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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McCormick v. Chippewa, Inc. (7/30/2014) sp-6933

McCormick v. Chippewa, Inc. (7/30/2014) sp-6933

         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, email  

                                                                                        

         corrections@appellate.courts.state.ak.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



BRENT MCCORMICK,                                            )  

                                                            )     Supreme Court No. S-15046  

                            Appellant,                      )  

                                                            )     Superior Court No. 3AN-11-12131 CI  

         v.                                                 )  

                                                            )     O P I N I O N  

CHIPPEWA, INC. and LOUIS OLSEN,                             )  

                                                            )     No. 6933 - July 30, 2014  

                            Appellees.                      )  

                                                            )  



                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                     

                   Judicial District, Anchorage, Paul E. Olson, Judge.  



                   Appearances:  Gerald W. Markham, Kodiak, for Appellant.  

                                        

                   Laura  L.  Farley,  Farley  &  Graves,  P.C.,  Anchorage,  for  

                   Appellees.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                 

                   Bolger, Justices.  



                   WINFREE, Justice.  



I.       INTRODUCTION  



                   Parties to a settlement agreement later disagreed on a material term of the  

                                                                   

                                                                                                            



agreement;        they     sought      to   enforce       the    agreement        based      on    their    respective  

                                            



understandings of the term.  During summary judgment proceedings, one party asked for  

                                



time  to  conduct  discovery  regarding  the  parties'  intent.    The  superior  court  granted  



summary judgment to the other party and denied the discovery request as moot.  Because  

                                                           


----------------------- Page 2-----------------------

it  was  an  abuse   of  discretion  not  to  allow  discovery  before  ruling  on  the  summary  



judgment motion, we vacate the summary judgment order and remand so that appropriate  



discovery may be conducted.  



II.	       FACTS AND PROCEEDINGS  



           A.	        Injury          Complaint,             Settlement             Negotiations,              And         Settlement- 

                      Enforcement Complaint  



                      On   August  14,  2007,  Brent  McCormick  suffered  a  back  injury  while  



pushing a net reel aboard the F/V                         CHIPPEWA , owned by Chippewa, Inc.  The day after  



his injury McCormick was treated with ibuprofen.  Later that night rough seas caused  



                                                    

him to fall out of his bunk and hit his head.  McCormick continued to suffer back pain  



and dizziness and later was treated by medical specialists in Anchorage.  



                                                                                                   

                      In August 2010 McCormick filed a complaint against Chippewa, Inc. and  



                      1  

                               

Louis Olsen,  the vessel's captain, alleging "unseaworth[i]ness" of the F/V   CHIPPEWA  



and negligence in failing to ensure workplace safety and provide proper medical care.   



Chippewa  had  a  liability  insurance  policy  with  a  $500,000  per  occurrence  limit,  



including  a  "cannibalizing"  provision  specifying  that  costs  and  expenses  spent  



"investigating and/or defending any claim" would be deducted from the policy limit.  



                      In early January 2011 McCormick's lawyer corresponded with an insurance  



                                                                  

claims adjuster, discussing the policy's terms.  In a later email to McCormick's lawyer,  



the claims adjuster defined the "policy limit" as $500,000.  McCormick's lawyer then  



hand-delivered a settlement offer to the claims adjuster, proposing to:  



                                                                                                              

                      unconditionally settle all aspects of all claims held by  my  

                                                                           

                      client Brent McCormick . . . for any and all injuries occurring  

                                                                                                                

                      or arising out of . . . McCormick's 2007 employment on the  

                                HIPPEWA  . . . in exchange for the "policy limits" of the     

                      F/V C 

                       [insurance policy] . . . .  



           1          Olsen and Chippewa, Inc. are referred to collectively as Chippewa.  



                                                                     -2-                                                                   6933  


----------------------- Page 3-----------------------

                                                                     

The settlement offer described the claims as arising out of "two accidents" suffered by  



McCormick on August 14 and 15, 2007.  



                                                                                                      

                    Chippewa's lawyer responded to the settlement offer on March 3, writing  



                                         

to "accept [McCormick's] demand for payment of the remaining policy limits . . . which  



has a Protection & Indemnity face limit of [$500,000]."  The acceptance letter specified  



                                

that "[a]t this point, we estimate the remaining limits are approximately $370,000."  A  



proposed settlement agreement was attached.  



