Gerrish v. Clemens, Seibu Corp., State of Alaska (Drunk
driver, bar negligence case). Significant settlement for parents of two
boys killed by drunk driver. This case started MADD—Mothers Against
Drunk Driving—and got the Girdway highway pathway built. Alaska
Superior Court, Anchorage. The Seibu bar at Alyeska Resort
grossly overserved a patron—approximately 20 drinks over a 4 or 5 hour
period according to eyewitnesses found by investigation. The driver
then left the bar and drove several hundred yards in a rental vehicle
and mowed down two young boys and their dog as they walked on the edge
of the highway from the resort, as the State of Alaska had not built
the pathway along the highway as it previously promised to do. The
insurance company for the driver was forced to admit its policy was
unlimited after it misrepresented that its policy had a limited Rule 82
provision. A false provision was inserted into the policy produced in
REPRESENTATIVE VERDICTS AND SETTLEMENTS
MOTOR VEHICLE CASES
Dykman v. Davis.
(Drunk driver case). $6,122,000 judgment plus interest at 10.5 % after
jury verdict for car passenger. Alaska Superior Court,
Anchorage. A passenger suffered a cervical spine fracture and
quadriplegia. Allstate defended driver and alleged the passenger was
negligent for not wearing a seatbelt and was negligent for riding with
an intoxicated driver. Expert testimony proved the passenger was
wearing a seatbelt. The jury awarded $7,000,000 and reduced it by 25 %
for riding with an intoxicated driver. Total judgment awarded,
including interest and attorney fees $6,122,000, plus ongoing interest
at 10.5 %. Allstate had contended a verbal settlement occurred,
precluding any trial. The Alaska Supreme Court did not agree. See Davis
v. Dykman, 938 P.2d 1002
Kincheloe v. MEA, MTA, State of Alaska.
(Snowmobile, roadway maintenance and construction case). $300,000 jury
verdict for death of a young male driver of a snowmobile on a
pathway in the highway right-of-way who collided with two guy wires not
marked with mandatory high visibility safety guard wraps. Alaska
Superior Court, Anchorage. The wires were trespassing on state highway
right of way—Eagle River Loop Rd. The snowmobile was legally on a
pathway along Eagle River Loop near a newly built bridge for that
pathway, built by the state. The state ignored the illegal wires which
were clearly visible and literally within the area of the construction
project. Following the verdict, MEA and many other electrical and phone
utilities across Alaska put high visibility guy wire wraps on guy
wires, as required by the National Electrical Safety Code.
Potter v. State of Alaska.
(Negligent Roadway Maintenance/Design case). Confidential settlement
for the parents of a young girl hit and killed by motorist due
to negligent lack of pedestrian crossing warnings, negligent raising of
speed limit, and failure to have pedestrian tunnel or bridge walkway at
Montana Creek. This case got the Montana Creek pedestrian tunnels
built. Alaska Superior Court, Palmer. State of Alaska failed to provide
road signs warning approaching motorists of the pedestrians crossing
the highway after purchase of campgrounds straddling the highway at
Montana Creek Park. Instead of lowering the speed limit, it raised the
speed limit from 55 to 65 mph without proper study of consequences.
During bridge re-construction after a flood of Montana Creek, the state
had eliminated previously existing pedestrian crossings under the
bridge, forcing the public to walk over the high speed highway to get
to the mouth of Montana Creek for salmon fishing. After the settlement,
the state constructed pedestrian tunnels to eliminate this threat to
Reiley v. State Farm.
(Automobile collision, UIM case). Arbitration verdict of $2,500,000 for
a young man who was seriously injured when a pickup crossed
into his lane causing a head-on high speed collision. Multiple policies
were discovered to be available to “stack” multiple underinsured
motorist coverages (UIM). The plaintiff had a high future earning
Crebs v. Hall. (Automobile
crash case). $200,000 jury verdict due to low back “whiplash”. Alaska
Superior Court, Anchorage. A female passenger sustained low
spine injuries when the pickup she was riding in collided with an
automobile that turned right off Muldoon and then immediately turned
left, attempting a U turn across two lanes.
