one member dissenting.7
Facts and circumstances.8
As with too many Alaska tragedies, exactly what happened
will likely never be known. Mr. Ugale was Filipino, as were most
of his co-workers, and at the time of his death, they were
working sixteen-hour days.9 He was married and had three
children, two of whom are still under age eighteen.10 While his
wife said they were happy and he didnt suffer from any mental
problems,11 there is some conflicting information as to what was
going on in the days and hours before he died. His brother
Alfredo testified (in a Tagalog dialect, through an interpreter)
that Antonio was being threatened by a co-worker named Edwin
Pacada, that he was afraid to sleep in the bunkhouse his last
night there; he allegedly told Esteban Echavarre that someone had
threatened his brothers life.12 Mr. Echavarre recalled that when
they spoke two days before he died, he seemed nervous and scared,
and mentioned a problem with co-workers.13 Mr. Ugales
supervisor, Melanio Ancheta, said that he heard that Mr. Ugale
was afraid, although in general he did not seem to know why he
quit his job in mid-season.14 The separation notice prepared by
the company listed the reason for leaving as Family problem and
I cant sleep well during at [sic] night and feel a [sic]
nervous.15 The personnel manager, Mr. Henricus, confirmed this
impression in his testimony.16
Like the foreman, Mr. Henricus didnt seem to know exactly
what to make of Mr. Ugales demeanor. He recalled that he kept
repeating himself and shaking hands, and I kind of felt he was
not in, you know, his best senses really.17 The company nurse,
who saw Mr. Ugale a week before he died, also couldnt really tell
us what was wrong with him, advising him at the time to try to
get some sleep,18 but she also reported that Alfredo Ugale came
to her concerned about his brother, saying he was sick in the
head.19 The Troopers report,20 however, based on interviews,
referred to Mr. Ugale as depressed and despondent, and the
overall impression suggested paranoia; the family argues that
this was based entirely on lay reports from company employees.21
In any event, Alfredo Ugale decided to accompany his brother
on the trip home,22 and Mr. Henricus made the necessary travel
arrangements.23 He couldnt get them on a flight to Juneau that
evening, and so arranged an early morning departure on July 15,
connecting to flights to California.24 They signed the
separation documents, and received their pay, $300 of which was
in cash.25 It was company policy to feed and house anyone still
at its facility, given the location.26 That evening both
brothers went to a place known as Filipino Plaza, a gathering
place on the beach commonly used by Excursion Inlet Packing
Company (XIP) employees.27 After about fifteen minutes, Alfredo
left.28
From this point forward, the facts become increasingly
murky. Redacted police reports29 were stipulated into evidence,
30 and Trooper Welch wrote that Alfredo saw his brother leave,31
even though Alfredo insists that he himself had already gone
home.32 He further testified that he got out of bed to search
after some people unknown to him told him that Antonio was
missing.33 David McLean, XIPs assistant superintendent and
office manager, testified that Melanio Ancheta told him that he
[Ancheta] and Alfredo Ugale were present at Filipino Plaza and
ran after the decedent as he left the gathering,34 but this was
flatly contradicted by the testimony of both other men.35 To
some extent this might have been attributable to translating
difficulties.36 The Trooper also testified before the Board as
to the lay of the land, the way the tide and current flowed, and
other factors that might have played a part in Mr. Ugales
death.37
The next report we have of Mr. Ugale was when his body was
found in the boat harbor.38 His wedding ring and the $300 were
not found.39 His body was scraped and bruised in several
places,40 and the cause of death was asphyxiation due to drowning
in salt water.41 For a variety of reasons, Trooper Welch
concluded that Mr. Ugale tried to cross the river and was swept
downstream, and later flowed back up with the tide.42 The
medical examiner, apparently relying on information obtained from
the Troopers,43 reported previous psychiatric disorder, a
previous threat of suicide and behavior consistent with this; he
commented that it looks more like a suicide than anything else.44
A psychologist called by the family who had reviewed a portion of
the record testified to the contrary that an ability to work
eighteen hours a day, no previous attempts, attendance at the
gathering the night of July 14, a previously active life did not
lead him to the conclusion that Mr. Ugale had taken his own
life.45 The employer challenges this testimony as based on very
limited and incomplete portions of the record.46
The Decision by the Board.