                                                                                                               

                    McCormick's lawyer later sent Chippewa's lawyer a letter noting that he  



                                                  

had indicated during a March 21 telephone conversation that he "viewed the policy limits  



in the . . . policy to be different than those [Chippewa's lawyer] estimated in [her] letter  



                                                                                                                          

of March 3." McCormick's lawyer stated that he understood Chippewa's lawyer to have  



                                                    

"responded [in that conversation] that regardless, it was [Chippewa's] intention in [the]  



                                                                

letter of March 3 . . . to pay 'limits' what ever they may be (which was [McCormick's]  



                                                                                                                   

offer's intent)."  McCormick's lawyer indicated in his letter that deducting any further  



                                                                                              

expenses  and  costs  from  the  policy  based  on  investigating  and  defending  the  claim  



                     

should cease because "we have a settlement agreement in place."  Attached to the letter  



was the settlement agreement, with McCormick's signature.  McCormick then dismissed  



his complaint against Chippewa.  



                                                                                  

                    The  settlement  agreement  McCormick  signed  released  Chippewa  from  



                                                                                                                  

liability for "consideration of the remaining policy limits available under [the policy]  



                                                            

which  has  a  Protection  &  Indemnity  face  limit  of  .  .  .  $500,000."    The  settlement  



agreement stated that the release from liability applied to "any and all claims . . . arising  



out of or in any way connected with all accidents and incidents . . . occurring on or about  



August, 14, 15, and/or 16, 2007."  



                                                        

                    McCormick's  lawyer  again  wrote  to  Chippewa's  lawyer  requesting  



                                                                                                   

"communications  regarding  how  underwriters  are  calculating  'limits'  and  .  .  .  an  



                                                               -3-                                                         6933
  


----------------------- Page 4-----------------------

accounting of those items that they proposed being charged against [the limits] to arrive  



                                                       

at this polic[y's] remaining limits."  Chippewa's lawyer provided an accounting of the  



                                                                

remaining policy limits, clarifying that the insurance company would make a payment  



of $424,040.05 to McCormick, consisting of the policy limit ($500,000), less costs and  



expenses for investigating the claim ($128,459.95), plus Alaska Civil Rule 82 attorney's  



fees ($52,500).  



                                                                                         

                    In November 2011 McCormick filed a second lawsuit, seeking to enforce  



                                                                                           

the  settlement  agreement.                The  complaint  stated  that  the  "settlement  [agreement]  



obligated        [Chippewa]           to     pay      [McCormick]             the     remaining          'policy       limits  



available'. . . . However [Chippewa] . . . tendered an amount in satisfaction of their  



obligation  that  is  substantially  less  than  said  remaining  'policy  limits  available.'  "  



                                                                                                      

McCormick requested that the superior court issue an order directing Chippewa to "pay  



                                                                                                 

[McCormick] the amount they are obligated to by their settlement agreement" and enter  



a judgment for $100,000 in punitive damages.  



                    Chippewa's lawyer sent McCormick a letter responding to the complaint  



                                                                                                           

and describing McCormick's action as "perplexing and . . . inconsistent with the status  



                                      

of this case." She wrote: "Our review of the correspondence clearly reflects that we had  



                                         

offer and acceptance of the remaining policy limits which were calculated as of April 13,  



2011 to be $424,040.05."  



                                                                                                              

                    McCormick's lawyer responded, confirming that there was an offer and  



                                               

acceptance to settle for policy limits.  But he argued that Chippewa's acceptance was  



                                                                                                                 

"made with full knowledge the parties might subsequently fail to agree to the amount of  



those 'limits' and litigation to determine them would follow."  



                    Chippewa's lawyer responded with another letter stating, "[A]gain I am  



                                                                                             

confused . . . . [Chippewa is] prepared to tender your client a check in the amount of  



                                                                                                  

$424,040.05 immediately."  Chippewa's lawyer indicated she was "at a loss" as to what  



                                                             -4-                                                        6933
  


----------------------- Page 5-----------------------

McCormick wanted.  McCormick's lawyer later indicated that Chippewa should answer  



the November 2011 complaint and that further negotiations would be unproductive.  