Haynes v. Smith. (Automobile
crash case). Bench verdict of $250,000 for passenger who suffered
cervical injury and severe chronic pain due to whiplash when
a pickup was struck from behind by another large pickup at relatively
low speed. Alaska Superior Court, Anchorage.The passenger had a
previous serious cervical injury that he had recovered from before the
collision. Radiology and medical opinions established severe
aggravation and chronic pain imposed on pre-existing condition.
Farrally v. Price-Ahtna.
(Northslope Truck crash). Confidential significant settlement for
family of man killed when a semi-tractor/trailer combination cut a
corner on a downhill sloping portion of the Haul Road and
crashed into a pickup coming uphill. Alaska Superior Court. Fairbanks.
The defendant alleged the pickup driver was speeding. Investigation and
accident reconstruction revealed the tractor-trailer was in the wrong
lane on the inside of the curve and the pickup driver was traveling at
a slow speed.
Fleming v. Sinnema. (Trucking
case). Confidential significant settlement for passenger injured when
trailer load fell on Subaru. Alaska Superior Court,
Anchorage. Icy trailer loaded with 40,000 lbs of slick and icy steel
beams suddenly stopped at intersection, and the load was only
restrained by 3 fabric straps. The slick beams slid on the trailer and
the straps were instantly cut by the edges of the beams which toppled
onto an adjacent Subaru stationwagon, striking and pinning the
passenger who suffered a significant head injury. When the steel was
being loaded on the trailer at the Anchorage Port, the longshoreman
loading the steel questioned the adequacy of the fabric straps
Pennington v. State of Alaska.
(Snowplow case). Confidential significant settlement for wife of pickup
driver killed when a state snowplow crossed into oncoming traffic.
Alaska Superior Court, Kenai. Near Sterling, the snowplow operator had
put the blade down too far and the snowplow “rode the blade” into the
oncoming pickup, crushing the driver’s side and injuring the wife on
the passenger side as well.
Nimmer v. Mariman. (Trailer
hitch case). Confidential lifetime settlement for small child and
parents due to boat trailer coming off its hitch and going into
oncoming traffic near Homer. Alaska Superior Court, Kenai. The
hitch pin had not been secured by its cotter safety key and the hitch
pin worked its way out, causing the boat and trailer to come unhitched
and cross into the oncoming lane where the trailer tongue speared an
oncoming stationwagon, hitting the young boy. State Farm failed to
accept a policy limits offer for full Rule 82 and it was forced to
agree to full liability for all damages regardless of the policy limit.
Kasparek v. Delta Western.
(Pickup/van collision). Confidential lifetime settlement for two young
boys whose parents were killed and who were injured themselves
when a van crossed into their lane causing a head-on collision near
Portage. Alaska Superior Court, Anchorage. Two very young boys were in
the backseat of a van which was hit by a pickup carrying an engine to
Anchorage, killing both parents. The road was slick with ice and the
pickup was going too fast for conditions. Liability of Delta Western
was initially denied as the pickup was privately owned, but facts
showed the engine was loaded by and being carried with Delta Western’s
Horning v. Halverson.
(Single Car Crash on Seward Highway). Confidential lifetime settlement
for young man seriously injured when car he was riding in went out of
control on Seward Highway curve and collided with the cliff.
Alaska Superior Court, Anchorage. The car was heavily insured under a
commercial policy. Investigation revealed it was traveling at very high
speeds prior to the crash and accident construction proved the
plaintiff was thrown out the back window in spite of wearing a seat
Osborne v.Allstate, State Farm.
( Child death near school). Confidential settlements in case where
child hit by car as she was crossing Lake Otis to Service Henshew
school. There was no traffic light in spite of the need of
many children to cross. Investigation and accident reconstruction
revealed the oncoming driver’s headlights were off, a streetlight was
out, and the dark car was invisible to the decedent. A UIM claim was
brought as well and State Farm conceded its policy had Alaska UIM
limits, though it was originally a North Dakota policy with lower
limits. Following the settlements and a public campaign by deceased’s
mother, the Municipality of Anchorage placed a stop light at the
Rogers v. Great American.
