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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State Farm Fire & Casualty Co. v. White-Rodgers Corp. (9/26/2003) sp-5738

State Farm Fire & Casualty Co. v. White-Rodgers Corp. (9/26/2003) sp-5738

     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,


COMPANY,                 )    Supreme Court No. S-10530
                Plaintiff,          )    U.S. District Court  No.
A01-146CV (JKS)
                      v.                                        )
)    O P I N I O N
STATE  INDUSTRIES,  INC., and   )    [No. 5738  -  September  26,
SEMCO ENERGY, INC. d/b/a/          )
               Defendants.         )

          Certified  Question from  the  United  States
          District  Court for the District  of  Alaska,
          James K. Singleton, Jr., Judge.

          Appearances:    Rod  R.  Sisson,   Sisson   &
          Knutson, P.C., Anchorage, for Plaintiff State
          Farm  Fire & Casualty Co.  Patrick D.  McVey,
          Riddell  Williams P.S., Seattle,  Washington,
          Thomas  A.  Matthews  and  Thomas  L.  Hause,
          Matthews  &  Zahare,  P.C.,  Anchorage,   for
          Defendants  White-Rodgers  Corp.  and   State
          Industries,  Inc.  Madelon M. Blum,  Lynch  &
          Blum,  P.C.,  Anchorage, for Defendant  SEMCO
          Energy, Inc., d/b/a ENSTAR Natural Gas Co.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          PER CURIAM.


           In 1995 a natural gas explosion destroyed the home  of

William  and  Sally Brook.  Their insurer, State Farm,  paid  the

Brooks'  property damages.  Nearly six years after the explosion,

State  Farm  sued in federal court to recover its  payments  from

three  companies  whose  allegedly faulty products  or  negligent

actions  caused the explosion.  On certification from the federal

court, we now consider whether State Farm's claim for the Brooks'

property  damages is covered by Alaska's two-year "tort"  statute

of  limitations or its six-year statute of limitations "for waste

or  trespass upon real property."  Because we have recently  held

that the six-year statute for "trespass" attaches broadly to  any

alleged  interference  with  a possessor's  property  rights,  we

conclude that the six-year limit governs State Farm's claim.


          This case arises on undisputed facts:

                On  March 23, 2001, State Farm  Fire  &
          Casualty  Company  ("State Farm")  filed  its
          original complaint, seeking to recover  money
          it  paid out to William and Sally Brook  when
          their  house  was damaged in an explosion  on
          March 25, 1995.  State Farm alleges that  the
          explosion  was caused by a natural  gas  leak
          that    State   Farm   traces   to   products
          manufactured, sold, or supplied by Defendants
          White-Rodgers Corporation, State  Industries,
          Inc.,  and  Semco Energy, Inc.  d/b/a  Enstar
          Natural Gas (collectively "Defendants").
                More  specifically, State Farm  alleges
          that  Defendant Enstar negligently inspected,
          installed, and/or maintained the natural  gas
          service  regulator,  which  controls   (i.e.,
          reduces) the pressure of gas supplied to  the
          residence  from the higher "street  pressure"
          of  the  main  gas supply line.   State  Farm
          further  alleges  that  a  White-Rodgers  gas
          control valve installed on a State Industries
          water heater was defective and/or negligently
          designed  and/or  manufactured,  because   it
          released  gas  when exposed  to  the  "street
          pressure" of the main gas supply line.
                Defendants  moved for summary  judgment
          arguing   that  State  Farm's  real  property
          claims  were not brought within the  two-year
          statute   of  limitations  of  AS  09.10.070.
          State  Farm concedes that the action was  not
          commenced within two years, but contends that
          the   six-year  statute  of  limitations   of
          AS  09.10.050  applies to its  real  property
           At  the  time  pertinent  to State  Farm's  claim,  AS

09.10.070 provided in part: "A person may not bring an action . .