                   Chippewa then filed its own motion to enforce the settlement agreement and  



                                                                   

a motion to dismiss McCormick's November 2011 lawsuit.  Chippewa argued that a  



settlement agreement had been reached and must be enforced, and that McCormick failed  



to state a claim upon which relief may be granted.  



         B.        Discovery Requests And Pre-trial Motions  



                   After filing his November 2011 complaint, McCormick sent Chippewa  



interrogatories requesting that Chippewa indicate "precisely what [Chippewa] contend[s]  



                                                              

are the remaining 'policy limits available,' " and provide factual information related to  



Chippewa's  claims  and  any  affirmative  defenses.    Chippewa  responded  to  the  



                       

interrogatories in December 2011 but provided only cursory statements, citing other  



documents and stating, "Not applicable.  See Motion to Dismiss."  



                   In  early  2012  Chippewa  twice  tendered  to  McCormick's  lawyer  a  



                                                                     

settlement check in the amount of $424,040.05.  McCormick's lawyer rejected the first  



check  because  he  believed  it  would  be  accord  and  satisfaction  of  the  settlement  



                                                                  

agreement for less than what Chippewa owed. McCormick's lawyer rejected the second  



                                            

check because he believed the accompanying letter placed unacceptable conditions on  



                                                                                                              

endorsement.  The rejection letter indicated McCormick "has never agreed that was [the]  



                                                                           

amount [and] that sum is less than the amount now due."  McCormick then made an  



                                                                                             

Alaska Civil Rule 68 offer of judgment for a total of $1.25 million. McCormick's lawyer  



subsequently sent a second set of interrogatories.  The record does not indicate any  



response from Chippewa to the second interrogatories.  



                   In March McCormick filed a partial summary judgment motion, arguing  



that the parties had reached an agreement to settle the case for "policy limits" but that the  



                                                                                

policy allowed for liability "per occurrence." According to McCormick there were three  



                                                           -5-                                                    6933
  


----------------------- Page 6-----------------------

                                                                     

occurrences - two accidents and a subsequent bad faith failure to provide maintenance  



and cure - entitling him to $1.5 million under the settlement agreement, plus Rule 82  



attorney's fees on that amount, without deducting Chippewa's defense expenses.  



                   In  April  the  superior  court  issued  an  initial  pretrial  order  requiring  the  



                                                       

parties to jointly submit a list of three potential trial dates.  The pretrial order noted that  



initial disclosures by the parties should be made within 30 days.  Three days after that  



                                                                

order, Chippewa filed for a protective order staying the initial pretrial order.  Chippewa  



                                                                                      

argued there was no need for discovery because the factual issues had been resolved by  



                                                                                        

the settlement agreement.  Chippewa also filed an opposition to McCormick's summary  



judgment motion.  Chippewa pointed to the "undisputed facts" establishing that the  



policy  limit  referred  to  in  the  settlement  agreement  was  $500,000.    Chippewa  also  



                                                                                                   

contended there was no legal basis for McCormick to argue for an interpretation that  



"policy limit" meant $1.5 million because the $500,000 amount was identified in the  



settlement agreement McCormick signed.  



                   McCormick replied to Chippewa's protective order motion, arguing that the  



                                       

settlement agreement "did not set forth an express figure" and that "[t]his is not remotely  



a case in which those facts have previously been adjudicated."  McCormick also raised  



                                                                                                      2  

the "potential need under [Rule] 56(f)" to secure additional discovery.   The superior  



court took no action on Chippewa's protective order motion.  



          2        Alaska R. Civ. P. 56(f) provides:  



                    Should it appear from the affidavits of a party opposing the  

                   motion that the party cannot for reasons stated present by  

                                      

                   affidavit facts essential to justify the party's opposition [to  

                                                                                      

                   summary judgment], 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.  



                                                            -6-                                                      6933
  


----------------------- Page 7-----------------------

                                                                                        

                    Later in April McCormick filed a status report regarding the pretrial order.  



McCormick   complained   that   Chippewa   had   failed   to   respond   to   the   second  



                                                                                                       

interrogatories and had failed to exchange initial disclosures, noting that Chippewa's  



                                                                                              

pending  motion  for  a  protective  order  did  not  automatically  stay  the  pretrial  order.  