(Bus/pickup collision). Confidential settlement for family of tour bus
driver killed when a pickup crossed into the bus’ lane and collided
with it, pinning the bus driver in the bus which then burned.
Two passing soldiers were unable to extract him in spite of heroic
efforts. After a settlement for the liability coverage of the pickup, a
large commercial policy was available for a UIM claim and the insurer
conceded the UIM limits matched the large liability limits, though the
face of the policy showed low UIM limits.
Gittlein v. Chickaloon Tribal Council.
(van/car collision). Confidential significant settlement for family of
older woman killed when tribal van collided with the rear of the car,
throwing the car into oncoming traffic. Investigation and accident
reconstruction, including examining the “black box” of the van revealed
it was traveling at a high speed and did not brake prior to the
INSURANCE BAD FAITH CASES
Dykman, Davis v. Allstate Insurance Co.
(auto liability insurance bad faith, fraud, abuse of process ).
Confidential settlement of the case brought to recover a $6,122,000
excess verdict due to failure to accept a policy limits offer, a
failure to protect Mr. Davis in Dykman v. Davis, as well as for false
claims of a settlement. Alaska Superior Court, Anchorage. Alaska
Superior Court, Anchorage. At the time of settlement 10.5% interest had
boosted the judgment to well over $7,000,000.
Gallagher v. Westport Ins. Co (commercial
trucking “failure to offer UM/UIM insurance”, bad faith). Confidential
significant settlement for family where children killed and injured in
collision with bus. Alaska Superior Court, Anchorage. An
individual policy covering the pickup that collided with the bus and a
family policy existed and both had stackable UIM coverage. In addition,
Westport offered and sold its highest UM/UIM coverage for a commercial
policy for $1,000,000 which covered the family trucking business and
family members -- but excluded family members unless in business
vehicles. The insurer denied coverage. Alaska law required an offer of
UM/UIM $1,000,000/ $2,000,000. The Superior Court ruled the family
member exclusion was void under Alaska law.
Bergman v. National Casualty Ins. Co.
(commercial UM/UIM “failure to offer” and bad faith). Confidential
significant settlement for failure to offer matching limit of
UM/UIM coverage, and bad faith failure to investigate and offer correct
UM limit and full value of collision damage. Alaska Superior Court,
Bethel. Cab driver injured by uninsured motorist, and cab destroyed.
Insurer offered far less than fair value for cab and ignored injury
claim totally. $400,000 jury verdict obtained against uninsured
motorist. The insurer agent had not offered limits of UM/UIM equal to
liability coverage and up to $1,000,000/ $2,000,000 and the insurer did
not investigate suspicious sale documentation. Insurance agent produced
forged UM/UIM offer form. James Valcarce in Bethel was co-counsel who
obtained the verdict.
Wesley v. Allstate Insurance Co.
(auto uninsured motorist, medical payments bad faith). Confidential
significant settlement for daughter and mother due to wrongful
withholding of medical payments coverage and UM coverage.
Alaska Superior Court, Anchorage. A teenage girl passenger was severely
injured in a head-on collision. Her single mother had several other
children and was financially pressed to support the family. In spite of
an Allstate policy with medical payments coverage and uninsured
motorist coverage and in spite of medical evidence of a severe head
injury, Allstate refused to pay overdue medical bills unless the mother
agreed to an unfair UM settlement for less than one-half the UM limit
of $50,000. Allstate’s attorney then filed a Petition for approval of
the minor settlement, but the Probate Master detected what was
happening. The Master disapproved the settlement and ordered the mother
to get an attorney. She did not have one, relying instead on Allstate’s
attorney-- who she thought was her attorney.
Pittillo v. Allstate Insurance Company.
