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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moore v. Peak Oilfield Service Co. (02/15/2008) sp-6230

Moore v. Peak Oilfield Service Co. (02/15/2008) sp-6230, 175 P3d 1278

     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,


) Supreme Court Nos. S- 11969/11990
Appellant/Cross-Appellee, )
) Superior Court No. 3KN-03- 263 CI
v. )
) O P I N I O N
PEAK ALASKA VENTURES, INC.; ) No. 6230 February 15, 2008
Appellees/Cross-Appellants. )
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Charles T. Huguelet, Judge.

          Appearances:   Steve  Sims,  Law  Offices  of
          Steve  Sims,  Anchorage, for Appellant/Cross-
          Appellee.  Gary A. Zipkin, Guess & Rudd P.C.,
          Anchorage, for Appellees/Cross-Appellants.

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

          PER CURIAM

          Shawn Moores truck overturned after running into a dead
moose in the center of the road.  His passenger, Shannon Parnell,
was  critically  injured.   Parnell sued  Peak  Oilfield  Service
Company,  the owner of the truck that had hit the moose  sometime
earlier.   Peak then filed a third-party claim against Moore  for
allocation  of fault.  Because the jury found that Peak  was  not
liable  for  Parnells injuries, it did not reach the question  of
Moores  comparative fault.  In a separate appeal we reversed  and
remanded the issue of Peaks liability for a new trial.1
          This appeal considers the same trial, but involves  the
superior  courts  failure to rule that Moore  was  negligent  and
reckless  as  a  matter  of  law because  he  was  driving  while
intoxicated at the time of the accident.  Peak moved for  such  a
ruling based on Moores conviction of driving while intoxicated in
violation  of AS 28.35.030.  The conviction was based  on  Moores
plea of no contest to the charge.
          This  case is controlled by our recent decision in Lamb
v. Anderson.2  In Lamb we held that
          a  conviction based on a no contest plea will
          collaterally  estop  the  criminal  defendant
          from  denying  any element  in  a  subsequent
          civil action against him that was necessarily
          established by the conviction, as long as the
          prior  conviction was for a serious  criminal
          offense  and  the defendant in fact  had  the
          opportunity for a full and fair hearing.[3]
The  Lamb  factors  are satisfied in this  case.   Driving  while
intoxicated  is  a  serious criminal  offense.4   Moore  had  the
opportunity  for a full and fair hearing on his criminal  charge.
He was represented by a public defender when he entered his plea.
          Both  negligence and recklessness are established by  a
conviction  of  operating  a vehicle while  intoxicated.5   Thus,
Moore is estopped from denying his negligence and recklessness at
the time of the accident.  But his ultimate liability remains  an
open question.  Whether Moores negligence and recklessness caused
the accident is not an issue that was necessarily established  by
his  conviction.  Moore is therefore not barred by the conviction
from  arguing  that his negligence and recklessness  were  not  a
legal cause of the accident.
          The  superior courts denial of Peaks motion for partial
summary  judgment  is  REVERSED and this  case  is  REMANDED  for
further proceedings consistent with this opinion.6
     1    Parnell v. Peak Oilfield Serv. Co., __ P.3d __, Op. No.
6198 (Alaska, Nov. 9, 2007).

     2     147 P.3d 736 (Alaska 2006).  In Wilson v. MacDonald we
discussed  the application of Lamb in a case where  the  criminal
defendant  pled  no  contest  before  Lamb  clarified  the  civil
implications  of this plea.  Wilson v. MacDonald,  168  P.3d  887
(Alaska 2007).  In Wilson we noted that a party seeking to  avoid
the civil consequences of a no contest plea must do so through  a
motion for post-conviction relief or appeal in the criminal case.
Id. at 889.

     3    Lamb, 147 P.3d at 742.

     4     Id.  at 744 n.51.  Moore was sentenced to ten days  of
unsuspended jail time for the offense.

     5     Lupro  v. State, 603 P.2d 468, 475 (Alaska 1979)  (DWI
involves  culpable negligence defined as a reckless disregard  of
consequences,  a needless indifference to the rights  and  safety
and even the lives of others).

     6     This  disposition moots Peaks argument  concerning  an
evidentiary  use  of  Moores conviction and  Moores  cross-appeal
concerning costs and attorneys fees.

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