                                                                                       

McCormick  also  filed  a  motion  to  compel  Chippewa  to  respond  to  the  second  



interrogatories.  McCormick's motion noted that he should have the option to "press  



forward with depositions" after the required pretrial disclosures had been made.  



                    Chippewa opposed McCormick's motion to compel, reiterating its belief  



                                                                                                    

that discovery was not warranted because the settlement agreement should be enforced:  



                                                                     

"It is appropriate to preclude discovery where it is irrelevant to the cause of action . . . .  



                                                                                                       

 [McCormick]  agrees  with  [Chippewa]  that  the  case  has  settled."                               But  McCormick  



                                                           

responded that Chippewa's assertion it believed the settlement was for $500,000 raised  



                                                                                            

a  question  of  "state  of  mind"  and  a  genuine  issue  of  fact,  entitling  McCormick  to  



                                                                                                       

discovery.  McCormick concluded that he "still has the right to insist on [Chippewa's]  



answers to the interrogatories attached to his initial motion . . . as they are necessary to  



issues this court must resolve."  



                                                                                                               

                    Without ruling on McCormick's motion to compel discovery, in July 2012  



the superior court converted Chippewa's motion to dismiss into a motion for summary  



                                                           

judgment.  Both parties submitted new briefs arguing their cross-motions for summary  



judgment.  



          C.        McCormick's Motions For Pre-trial Conference And Continuance  



                    In August McCormick filed a motion for a pretrial conference regarding  



discovery of Chippewa's state of mind during the settlement negotiations.  McCormick's  



                        

motion sought court permission to conduct discovery "of defendants, their attorneys,  



                                                                                                                  

their underwriters, underwriters' attorneys ('coverage counsel'), adjusters and agents [as  



to] state of mind on various issues."  According to McCormick, Chippewa "raised the  



                                                              -7-                                                       6933
  


----------------------- Page 8-----------------------

affirmative defense of 'mistake' . . . putting in issue their 'intent' at the time [of] their  



                                                                                    

settlement."  McCormick also sent Chippewa a third set of interrogatories, but the record  



does not indicate any response from Chippewa.  



                                                                                                       

                    Chippewa opposed McCormick's motions for a pretrial conference and  



summary judgment.  Chippewa again argued that its underlying motion was to enforce  



                                                                                                            

the settlement agreement and "[r]esolution of this motion does not require discovery or  



                                                                          

a pretrial order."  Chippewa submitted an affidavit from its attorney stating that "[n]ever  



                                                                                                        

did [McCormick's] counsel mention that he thought the limits were $1.5 million" - i.e.,  



                                             

three policy limits - and that Chippewa's attorney had followed up with McCormick's  



                                                       

attorney after the March 21 telephone call to resolve any confusion over the policy limits  



to be paid.  Thus, according to Chippewa, the settlement was for a single policy limit and  



discovery was not needed.  



                    McCormick replied to Chippewa's discovery opposition, arguing that if the  



superior court were to use Chippewa's lawyer's affidavit to determine the summary  



                                                                                                      

judgment motion, then discovery into the lawyer's state of mind would be necessary.  He  



                                                          

contended  discovery  of  Chippewa's  lawyer's,  its  clients',  and  its  underwriters'  



"contemporaneously created communications and files and depositions" was warranted  



                                                                             

"to  see  if  they  corroborate  [Chippewa's  lawyer's]  testimony  in  her  affidavit  before  



 [McCormick]  is  forced  to  put  his  own  attorney's  testimony  .  .  .  in  evidence."  



                                    

McCormick also filed a motion for a Rule 56(f) continuance to engage in discovery of  



Chippewa's lawyer's state of mind.  



                    The superior court denied McCormick's Rule 56(f) motion.  The court  



stated that McCormick's lawyer had not submitted an affidavit explaining why additional  



                                                           

time for discovery was needed, and that the "court is not convinced that additional time  



is needed.  Counsel has pointed to no particular issue that requires additional discovery  



prior to ruling on [Chippewa's] summary judgment motion."  