The Boards discussion of the facts is more detailed than
those set out here, and relies heavily on Trooper Welchs synopsis
and interviews.47 But in the end, it did not feel the need to
answer the unanswerable questions posed by Mr. Ugales death.
Instead it found that (1) the employee had clearly resigned his
job at the time of his death, but (2) was allowed to stay at the
site until transportation was available, which may extend the
employee/employer relationship.48 It further found that (3) the
death did not occur at the XIP plant or property owned by it,49
nor was Mr. Ugale engaged in travel from the site or other
activities under XIPs direction, control or sponsorship.50 It
also found that (4) Mr. Ugale was last seen running away from
Filipino Plaza, and it found that all of this constituted
substantial evidence to rebut the presumption of compensability
and shift the burden to the family to prove its claim by a
preponderance of the evidence.51
Further examining the evidence, the Board found that Mr.
Ugale was engaging in personal activities. It did not find
evidence of foul play, rejecting Alfredo Ugales testimony
suggesting the contrary, and concluded that whether accident or
suicide, it was not caused by the employer. Accordingly, the
Board concluded that Mr. Ugale did not die in the course or scope
of his employment,52 and so denied the familys claim for
benefits.53
Board member Harriett Lawlor dissented, accepting Alfredo
Ugales testimony and reasoning that the decedents wedding band
must have been removed before he drowned. She found that his
actions in the days and hours before his death, and the fact that
his wallet, the $300, and his ring were never recovered, added up
to the conclusion that he was probably murdered.54 She applied
the remote site doctrine, and concluded that waiting for his
flight out was within the scope of his employment and therefore
compensable.55
Standard of review.
The parties addressed the applicable standards of review in
their briefs.56 Factual determinations of the Board are to be
sustained if supported by substantial evidence, which is such
evidence as a reasonable person might accept as adequate to
support a conclusion.57 I am not to re-weigh the evidence, nor
to choose between competing inferences, but just to decide
whether a reasonable mind could accept the findings in light of
the entire record.58 If I cant conscientiously find that the
evidence is substantial, after reviewing the record, then I may
set aside the finding.59
Where the Board interprets its regulations or otherwise
applies its expertise to an issue of law, the reasonable basis is
used;60 otherwise, I am to substitute my judgment for the Boards
and adopt the rule of law that is most persuasive in light of
precedent, reason and policy.61
The presumption of compensability.
While Ugale at one point says that the Board failed to apply
the presumption of compensability,62 his actual argument is that
it was applied incorrectly.63 Alaska Statute 23.30.120(a)(1)
establishes a presumption that a claim for compensation falls
within the provisions of the Alaska Workers Compensation Act in
the absence of substantial evidence to the contrary.
Before the presumption attaches, some
preliminary link must be established between
a claimants disability and his employment.
Burgess Construction Co. v. Smallwood, 623
P.2d 312, 316 (Alaska 1981). The purpose of
the preliminary link requirement is to rule
out cases in which [the] claimant can show
neither that the injury occurred in the
course of employment nor that it arose out of
[it]. Cheeks v. Wismer & Becker/G.S.
Atkinson, 742 P.2d 239, 244 (Alaska 1987)
(quoting 1A Larson, The Law of Workmans
Compensation 10.33, at 121 (1978)).
. . .
In making its preliminary link
determination, the Board need not concern
itself with the witnesses credibility.[64]
The Board, citing Meek v. Unocal Corporation,65 seized upon
the italicized word any by the Alaska Supreme Court,[*] and said
that this meant it had to apply the presumption in this case.
