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Kissick v. Schmierer (8/23/91), 816 P 2d 188
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
HOLLY F. KISSICK, as Personal )
Representative of the Estate ) Supreme Court No. S-3977
of MICHAEL W. KISSICK, )
) Trial Court No.
) 3AN-89-2779 Civil
v. ) Consolidated
KAY M. SCHMIERER, as Personal )
Representative of the Estate ) O P I N I O N
of OTTO SCHMIERER, JUDITH )
JONSEN, as Personal Representative )
of the Estate of ALAN JONSEN, )
and LINDA LEBLANC, as Personal )
Representative of the Estate of )
ERNEST LEBLANC, )
Petition for Review from the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Mark A. Dombroff, John K.
Henderson, Katten, Muchin, Zavis & Dombroff,
Washington, D.C., and John K. Brubaker,
Raymond E. Plummer, Delaney, Wiles, Hayes,
Reitman & Brubaker, Anchorage, for
Petitioner. Dennis M. Mestas, Mestas &
Schneider, Anchorage, for Respondent
Schmierer. Jeffrey M. Feldman, Eric T.
Sanders, Kristen Young, Young, Sanders &
Feldman, Anchorage, for Respondents Jonsen
Before: Rabinowitz, Chief Justice,
Matthews and Compton, Justices. [Burke,
Justice, disqualified.] [Moore, Justice, not
COMPTON, Justice, dissenting.
FACTUAL AND PROCEDURAL BACKGROUND
On July 4, 1988, Michael Kissick invited Alan Jonsen,
Ernest LeBlanc, and Otto Schmierer to fly with him to Coghill
Lake for a fishing trip. Kissick and the three passengers died
when the plane crashed into a mountain bordering Burns Glacier.
Kissick was a major in the United States Air Force and
a member of the Air Force Elmendorf Aero Club. The Aero Club is
an instrumentality of the Air Force, established and managed
according to Air Force Regulation 215-12. The plane that crashed
was owned by the Aero Club and rented by Kissick. The plane was
kept at a lake on the Air Force base. The three passengers were
civilians. Aero Club members are authorized to rent the Club's
planes and may fly with non-member civilian passengers if Air
Force regulations are satisfied. Of primary concern in this case
is the requirement that passengers sign AF Form 1585 agreeing not
to bring a claim against "the US Government and/or its officers,
agents, or employees, or Aero Club members . . . for any loss,
damage, or injury to my person or my property which may occur
from any cause whatsoever . . . ."
Prior to departure, Supervisor of Flying Steven Wright
directed Jonsen, LeBlanc, and Schmierer to complete and sign Air
Force Form 1585, Covenant Not to Sue and Indemnity Agreement, and
the data in the emergency notification section of an Aero Club
membership application. The passenger only needs to print his
name near the top and sign and date the bottom to complete the
Covenant Not to Sue. Wright did not explain the forms in any
detail to Jonsen, LeBlanc and Schmierer, but he testified that he
"usually tell[s] people who go flying: `This is a covenant not
to sue in the event of an accident. It indicates that you won't
sue the Air Force or the Aero Club.'"
Wright also checked Kissick's qualifications, and
reviewed the flight plan and weather with him. Although Wright
did not specifically discuss the risks of flying in a small
aircraft with the passengers, he testified that they nonetheless
"knew about the limitations regarding the weather and the
aircraft, the size, the weight and all that [because t]hey were
all present and, I assumed, listened to this conversation that
was going on."
Following the accident, the widows of Jonsen, LeBlanc
and Schmierer filed wrongful death claims against the Kissick
estate. Kissick asserted as an affirmative defense that AF Form
1585 barred all claims. The parties made cross-motions for
summary judgment regarding the effect to be given the covenant.