                                                             -8-                                                      6933
  


----------------------- Page 9-----------------------

                     McCormick  moved  for  reconsideration   of  the  denial  of  his  Rule  56(f)  



motion.   McCormick argued that the superior court erred by not considering controlling   



case law holding that a Rule 56(f) movant does not need to state "specific facts" to be  



                                                   

gained by further discovery. But McCormick also submitted an affidavit from his lawyer  



                                                               

"in support of [a Rule] 56(f) continuance to obtain evidence" in response to Chippewa's  



lawyer's  affidavit.    The  affidavit  described  McCormick's  lawyer's  version  of  the  



                                                                      

settlement negotiations and disputed the facts set forth in Chippewa's lawyer's affidavit.  



                                                                                   

McCormick's lawyer contended that Chippewa knew McCormick claimed a settlement  



                                  

for  "more  than  one  accident  or  occurrence"  but  went  ahead  with  the  settlement.  



                                                                                                                        

McCormick's reconsideration motion concluded by asking the superior court for more  



time  to  conduct  "an  inspection  [of  Chippewa]  and  their  counsel,  adjuster  and  



                                                                              

underwriters  files."             According  to  McCormick,  discovery  would  lead  to  evidence  



"showing their state of mind with regard to the 'per occurrence' coverage and other  



coverage available under their policy at issue."  



          D.         Superior Court Decision  



                     During oral argument on the summary judgment motions, McCormick's  



                                                                                       

lawyer restated his requests for discovery:  "[Chippewa] filed their motion for summary  



                                                                 

judgment initially in this case.  And what would have normally happened had they not  



                                                                                                                   

filed that motion, there would have been a pre-trial order issued and there would have  



been some discovery happening in the meantime."  Chippewa countered that there was  



no need for discovery because the case had already been settled.  



                                                                                                          

                     In January 2013 the superior court issued three orders.  First, the superior  



court  granted  Chippewa's  motion  for  enforcement  of  the  settlement  agreement  as  



                                                                                          

Chippewa  interpreted  it.    The  court  concluded  that  the  settlement  agreement  "was  



                                       

sufficiently definite and encompassed all of the essential terms necessary to constitute  



                                                                                          

an offer."  Because the settlement agreement referred to a policy limit of $500,000, the  



                                                                -9-                                                         6933
  


----------------------- Page 10-----------------------

court  held  that  there  may  have  been  questions  about  the  amount  remaining,  but  by  



signing the agreement McCormick "clearly agreed to $500,000," plus attorney's fees and  



minus allowable expenses.  Thus, McCormick's signature on the agreement indicated an  



objective intent to be bound by those terms and Chippewa had "fully satisfied their  



obligation under the Settlement Agreement" by tendering the settlement checks.  Second,  



                           

the court granted Chippewa's motion for summary judgment on McCormick's claims.  



Third, the court denied McCormick's pending discovery motions as moot.  



                    McCormick now appeals.  



III.      DISCUSSION  



                                                                                                          

                    McCormick argues it was error to grant summary judgment because he was  



                                                                                            

denied the opportunity to conduct discovery into the intent of Chippewa and its lawyer  



                                                     

during the settlement negotiations.  According to McCormick, he should be allowed the  



opportunity to discover evidence "showing [Chippewa's lawyer's] state of mind with  



                                                                                                          

regard to the 'per occurrence' coverage."  McCormick contends that by ruling the Rule  



                                                       

56(f) motion moot, and effectively  denying discovery, the superior court abused its  



                3  

discretion.   We agree.  



                                                                                                                         4  

                    It is well settled that litigants in civil cases have a "right to discovery"                           -  

                                                                                           



to  investigate  their  opponent's  claims  and  gather  evidence  to  support  their  own  

                                                                    



assertions.  Rule 26 provides that "[p]arties may obtain discovery regarding any matter,  

                                                                                                                



not privileged which is relevant to the subject matter involved in the pending action,  

                                                  



whether it relates to the claim or defense of the party seeking discovery or to the claim  

                                                                                                               



          3         We  review  the  denial  of  a  Rule  56(f)  motion  for  abuse  of  discretion.  



Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008).  



          4         Noffke v. Perez , 178 P.3d 1141, 1150 (Alaska 2008) (quoting Marron v.  



Stromstad, 123 P.3d 992, 999 (Alaska 2005)).  



                                                             -10-                                                          6933  


----------------------- Page 11-----------------------

                                             5  

or defense of any other party."   "It is not necessary that the information actually be  



                                             

admissible  at  trial,  only  that  the  information  sought  might  reasonably  lead  to  the  

                                                 6  We have said that "discovery rules are to be broadly  

discovery of admissible evidence."                                                                    



                 7                                                                                    8 

construed,"  in order to uphold "a system of liberal pretrial discovery." 