While it doesnt appear to me that the court was changing its
position in Meek, it was making clear that the presumption is not
restricted to whether or not the claim is work-related. In this
case, the Board stated that [b]ased upon the testimony and claim
he died in the course and scope of his work, we must . . . apply
the presumption.66 It further found that the employer allowed
Mr. Ugale to stay overnight until transportation from the site
was available, and so analyzed the claim as if he were still an
employee.67 As discussed earlier, it then went on to find the
evidence sufficient to rebut the presumption and denied benefits.
The employer continues to argue68 that the Board should not
have applied the presumption in the first place, citing
Sokolowski v. Best Western Golden Lion Hotel, which seems
especially misplaced in light of the ultimate reversal of that
decision.69 The problem may be that the concept of a presumption
dropping out upon the introduction of evidence to the contrary70
is difficult for some of us to comprehend. Perhaps the
presumption is only useful in a certain class of cases.71 And
that may be true here unless I were to conclude that the
evidence introduced by the employer to rebut the presumption is
not substantial as a matter of law. And this is exactly what the
family in its reply argues that I should conclude.
They argue this in two ways. One of these72 looks directly
at AS 23.30.120(a)(4) and asks whether the employer introduced
substantial evidence that Mr. Ugale intended to kill or injure
himself. The other73 looks at section .120(a)(1) and argues more
generally that there was not substantial evidence that the death
did not come under the provisions of the Act.
I discussed substantial evidence briefly earlier when I
addressed the standard of review, and Mr. Ugales family doesnt
argue that it means anything different here. There are cases
that complicate this issue somewhat, and some are discussed in
the 1985 law review article referenced above.74 But these cases
say that whether the quantum of evidence admitted is substantial
is itself a legal question,75 and that the mere possibility of a
nonqualifying alternative is not substantial evidence sufficient
to overcome the presumption.76
Miller v. ITT Arctic Services explained that the presumption
could be overcome either by affirmative evidence showing that the
death was not work-connected or by eliminating all reasonable
possibilities that it was.77 In Sokolowski the court held that
the Board erred in allowing the employer to overcome the
presumption by proof that the injury occurred off premises when
the special hazard exception applied; proceeding in this manner
essentially took the presumption out of the picture in this type
of case.78 A careful reading of cases such as Sokolowski,
Tolbert v. Alascom and DeYounge v. Nana/Marriott,79 teaches that
while the Board is indeed the fact-finder, a reviewing court
needs to carefully examine the evidence that it relied upon,
making sure that it was not speculative, that it does not elevate
mere possibilities and that it actually excludes work-related
factors as a substantial cause. It is with these thoughts in
mind that I return to the case at hand.
Was there substantial evidence to rebut the presumption?
XIP argues80 that the Board found81 that Mr. Ugale died
while engaged in personal activities away from its property, and
that this finding is supported by substantial evidence. But of
course the Board also found that Mr. Ugale had to wait for a
plane out and that he still had a bunk at the XIP facility. If
the remote site doctrine is applicable, then this case is like
Sokolowski, and reliance upon evidence that the injury occurred
off premises would be error as a matter of law. The evidence was
uncontested that Mr. Ugale was scared to stay in the bunkhouse,
that he wanted to leave, that he couldnt get a plane until the
next day, that he left, and that he died. Under these
circumstances, the fact that he died after quitting his job and
the fact that he died off XIP premises are both simply
irrelevant.