In addition, Kissick argued that Air Force regulations preempted
plaintiffs' state tort claims. The trial court ruled that
federal preemption was not an issue, and strictly interpreted the
form according to state law. It concluded that the agreement did
not bar wrongful death actions because "[t]he covenant doesn't
even talk about death. . . . It is ambiguous. The ambiguity
must be construed against the government, against the parties
seeking to rely on the exculpatory provision." Kissick sought
Kissick contends that respondents' claims are barred by
operation of the preemption doctrine since signing the covenant
not to sue was required by an Air Force regulation. Kissick also
asserts that inclusion of the agreement in a regulation alters
the court's review authority and requires the Aero Club's form to
be interpreted like a statute or regulation instead of like other
exculpatory contracts. If the covenant is interpreted as a
statute or regulation, the purposes of the enacting body and the
plain language of the regulation will be given primary
consideration, and the covenant will not be subjected to the
strict scrutiny that exculpatory clauses customarily must survive
to be upheld. In Kissick's view, in enacting the regulation the
Air Force intended to shield itself from all liability, and the
omission of the word "death"is a technicality that should not
act to interfere with the regulation's clear purpose.
Cases have evaluated covenants not to sue promulgated
by the federal government in accordance with state law as though
the parties thereto were private individuals or entities. Rogow
v. United States, 173 F. Supp. 547 (S.D.N.Y. 1959), was an action
by the widow of a free lance writer who died when the Air Force
plane on which he was a passenger crashed. Prior to the flight,
Mr. Rogow signed a covenant not to sue that was similar to the
Aero Club's agreement except that it expressly released claims
arising "on account of my death." Id. at 550-51 n.7. The court
applied New York law to interpret the covenant and found that it
did not bar the claim.1 Further, even though one can infer that
the covenant was the product of administrative regulations, the
court did not interpret it differently from similar private
covenants. See cases cited id. at 551-52.
A similar situation was considered in Montellier v.
United States, 202 F. Supp. 384 (E.D.N.Y. 1962), aff'd 315 F.2d
180 (2nd Cir. 1963). Plaintiff's husband, a civilian reporter,
died in the crash of an Air Force plane after signing a covenant
not to sue. The covenant resembled the Aero Club's except that
it included "death." The court interpreted the covenant in light
of Massachusetts's Death Act and held that the covenant did not
bar plaintiff's action. Id. at 394. In deciding whether Mr.
Montellier had assumed the risk of a crash, the court relied on
cases in which the defendant was not a governmental entity. See
also Green v. United States, 709 F.2d 1158, 1165 (7th Cir. 1983)
(in a medical malpractice action against an Air Force doctor the
effect of a release from liability must be determined according
to the law of the state where the tort occurred); 1 S. Speiser &
C. Krause, Aviation Tort Law 3:53, at 300 (1978) (government
pre-flight covenants are governed by state rather than federal
law). In the absence of a direct conflict, state law is
only preempted "when Congress intends that federal law occupy a
given field." California v. ARC America Corp., 490 U.S. 93, 100
(1989). There has been no showing that Congress intended to
occupy the state tort field when it authorized the Secretary of
the Air Force to promulgate regulations regarding Aero Clubs.
The existence of regulations governing the operation of Aero
Clubs is not enough to find that state tort actions are
preempted.2 The applicable regulation3 merely requires
passengers to execute the form covenant not to sue. The
regulation does not suggest that the covenant should not be
construed according to state law. If federal law was intended to
govern the meaning of the covenant, this intention could have
been directly stated. Similarly, if the regulation itself had
been meant to bestow immunity, that intention could readily have
Based on the foregoing, we conclude that the covenant
is to be construed like a covenant between private parties in
accordance with Alaska law.
B. The Exculpatory Agreement as Interpreted by State Law
As noted, the trial court ruled that the covenant not
to sue was not a bar to respondents' claims under state law. The
court noted that exculpatory agreements are strictly construed
against the party seeking immunity from suit and found that since
the word "death"was missing from the covenant, the term "injury"
was ambiguous and must be construed to exclude death. We agree.
Although there are no Alaska cases directly on point,4
it is well settled that ambiguities in a pre-recreational
activity exculpatory clause will be resolved against the party
seeking exculpation, and that to be enforced the intent to
release a party from liability for future negligence must be
conspicuously and unequivocally expressed. See, e.g., Gross v.