(auto UIM insurance and med pay bad faith). A confidential settlement
for a young man in a case brought for failure to investigate, disclose,
“stack”, and pay a UIM coverage and a medical payments
coverage from two Allstate policies. Alaska Superior Court, Anchorage.
The plaintiff was seriously injured when a passenger in an Allstate
insured auto of a friend. His family also had an Allstate policy. Both
policies had UIM coverage and medical payments coverage. Allstate paid
the liability coverage and medical payments coverage for the accident
auto. It paid the UIM coverage from the plaintiff’s family policy. It
did not disclose, offer, or pay the UIM coverage from the driver’s auto
policy and it used the family medical payments coverage to pay part of
the liability settlement.
Buehrle v. Allstate Insurance Co. (auto
UIM insurance bad faith). Confidential settlement for husband and son
in case brought for failure to investigate, disclose, “stack”, and pay UIM
proceeds from two family auto policies. Alaska Superior Court, Cordova.
Wife/mother was killed by drunk driver, whose car struck the family car
turning into the family driveway, throwing it into the family’s front
yard in front of son and injuring the surviving husband/father. The
parents had a policy, as did the son – both from the same Allstate
agency. Allstate did not disclose, offer or pay any of the UIM coverage
that was available from the son’s policy and it did not offer or pay
any of the UIM coverage from the parents’ policy for the son’s claims..
Gress v. Allstate Insurance Co. (auto
UM insurance bad faith). Confidential settlement for young woman in
case brought for failure to investigate, disclose, “stack”, and pay
UM proceeds from both an individual auto policy and a family auto
policy. Alaska Superior Court, Anchorage. The plaintiff was a passenger
on an uninsured motorcycle and was seriously injured when the
motorcycle pulled out in front of another car causing a collision. She
had an Allstate policy, and her parents had one also—both from the same
Allstate agency, but Allstate only paid her policy’s UIM coverage. It
did not disclose, offer, or pay any of the available UM coverage from
her parents’ policy.
Sims v. Allstate Insurance Co.
(auto UM insurance bad faith). Confidential settlement for young man in
case brought for failure to investigate, disclose, “stack” and pay
all UM and med pay coverage from both individual and family auto
policies. Alaska Superior Court, Anchorage. A young man was rendered
paraplegic as a passenger in an uninsured auto. However, he had an
Allstate policy with UM coverage. His parents had an Allstate policy
with UM coverage and a large med pay coverage. Allstate only paid the
young man’s UM coverage and did not disclose, offer or pay either the
parents’ UM coverage or the large medical payments coverage.
Martin v. Allstate Insurance Co.
(auto UIM insurance bad faith). Confidential settlement for estate and
mother of son killed in rollover for failure to investigate, disclose,
“stack” and pay all UIM coverage from both the negligent
driver’s policy and a family auto policy. Alaska Superior Court,
Anchorage. Allstate paid the negligent driver’s Allstate liability
coverage and the family policy’s UIM coverage, but not disclose or pay
the UIM coverage from the driver’s policy.
Larson v. Allstate Insurance Co.
(auto UM insurance bad faith). Confidential settlement for mother and
child of young man killed by uninsured motorist for failure to
investigate, disclose, “stack”, and pay all UM and medical
payments proceeds from two family auto policies. Alaska Superior Court,
Anchorage. Allstate paid UIM coverage from one auto policy, but did not
disclose or pay the UIM coverage from a family motorhome policy. It
also was supposed to pay the highest medical payments coverage from the
available policies, but paid the lowest.
Quincy v. Allstate Insurance Co.
(auto UIM insurance bad faith, fraud). Confidential settlement for
family of woman killed in collision in Kansas for failure to
investigate, disclose, “stack”, and pay all UIM and med payments
coverage from three policies. Alaska Superior Court, Anchorage. An auto
driven by the deceased’s husband was broadsided in an intersection by
an auto traveling at a very high rate of speed through an intersection,
killing the deceased and injuring her husband. They had three Allstate
policies with UIM coverage including a $1 million umbrella. Allstate
tried not to pay any UIM, but eventually paid one. Later, after being
sued numerous times for failing to “stack” multiple UM/UIM coverages in
other cases, Allstate paid part of a second UIM coverage and wrongfully
secured an “All Policies” release without disclosing the umbrella
policy UIM coverage. Medical payments coverages that covered funeral
expenses also were not paid.