Only in Alaska could it be argued82 that XIPs facility was
not a remote site. In most states, Hoonah twenty-five miles
away would be remote enough. Outside of Wards Cove, which owns
XIP, there are a few people who own land there,83 a dozen of whom
might stay through the winter, a mail plane on Wednesdays, a
store open on Thursdays,84 a runway that doubles as Main
Street,85 no hotel, no restaurant, no government, virtually no
public facilities. There certainly is no question that under a
line of decisions in this area,86 this tiny community would be
one in which the remote site doctrine applied:
Although it is often possible for a resident
employee in a civilized community to leave
his work and residential premises to pursue
an entirely personal whim and thereby remove
himself from work-connected coverage, the
worker at a remote area may not so easily
leave his job site behind.[87]
So it was with Mr. Ugale; he couldnt easily leave his job
site behind him.88
The Board, however, noted the amendments to its Act after
these cases were decided, and cited its own precedent restricting
coverage to only those activities specified in AS 23.30.395(2).89
What that statute does is affirm the court decisions on travel to
and from a remote site, while excluding recreational league
activities and activities of a personal nature away from the job
site.90 Norcon, Inc. v. Alaska Workers Compensation Board is not
on point because the decedent died while getting ready for work
in a camp five miles from Valdez; the court simply said that
there was nothing about this activity that was influenced by the
alleged remoteness of the job site.91 Similarly, while the Board
discussed the 1980 amendments in Andress,92 its decision was
based on a wholly separate rationale, and in Snyder,93 the Board
relied upon the first part of AS 23.30.395(2) to find the injury
to be compensable.
The same is true of the decision in Kelly v. Nelbro Packing
Company.94 Section .395(2) simply does not provide the answer
when the question is itself whether a certain activity, conducted
as a result of ones job at a remote job site, is personal or not.
Judge Bolger found that a trip to the Pioneer Bar in Sitka was
reasonably foreseeable and incidental95 to ones employment on a
herring tender; you have to cross the docks late at night if you
are to enjoy a meal in town.
The question that remains in this case is whether there was
substantial evidence that Mr. Ugale was engaged in activities of
a personal nature at the time of his death. Since we are at the
stage where we are trying to decide if the presumption has been
overcome, the Board was not supposed to get into credibility,96
nor is the mere possibility of a nonqualifying alternative
sufficient.97 It is apparent that the suggestion that Mr. Ugale
took his own life falls into this latter category, since there is
no direct evidence of it and it is inconsistent with many of the
facts that have been established.
More difficult is the question of whether substantial
evidence was presented to show that the death was not work-
connected, or eliminating all reasonable possibilities that it
was.98 The Board found that the record was clear and
consistent99 that Mr. Ugale was last seen alive running away from
Filipino Plaza, but in fact no one testified to this and the two
who allegedly reported it flatly denied being present. If he
were in fact running away, why he might be doing so is also
unclear. Further, the Boards finding that he was attending a
going-away party100 may be true, but he didnt die at that party
or as a result of it. And the finding that if he slipped and
fell on the beach . . . he would have been engaged in an activity
of personal nature101 is simply conclusory; the nature of his
actions is itself the question, and the employer had to present
substantial evidence to overcome the presumption. The Boards
rejection of Alfredo Ugales testimony102 is improper at this
stage as well.103 Finally, this is not a case of an assault with
purely personal motives,104 since the source of the fear was
alleged to be a co-worker, and it was Mr. Ugales inability to
leave that provides the primary link to his employment. I
therefore conclude that the employer failed to rebut the
presumption by substantial evidence, so that Mr. Ugales family is
entitled to compensation.
We know that Mr. Ugale was frightened, that he wanted to
leave Excursion Inlet and that due to its remoteness, he couldnt
get a plane out until July 15th. This latter circumstance makes
irrelevant the fact that the death took place off XIP property
and after he had quit his job. He was afraid to stay in his
room, there was evidence that his fear was of a co-worker, and
when his body was found, his wedding ring and cash were gone.
His wife reported no family difficulty or mental health problem,
and Dr. Reffner testified that the history did not indicate a
likely suicide. While this is not an easy matter to analyze, I
agree with Ms. Lawlors dissent105 that, as in Firemans Fund
American Insurance Cos. v. Gomes,106 there is insufficient
evidence to rebut the presumption of compensability. The
decision of the Board is reversed and the matter remanded to the
Board for determination of the amount of benefits due. Appellant
is awarded costs and attorney fees of $750.