.  for  any injury to the person or rights of another not arising

on  contract and not specifically provided otherwise . . . unless

the  action  is  commenced within two years."1  In  contrast,  AS

09.10.050  provided  in  part: "Unless the  action  is  commenced

within  six years, a person may not bring an action  .  .  .  for

waste  or  trespass upon real property[.]"2  In  considering  the

defendants'  summary judgment motion, the federal district  court

predicted  that the six-year trespass statute would likely  apply

to  State  Farm's claim.  To support this conclusion,  the  court

cited  McDowell v. State,3 which at that time was our most recent

decision  interpreting these two- and six-year  statutory  limits

for  similar  claims.  Nevertheless, because it found  no  Alaska

Supreme Court case directly on point, the federal court certified

the  matter  to us for resolution under Alaska Rule of  Appellate

Procedure 407.4  We granted the federal court's request  and  now

answer the certified question.5


            When  the  federal  court  issued  its  certification

request, our case law left the certified question unsettled.   In

McDowell  v. State, we had declined to read the six-year  statute

of  limitation's  reference as adopting  the  narrow,  historical

distinction between "trespass" - a direct invasion of property  -

and  "trespass  on  the  case" - an indirect  invasion;6  looking

instead  to  "the plain or common meaning of the term,"  we  held

that  AS  09.10.050's  six-year limit  for  "trespass  upon  real

property"  "is  not restricted to actions that  allege  technical

trespass,   but   instead  includes  actions   that   allege   an

interference with the possessor's property rights."7  But as  the

federal  court  recognized in its certification  order,  McDowell

might  not  control the present case.  The complaint in  McDowell

alleged  an  interference with exclusive possession caused  by  a

direct  invasion  onto the plaintiff's land - spilled  or  leaked

petroleum  seeping  from  adjacent  property;8  arguably,   then,

McDowell's broad reading of AS 09.10.050 might not be dispositive

here, since State Farm's complaint alleges no direct, trespassory

entry onto the Brooks' property.

          After the federal court issued its certification order,

however,  we resolved this uncertainty in Fernandes v.  Portwine,

squarely extending McDowell to a nuisance claim that entailed  no

direct   trespassory  invasion.9   Confirming  McDowell's   broad

reading  of  the  six-year  trespass  statute,  our  decision  in

Fernandes  "look[ed] to the type of injuries claimed, as  opposed

to the causes of action pled,"10 concluding:

          "Trespass"  has  both a narrow  and  a  broad
          meaning.   The  narrow meaning refers  to  an
          unlawful entry upon the land of another.  The
          broad  meaning encompasses, as we  recognized
          in  McDowell  in  a  statute  of  limitations
          context,  any  "unlawful  interference   with
          one's  person,  property,  or  rights."   The
          broader  definition  here,  as  in  McDowell,
          determines   the  meaning  of  AS  09.10.050.
          Using   this   definition,   the   Portwines'
          nuisance    claims   were   encompassed    by
          AS 09.10.050.[11]

            The  defendants  in  the  present  case  attempt   to

distinguish  Fernandes, arguing that State Farm's  claim  "sounds

in"  products  liability or tort and alleges no "unlawful"  entry

onto  or  interference with the Brooks' property.  But under  the

reading  of  AS  09.10.050 we adopted in McDowell and  Fernandes,

these  distinctions have no legal consequence.   Looking  to  the

injuries  claimed, rather than to the cause of  action  pled,  we

find  that  State  Farm's claim for property  damages  alleges  a

substantial  interference with the Brooks' right to  possess  and

use  their  residence;  and because this claim  alleges  wrongful

conduct that would be actionable if proved, that is, conduct that

would  make  the defendants legally liable for the  damages,  the

nature of the alleged interference is "unlawful," as required  by

Fernandes.   We  thus hold Fernandes to be controlling  precedent



           Given  the undisputed statement of facts certified  by

the  federal  court,  we  conclude that the  six-year  "trespass"

statute  of  limitations  in AS 09.10.050  governs  State  Farm's


1AS  09.10.070  was amended in 1997, after the Brooks'  cause  of
action arose, but the parties agree that the pre-1997 version  of
the  applicable  statute of limitations applies to  State  Farm's
claims.   Moreover,  the  parties do not contend  that  the  1997
amendments would have any effect here, even if they applied.
2Though AS 09.10.050 was recently amended in other respects,  its
trespass provision remains substantially identical.
3957 P.2d 965 (Alaska 1998).
4Alaska Rule of Appellate Procedure 407(a) authorizes this  court
to   answer  "questions  of  law  of  this  state  which  may  be
determinative  of the cause then pending in the certifying  court
.  . . [if] there is no controlling precedent in the decisions of
the supreme court of this state."
5The  United  States District Court actually posed  two  separate
questions:  whether  AS  09.10.050 would apply  to  "any  alleged
negligent  or other tortious injury to real property"  and,  more
specifically, whether State Farm's claim in this case constitutes
"waste or trespass upon real property" under that provision.   We
choose to focus on the second, more specific question, finding it
unnecessary  to  decide  whether the six-year  time  limit  would
necessarily govern all claims for negligent and tortious injuries
to  real property.  Cf. Toner for Toner v. Lederle Lab., Div.  of
Am.   Cyanamid  Co.,  779  F.2d  1429,  1433  (9th   Cir.   1986)
(recognizing that a court accepting certification  is  not  bound
by  the  certifying  court's phrasing and  "may  reformulate  the
relevant state law questions as it perceives them to be, in light
of the contentions of the parties").
6957 P.2d at 969-70.
7Id. at 970.
8Id. at 967, 970.
956 P.3d 1, 5-6 (Alaska 2002).
10Id. at 6 (approvingly quoting superior court's decision).
11Id. (footnotes omitted).