Snitker v. Geico, GAB.
(auto UM bad faith). Confidential settlement for family of young man
killed by drunk driver after Geico refused to pay UM coverage,
then eventually offered one-half of policy. Alaska Superior Court,
Anchorage. The young man was mowed down in the street by a drunk driver
who then left the scene. The insurer’s adjustment agency GAB first told
the family multiple times no claim could be made. It then asserted the
young man was negligent and misrepresented that his per cent of
negligence would be deducted from the policy limit – instead of
deducting it from the total damages. The adjuster’s first report letter
was sanitized, but an unsanitized version was located with the original
incriminating comments intact.
Steilen v. Golden Rule Ins. Co.
(health insurance bad faith). Confidential settlement of bad faith case
for fraud and failure to investigate a health insurance claim of a
middle aged woman who was wrongfully denied health insurance benefits
for cancer. Alaska Superior Court, Anchorage. A Golden Rule
agent convinced her to change her mature Blue Cross policy to a Golden
Rule policy. It then denied coverage for subsequent lung cancer on the
basis of pre-existing conditions and failure to disclose pre-existing
conditions. She died in debt for huge medical bills. The agent did not
disclose a preexisting pleurisy condition and was not authorized to
take the application. The insurer did not investigate the circumstances
of the application or what the insured actually knew of her medical
Sparks v. Aetna Ins. Co.
(disability insurance bad faith). Confidential significant settlement
of bad faith case brought for wrongful cessation of long term
disability payments. Alaska Superior Court, Anchorage. The
insurer suddenly stopped payment of disability proceeds to disabled
insured, asserting new information showed no disability. In fact the
“investigation” showed no change for the better and no physicians of
the insured were contacted for opiniions, the insured was not
questioned, nor was any physical exam done. Co-counsel was Jeffrey
Rubin and Richard Harren.
Olson v. State Farm. (auto UM insurance bad faith). Confidential lifetime settlement of a bad faith case
for failure to investigate, disclose, “stack”, and pay three policies
with UM coverage for seriously injured teenager. Alaska Superior Court,
Anchorage. Multiple UM/UIM coverages from multiple policies have been
“stackable” in Alaska since 1991. The plaintiff was a passenger on a
4-wheeler driven by a drunk driver who was taking her home from a beach
party, but it flipped, throwing her into the trees and brush beside the
highway. He abandoned her, going back to the beach to get another
woman’s car. Another friend drove that car and the drunk driver back
and retrieved the plaintiff. They dumped her near the beach to simulate
another driver from the party had hit her as she walked on the beach
road. She survived with serious injuries. The plaintiff’s mother had a
State Farm policy with UM coverage. The automobile from the beach had a
State Farm commercial policy and the driver who borrowed it had a State
Farm policy and both had UM coverage. State Farm did not initially
disclose or offer the UM coverage from these two policies.
Lair v. Nationwide Ins. Co.
(auto UM and med pay insurance bad faith). Confidential lifetime
settlement for family for wrongful denial of UM claims,
medical payments claim and destruction of evidence. Alaska Superior
Court, Anchorage. A Nationwide insured driver was t-boned and seriously
brain injured while making a turn at an intersection. The insurer
represented its investigation showed the insured was the negligent
party. It offered only $3500 which was accepted. Later investigation
showed the insurer was told by eyewitnesses that the oncoming driver
was traveling at a very high speed well over the speed limit. The
original file and an eyewitness audio tape “disappeared” during the
case. The insurer did not pay the medical coverage and also ignored the
sizeable claims of the wife and daughter. Arbitration of these claims
during litigation resulted in a verdict of $750,000.