                   The opportunity to discover facts relevant to an opponent's claims and  



                                                                                                             

defenses is especially important at the summary judgment stage.  Summary judgment is  



                                                                                                           

appropriate when "there is no genuine issue as to any material fact" and "the moving  

                                                                    9   The Alaska Civil Rules recognize that  

                                                                                                

party is entitled to judgment as a matter of law."  



when  faced  with  a  summary  judgment  motion,  a  party  might  require  more  time  to  

                                                                                              



discover facts that counter the moving party's assertions; Rule 56(f) provides:  



                   Should it appear from the affidavits of a party opposing the  

                   motion that he cannot for reasons state present by affidavit  

                                          

                   facts essential to justify his 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.  

                                                            



                   As  we  have  explained,  "[t]he  purpose  of  [Rule  56(f)]  is  to  provide  an  

additional safeguard against an improvident or premature grant of summary judgment."10  



          5        Alaska R. Civ. P. 26(b)(1).  



          6        Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004).  



          7        Lockwood  v.  Geico  Gen.  Ins.  Co. ,  323  P.3d  691,  699  (Alaska  2014)  



(quoting Lee v. State , 141 P.3d 342, 347 (Alaska 2006)).  



          8        Jones v. Jennings , 788 P.2d 732, 735 (Alaska 1990).  



          9        Alaska R. Civ. P. 56(c).  



          10       Munn v. Bristol Bay Hous. Auth ., 777 P.2d 188, 193 (Alaska 1989) (quoting  



10A  CHARLES  ALAN   WRIGHT ,   ARTHUR  R.   MILLER   &   MARY  KAY   KANE ,  FEDERAL  

                                                                                                         (continued...)  



                                                           -11-                                                      6933
  


----------------------- Page 12-----------------------

      

In accordance with our system of liberal pretrial discovery, we have made it clear that  



          

Rule  56(f)  motions  normally  should  be  granted:    "[A]s  long  as  a  non-movant  [for  



                                                                                                      

summary judgment] has not been dilatory and has 'made clear to the trial court and the  



                                  

opposing party that he' is requesting a Rule 56(f) continuance, the request 'should be  



                             11  

                                   And  the  prerequisites  for  granting  a  Rule  56(f)  motion  are  not  

freely  granted.'  " 



                                                                                   

onerous:  the movant does not need to "state what specific facts further discovery will  



                                                                                            12  

                                                                                                "The request will generally  

produce" or provide an affidavit in support of the motion.  



be  granted  if  the  party  provides  adequate  reasons  explaining  why  the  party  cannot  



                                                                                                                                         13  

                                                                                                        

produce facts necessary to oppose summary judgment within the original time frame." 



                                                                                  

                      Here, the parties' positions suggested at least the three following scenarios:  



                

(1)  both  McCormick's  lawyer  and  Chippewa's  lawyer  understood  the  settlement  



                                                                 

agreement was for a single policy limit of $500,000 regardless of the number of injury  



                                                                                               

occurrences;  (2)  both  lawyers  understood  the  settlement  agreement  was  for  "policy  



                                                                                                                        

limits," leaving open for later resolution how many occurrences and single policy limits  



were at issue; or (3) there was no meeting of the minds regarding the interplay between  



           10         (...continued)  



PRACTICE AND PROCEDURE   2740, at 530-32 (2d ed. 1983)).  



           11        Id . (quoting Jennings v. State , 788 P.2d 1304, 1313-14 (Alaska 1977)).   



           12        Id . ("[W]e see no compelling reason to interpret Rule 56(f) to require that       



non-moving opposing parties state what specific facts discovery will produce.");                                                Kessey  

v. Frontier Lodge, Inc ., 42 P.3d   1060, 1063 (Alaska 2002) (declining to require an  

affidavit in support of a Rule 56(f) motion).  