Sweet, 400 N.E.2d 306, 309 (N.Y. 1979) ("[I]t has been repeatedly
emphasized that unless the intention of the parties is expressed
in unmistakable language, an exculpatory clause will not be
deemed to insulate a party from liability for his own negligent
acts."). Ferrell v. Southern Nevada Off-Road Enthusiasts Ltd.,
195 Cal. Rptr. 90, 95 (Cal. App. 1983), is representative.
[T]o be effective, an agreement which
purports to release, indemnify or exculpate
the party who prepared it from liability for
that party's own negligence or tortious
conduct must be clear, explicit and
comprehensible in each of its essential
details. Such an agreement, read as a whole,
must clearly notify the prospective releasor
or indemnitor of the effect of signing the
The efficacy of this salutory rule
is especially applicable in the case before
us in which the adhesive agreement was
prepared by one of the purported releasee-
indemnitees, and was presented on a take-it-
or-leave-it basis as a condition of being
allowed to enter the race.
Professors Williston and Prosser have also expressed
the view that exculpatory provisions are disfavored.
Generally, an indemnity agreement
will not be construed to cover losses to the
indemnitee caused by his own negligence
unless such effect is clearly and
unequivocally expressed in the agreement.
A promise not to sue for future
damage caused by simple negligence may be
valid. Such bargains are not favored,
however, and, if possible, bargains are
construed not to confer this immunity.
15 S. Williston, A Treatise on the Law of Contracts 1750A, at
143-45 (3d ed. 1972) (footnotes omitted); see also W. Keeton, D.
Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of
Torts 68, at 483-84 (5th ed. 1984) (footnotes omitted):
If an express agreement exempting the
defendant from liability for his negligence
is to be sustained, it must appear that its
terms were brought home to the plaintiff; and
if he did not know of the provision in his
contract, and a reasonable person in his
position would not have known of it, it is
not binding upon him, and the agreement fails
. . . . It is also necessary that the
expressed terms of the agreement be
applicable to the particular misconduct of
the defendant, and the courts have strictly
construed the terms of exculpatory clauses
against the defendant . . . . If the
defendant seeks to use the agreement to
escape responsibility for the consequences of
his negligence, then it must so provide,
clearly and unequivocally, as by using the
Courts in a number of contexts have recognized that an
ambiguity exists as to whether the term "injury"includes death.
Tobin v. Beneficial Standard Life Ins. Co., 675 F.2d 606 (4th
Cir. 1982) (clause in insurance policy which excluded coverage
for injury found to be ambiguous with respect to whether injury
included death; this ambiguity was resolved against the insurer);
Ziolkowski v. Continental Casualty Co., 7 N.E.2d 451 (Ill. 1937)
("injury" in insurance policy exclusion did not include death);
Cal-Farm Ins. Co. v. TAC Exterminators, 218 Cal. Rptr. 407, 411
(Cal. App. 1985) (whether "injury"includes death held to be
ambiguous).5 In view of this ambiguity, the rule of construction
disfavoring exculpatory agreements applies. The covenant
therefore does not bar respondents' claims.
The decision of the superior court is AFFIRMED.
COMPTON, Justice, dissenting.
For the purpose of this case, I will assume that the
court's decision on federal preemption is correct. I will assume
also that the Covenant Not to Sue and Indemnity Agreement should
be construed according to state law. However, I am unpersuaded
that the covenant is ambiguous, and therefore dissent.
The covenant, signed by Otto Schmierer, Alan Jonsen and
Ernest LeBlanc, provides:
I, for myself, my heirs, administrators,
executors, and assignees, hereby covenant and
agree that I will never institute . . . any
demand, claim, or suit against . . . Aero
Club members, participants, [or] users, . . .
for any loss, damage, or injury to my person
or my property which may occur from any cause
whatsoever as a result of my participation in
the activities of the Aero Club.