Ross v. Great American. (commercial
auto bad faith). Confidential settlement for husband and wife for
wrongful refusal to pay commercial UIM insurance. Alaska
Superior Court, Anchorage. A transmission repair business owner was
seriously injured in an auto collision with an uninsured motorist, and
had a large business policy with UM coverage. He could not work and he
and his wife lost the business after the insurer refused to pay
undisputed medical bills and lost income or to make any offer. Instead,
it forced an arbitration. A $1,200,000 verdict was obtained and then
suit was brought for additionally causing unnecessary distress, delay,
and loss of the business.
Kensinger v. Kemper Ins. Co.
(homeowner’s liability policy fraud/bad faith). Confidential settlement
of negligent weapon discharge case combined with settlement of claim
that the insurer engaged in fraud and misrepresentation on policy
contents. During underlying negligent shotgun discharge case against
resident of insured home, the insurer produced a policy with an
apparently limited Rule 82 endorsement. However, in fact the
endorsement was constructed and attached to the policy after the
shooting. It source and its date were concealed, including erasing this
information from the version of the policy produced to the plaintiff.
Nelson v. Alaska National Ins. Co.
(wrongful denial of coverage). Confidential settlement for man
seriously injured by stolen hotel van which had key in it and was not
checked by security guard. Alaska Superior Court, Anchorage.
Mandatory Best Western International security procedures violated
including key log kept by clerk and security guard procedures. After
Alaska National paid the settlement of the case against the local hotel
– a Best Western franchise hotel-- a claim was brought against the
franchisor, Best Western International. It was also an insured under
the Alaska National policy. The insurer claimed its policy was
exhausted, though it had two policy limits for two coverages—one for
business auto coverage and one for commercial general liability,
including hotel security operations. Further, the insurer exhausted its
business auto policy without notifying co-insured Best Western
International. Best Western International consented to a judgment and
assigned its indemnity claim against the hotel and its bad faith claim
against Alaska National to the plaintiff for a covenant not to execute.
AVIATION AND PRODUCT DEFECT CASES
Swanson v. Borg-Warner, Facet Aerospace. (Aviation/product
defect case). $6,677,840 verdict, including $5,000,000 of punitive
damages, due to aircraft crash and wrongful death caused by faulty
carburetor. Alaska Superior Court, Fairbanks. Pilot/guide of
PA-18 killed when faulty plastic carburetor float absorbed fuel, sank
and caused engine to quit during cruise due to an overly-rich mixture.
The pilot made an emergency landing, but the plane crashed and burned.
Investigation revealed fuel penetrated the float and that many other
failures had occurred. Other pilots who had failures testified, as well
as plastics experts, accident reconstruction experts. Filmed
experiments of engine failure when the float was forced down were shown
as well as NTSB report photos of another crash showing the inside of
carburetor bowl had “work polishing” due to the heavy float-- as also
seen in Swanson carburetor bowl. Defendant contended pilot error
including antlers on struts. Former longtime Alaska FAA inspector
testified to non-effect of external antlers. Manufacturer was found
reckless by the court, as it knew the plastic floats were defective and
misrepresented to the FAA that plastic was being degraded by new
lead-free fuels. Co-counsel Russ Dunn, Nelson Parrish, James Parrish.
Sheik v. Borg-Warner, Facet Aerospace.
(Aviation/product defect case). Confidential settlements for surviving
widow/mother and widow/grandmother due to aircraft crash and three
wrongful deaths caused by faulty carburetor. Alaska Superior
Court, Anchorage. Husband, grandfather and minor son killed near
Birchwood, Alaska when faulty plastic carburetor float caused the
engine of a PA-18 to quit on climb out after take-off due to
overly-rich mixture—causing a stall, crash, and fire. Investigation
revealed fuel penetrated this float and many other failures had
occurred. Co-counsel Russ Dunn, Nelson Parrish, James Parrish.
Following settlement of Sheik and Swanson, the manufacturer sent out
bulletins requiring replacement of the plastic floats with metal floats
when the carburetor was re-built.