Dated: 9/5/02 /s/ Fred Torrisi, Judge
_______________________________
1 The superior court decision has been edited to conform
with our technical rules.
1 Transcript of hearing [Tr.] at 71.
2 Exc. 1.
3 Exc. 144.
4 Exc. 11-12.
5 Appellants Brief, filed 5/15/02 [At. Br.]; Reply, filed
8/12/02 [R. Br.].
6 Brief of Appellees, filed 7/15/02 [Ae. Br.].
7 Final Decision and Order, AWCB Case No. 199919457,
Decision No. 01-247, 12/7/01; Exc. 227-250.
8 See also AWCB decision, Exc. 228-243.
9 Deposition of Melanio Ancheta at 23.
10 Testimony of Reyne Ugale, Exc. 40-41, 31.
11 Exc. 43-48, 228-29; Tr. 102.
12 Exc. 4-6, 25, 27-28, 69, 77, 219, 223.
13 Exc. 3, 8-10, 75-81. See also Exc. 69, 231-33; Tr. 99.
14 Exc. 71-72; Melanio Ancheta Depo., 10/15/01; Exc. 229.
15 Exc. 138, 230.
16 Tr. 153; Exc. 229.
17 Tr. 154, 158-59; Exc. 229-30.
18 Tr. 178.
19 Tr. 179, 186.
20 Exc. 143-77.
21 R. Br. 9. See Tr. 90.
22 Ugale Depo. 22-23; Exc. 200.
23 Tr. 157.
24 Tr. 158, Exc. 142.
25 Exc. 2-3, 23-25, 139; Tr. 105, 156.
26 Exc. 93.
27 Exc. 18-22, 26, 84-92; Tr. 109, 133-34.
28 Exc. 220-21.
29 Trooper Welch testified as to the names blacked out in
the reports. Tr. 77-79, 82.
30 Tr. 14; Exc. 143-77.
31 Exc. 150A; Tr. 74, 85-86.
32 Exc. 220-22.
33 Ugale Depo. 33-34.
34 Tr. 126-27.
35 Ancheta Depo. 21, 24; Exc. 220-22.
36 Tr. 89, 106.
37 Tr. 93-99, 110-12, 116-18.
38 Exc. 17, 144.
39 Exc. 17, 25, 29, 149.
40 Exc. 144, 149-50, 164, 179, 182; Tr. 72.
41 Exc. 11-12.
42 Tr. 102, 113.
43 See Exc. 69.
44 Exc. 13.
45 Exc. 48-69.
46 Ae. Br. 12.
47 Exc. 239-43.
48 Exc. 245.
49 Id.
50 Exc. 244.
51 Exc. 245-46.
52 AS 23.20.395(2).
53 Exc. 246-47.
54 Exc. 248-49.
55 Ms. Lawlor cites Firemans Fund American Insurance Cos.
v. Gomes, 544 P.2d 1013 (Alaska 1976), and Kelly v. Nelbro
Packing Co., 3AN-00-3682 CI (Alaska Super. 8/17/00), Exc. 187-95.
56 At. Br. vi; Ae. Br. 15-16.
57 Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046
(Alaska 1978). See also Yahara v. Construction & Rigging, Inc.,
851 P.2d 69, 72 (Alaska 1993), and Resler v. Universal Servs.,
Inc., 778 P.2d 1146, 1149 (Alaska 1989).
58 Doyon Universal Servs. v. Allen, 999 P.2d 764, 771
(Alaska 2000).
59 Fairbanks North Star Borough v. Rogers and Babler, 747
P.2d 528, 534 (Alaska 1987) (citing Delaney v. Alaska Airlines,
693 P.2d 859, 863-64 n.2 (Alaska 1985)).
60 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987). See also Williams v. Abood Sweeping
Co., 53 P.3d 134, 139 (Alaska 2002).