The statute under which the personal representatives of
the estates of each of the above signators are suing the estate
of Aero Club member Michael W. Kissick, AS 09.55.580, provides
for recovery of an amount exclusively for the benefit of the
decedent's spouse, children or other dependents, if there are
any, or the decedent's estate, if there are not. If there is a
spouse, children or other dependents, the award should fairly
"compensate for the injury resulting from the death"considering
at least the following factors: "(1) deprivation of the
expectation of pecuniary benefits to the beneficiary or
beneficiaries . . .; (2) loss of contributions for support; (3)
loss of assistance or services . . .; (4) loss of consortium; (5)
loss of prospective training and education; (6) medical and
funeral expenses." As is clear from the statute and cases
construing it, see, e.g., Tommy's Elbow Room, Inc. v. Kavorkian,
727 P.2d 1038 (Alaska 1986), it is injury to beneficiaries for
which compensation is being awarded, the compensation
representing losses of various kinds reduced to dollars and
In construing the covenant, the court declines to apply
the "reasonable construction"rule articulated in Manson-Osberg
Co. v. State, 552 P.2d 654, 659 (Alaska 1976), and similar cases.
Op. n.4. However, reasonable construction is intended to resolve
ambiguities ("unambiguous language . . . as 'reasonably
construed'"). Here the court strictly construes "injury" to
create an ambiguity, implicitly conceding that the language in
the covenant, reasonably construed, is not ambiguous. Otherwise,
Manson-Osberg adds nothing to the debate. Furthermore, "injury"
is construed without reference to the language preceding and
following it, and without reference to the statute under which
the suit has been brought.
I am incredulous that the phrase "any loss, damage, or
injury to my person or my property"can be construed, whether
"reasonably" or "strictly," to exclude death. This is
particularly so in the context of AS 09.55.580. For this reason
alone I do not agree that the covenant does not state a viable
Even if the language in this covenant is ambiguous, it
is to be strictly construed only against the party who prepared
However, it must be remembered that Michael W. Kissick did not
prepare the covenant at issue; the United States Air Force did.
It is Michael W. Kissick's estate, not the United States Air
Force, that is seeking to enforce this covenant. Thus I question
application of the strict construction rule at all. If the
strict construction rule is inapplicable, the covenant should be
upheld as stating a viable defense to the wrongful death actions.
1 Evidently, courts in New York "refused to give effect to
releases of this kind where the injured plaintiff had not
received a gratuitous benefit from the defendant, such as a free
pass." Rogow, 173 F. Supp. at 551. It was important to the
court that Rogow had been hired by the Air Force to write the
script for a recruiting film, and that the Air Force had
suggested that he fly on military planes to gather information.
Thus, Rogow had not received a gratuitous benefit from the Air
Force. In this regard the case may be distinguished from the
present dispute as the passengers in this case would have
received a gratuitous benefit if the plane had not crashed.
2 See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984)
(recovery of damages based on state law is not preempted even
though the generation of nuclear power is exclusively regulated
by a federal agency).
3 AFR 215-12, 2-15 provides:
AF Form 1585, Covenant Not to Sue and
Indemnity Agreement. Aero club members or
passengers who are not active duty members of
the Armed Forces of the United States will
not operate or ride in an aero club aircraft
until they execute AF Form 1585. A new
covenant must be accomplished annually. A
parent or legal guardian will execute the
document on behalf of a minor.
4 In a line of cases interpreting indemnity agreements in
construction contracts allocating the risk of injuring third
parties, we have held "that the unambiguous language of an
indemnity clause as `reasonably construed' should be given
effect, even if it does not contain words specifying indemnity
for the indemnitee's own negligence." Manson-Osberg Co. v.
State, 552 P.2d 654, 659 (Alaska 1976); see also Burgess
Construction Co. v. State, 614 P.2d 1380 (Alaska 1980); CJM
Constr., Inc. v. Chandler Plumbing & Heating, Inc., 708 P.2d 60
(Alaska 1985). We are unwilling to apply this approach in a non-
commercial setting. The situation presented in these cases can
be distinguished from the current one in a number of respects:
owners and contractors are usually in essentially equal
bargaining positions; contractors can incorporate the cost of
insurance to cover indemnification into their bids; and the
interpretation of these agreements does not affect the injured
party's recovery, but only who pays it.
5 There is also contrary authority. See Falkner v. Hinckley
Parachute Center, Inc., 533 N.E.2d 941 (Ill. App. 1989).