           13         Gamble v. Northstore P'ship, 907 P.2d 477, 485 (Alaska 1995); see also  



                   

Mitchell v. Teck Cominco Alaska, Inc ., 193 P.3d 751, 758 (Alaska 2008) ("[T]o receive  

a  continuance  [under  Rule  56(f)]  a  party  (1)  must  unambiguously  request  relief  on  

Rule 56(f) grounds . . . (2) must not have been dilatory during discovery; and (3) must  

                                                                                                                              

provide adequate reasons why additional time is needed.").  



                                                                  -12-                                                             6933
  


----------------------- Page 13-----------------------

occurrences and policy limits, and therefore there was no settlement at all.  McCormick  



consistently  sought  discovery  of  facts  relevant  to  Chippewa's  assertion  that  the  

                                                                                                                    



settlement agreement was for a single policy limit of $500,000.  



                    McCormick's  filings  made  clear  that  he  was  asking  for  a  Rule  56(f)  



                                                                                

continuance, the reasons for his request, and the type of discovery he sought to obtain.  



                                                                                                     

McCormick's  first  mention  of  Rule  56(f)  occurred  as  part  of  his  opposition  to  



Chippewa's  motion  for  a  protective  order.    McCormick  explicitly  stated  that  he  



"invoke[d] the potential need under [Rule] 56(f) to secure evidence in support" of his  



                 

positions.  McCormick later replied to Chippewa's opposition to McCormick's motion  



for a pretrial conference, pointing out that  "Plaintiff's . . . total inability to conduct  



                                                                                   

discovery of defendant[']s agent[']s actual state of mind compels denial of defendant[']s  



                                

[summary judgment motion] pending Plaintiff's [Rule] 56(f) opportunity to conduct  



                                                

discovery" (emphasis omitted). After the superior court denied McCormick's Rule 56(f)  



motion,  McCormick  moved  for  reconsideration,  reiterating  his  desire  to  conduct  



                                                                           

discovery of Chippewa's "counsel, their adjusters, and their underwriters."  McCormick  



submitted his lawyer's affidavit describing the type of information sought:  "Specifically  



                                 

. . . copies of written communications between [Chippewa's lawyer and the insurance  



                                 

adjusters], as well as notes of oral communications between them and with Plaintiff's  



                                                                                              

counsel  showing  their  state  of  mind  with  regard  to  the  'per  occurrence'  coverage."  



                                                               

McCormick clearly sought a continuance to conduct discovery into Chippewa's intent  



regarding the settlement agreement.  Such discovery is particularly important considering  



                                                                                                               

that McCormick was not given an opportunity to depose Chippewa's lawyer even though  



Chippewa  used  its  lawyer's  affidavit  to  establish  its  intent  and  what  it  alleged  was  



McCormick's understanding of that intent.  



                                                             -13-                                                        6933
  


----------------------- Page 14-----------------------

                                                                               

                    It is also clear that McCormick was not dilatory in seeking discovery and  



required   additional   time   to   gather   new   facts.      McCormick   sent   three   sets   of  



                                                                                                              

interrogatories  to  Chippewa  requesting  information  about  Chippewa's  claims  and  



                 

defenses.  Chippewa failed to provide meaningful responses to the first interrogatories  



                                

and did not respond at all to the second and third interrogatories.  The superior court  



          

never  ruled  on  McCormick's  motion  to  compel  Chippewa  to  respond  to  those  



interrogatories.  



                                                                                                          

                    Based on the foregoing, we conclude that it was an abuse of discretion to  



deny McCormick's Rule 56(f) motion before ruling on summary judgment.  



IV.       CONCLUSION  



                    We  VACATE  the  superior  court's  grant  of  summary  judgment  and  

REMAND for further proceedings consistent with this opinion.14  



          14        On  remand,  the  superior  court  will  have  the  opportunity  to  consider  



McCormick's  discovery  requests,  including  allowing  Olsen's  and  McCormick's  

depositions, which may be appropriate for at least two reasons:  (1) testimony about the  

                                                                   

underlying accident(s) and the relative nature of the injury(ies) may provide context for  

                                                                                             

the dispute, i.e., whether each alleged injury could give rise to a reasonable expectation  

                                      

of a policy limit recovery; and (2) in light of the possibility that the putative settlement  

                                                                                                    

agreement  is  unenforceable,  the  testimony  of  the  apparently  elderly  men  may  be  a  

                                                                             

safeguard to preserve evidence of the events of August 14 through 16, 2007.  



                                                             -14-                                                          6933  

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