61 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979),
Yahara, 851 P.2d at 72.
62 At. Br. vii, 13.
63 R. Br. 12-15.
64 Resler, 778 P.2d at 1148-49.
65 914 P.2d 1276, 1279 (Alaska 1996).
* [Id. at 1279 (quoting Municipality of Anchorage v.
Carter, 818 P.2d 661, 665 (Alaska 1991)).]
66 Exc. 246.
67 Id.
68 Ae. Br. 21.
69 AWCB Decision No. 90-0684 (June 15, 1989), revd
Sokolowski v. Best Western, 813 P.2d 286 (Alaska 1991), Exc. 102-
9.
70 Anchorage Roofing Co. v. Gonzales, 507 P.2d 501, 504
(Alaska 1973).
71 See J. Larson and J. Lewis, The Alaska Workers
Compensation Law: Fact-Finding, Appellate Review and the
Presumption of Compensibility, 2 Alaska L. Rev. 1, 9-11 (1985).
72 R. Br. 16.
73 R. Br. 11-15.
74 Larson, supra, note 71.
75 Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046
(Alaska 1978).
76 Hoth v. Valley Constr. 671 P.2d 871, 874 (Alaska 1983)
(little more than speculation offered).
77 577 P.2d at 1046; see also Steffey v. Mun. of
Anchorage, 1 P.3d 685, 690 (Alaska 2000); Tolbert v. Alascom,
Inc., 973 P.2d 603, 611 (Alaska 1999).
78 813 P.2d 286, 292 (Alaska 1991).
79 1 P.3d 90 (Alaska 2000).
Ex . 82.84Ae.
B . 34.85Tr.
82 Ae. Br. 1-2, 17, 34.
83 Exc. 82.
84 Ae. Br. 34.
85 Tr. 115.
86 Anderson v. Employers Liability Assurance Corp., 498
P.2d 288 (Alaska 1972) (employers bar in Amchitka), State, Dept
of Highways v. Johns, 422 P.2d 855 (Alaska 1967) (commuting to
mile 57 Richardson Highway), Northern Corp. v. Saari, 409 P.2d
845 (Alaska 1966) (commuting to adjacent recreational activity);
M-K Rivers v. Schleifman, 599 P.2d 132 (Alaska 1979) (30 mile
commute to Glennallen to cash paycheck); Exc. 243-44.
87 Anderson, 498 P.2d at 290.
88 See also Board decisions cited at R. Br 3-5.
89 Exc. 244, citing Gerwer v. Alaska Marine Highway, AWCB
Decision No. 87-133 (June 12, 1987).
90 See also the legislative history cited at Ae. Br. 32-33
and ARCO Alaska, Inc. v. Reynolds, No. 3AN-88-8396 CI (Alaska
Super. June 26, 1990), Exc. 110-26.
91 880 P.2d 1051, 1053 n.1 (Alaska 1994).
92 Andress v. Eagle Nest Enters., AWCB Decision No. 91-26
(February 1, 1991), Exc. 127-135.
93 Snyder v. Alaska United Drilling, Inc., AWCB Decision
No. 89-103 (May 4, 1989), Exc. 98-101.
94 3AN-00-3682 CI (Alaska Super. 8/17/00).
95 Witmer v. Kellen, 884 P.2d 662, 665 (Alaska 1994).
96 Norcon, 880 P.2d at 1054.
97 Hoth v. Valley Constr., 671 P.2d 871, 874 (Alaska
1983).
98 See note 77.
99 Exc. 245.
100 Exc. 246.
101 Id.
102 Id.
103 See Norcon, 880 P.2d at 1054.
104 See Temple v. Denali Princess Lodge, 21 P.3d 813
(Alaska 2001).
105 Exc. 249.
106 544 P.2d 1013 (Alaska 1976).