Pennison, Barr v. Bell Textron. (Commercial
Aviation/Product defect case). Two confidential settlements for the
families of one oil worker who was killed and another who suffered
permanent severe injuries as a result of the crash of a Bell 205 A-1
helicopter in Cook Inlet following malfunction of the tail rotor.
Alaska Superior Court Anchorage. The helicopter was never recovered,
but the surviving pilot reported severe anti-torque forces by tail
rotor overcame the 100 mph forward speed and caused helicopter to
nearly go inverted so that he had to auto-rotate into the Inlet. A long
history of chain failures was found after numerous discovery trips and
depositions to the Bell factory. Bell eliminated the chain with a
retrofit following the settlements.
Aoki/Dawson v. Aero Engines, Inc.
(Commercial Aviation/product defect case). Two confidential significant
settlements in a case involving the death of one passenger and severe
injuries to a lone survivor of the crash of a DeHavilland Beaver
aircraft near Lake Creek, Alaska. Alaska Superior Court,
Anchorage. Two other passengers and the pilot also were killed when a
nearly new re-built engine failed due to a defectively installed
exhaust valve pushrod. Teardown of the engine revealed the defect
caused the engine failure and the negligent assembly of the engine with
a faulty, bent push rod that was forced into place. Mr. Mestas was lead
counsel for all claimants and obtained a settlement for all other
plaintiffs as well.
Schmierer v. Kissick.
(Aviation negligence case). Confidential lifetime settlement of
landmark case for the wife and children of a man killed in the crash of
a U.S. Air Force Aeroclub Cessna 185. that crashed above Burns Glacier
near Portage, Alaska. Alaska Superior Court, Anchorage The aircraft was
piloted into IFR conditions and in attempting to perform a 180 degree
turn, the aircraft impacted a snow covered ridge. Two other passengers
and the pilot were killed as well. A release signed by all passengers
prior to takeoff was declared null and void by the Alaska Supreme
Court. See Schmierer v. Kissick, 816 P.2d 188 (Alaska 1991). A defense
of a defective altimeter was shown to be bogus.
Sims v. Lowell. (Aviation
negligence crash). Confidential significant settlement for children of
woman killed in Cessna 170 B crash. An aircraft piloted out of
Summit Lake on a sightseeing trip crashed in the mountains between
Summit Lake and Soldotna. The float equipped plane had been flown down
into a small mountain valley containing a small lake, presumably for
sight seeing, and the aircraft was unable to climb back out of the
valley before crashing.
Luke, Tritt v. Air North (Commercial
Aviation negligence crash). Confidential significant settlements for
passenger and family of deceased passenger. Commercial Cessna 206
flight crashed north of Fort Yukon, Alaska in bad weather.
Alaska Superior Court, Ft. Yukon. Lower 48 pilots new to Alaska
proceeded to take Mr. Luke and Mr. Tritt on a charter flight north from
Ft. Yukon to Arctic Village and into IFR weather with the aircraft
icing up. Due to the ice, the aircraft was unable to clear a ridge when
attempting to climb out of a river valley and it crashed. Mr. Luke
survived and, in spite of serious spinal injuries, he saved the injured
pilot and co-pilot from dying of exposure after the crash. No emergency
gear was on board, but Mr. Luke provided sleeping bags and a carhart
suit from his belongings. The site was snowed in and inaccessible for 3
days. However, Mr. Tritt was pinned in the wreckage and died of
Toman v. Penn Air
(Commercial Aviation negligence crash). Confidential lifetime
settlement for passenger. A commercial Cherokee Six crashed after
takeoff at Portage Creek near Dillingham, Alaska. The pilot
took off uphill on a wet and soft gravel runway into a very light wind.
Three passengers were killed and one survived. Alaska Superior Court,
Anchorage. Investigation revealed severe overloading with large
passengers, gear, and fish boxes. There were witnesses to past
incidents when the same commercial pilot had overloaded the aircraft at
the same runway and had taken off in that condition.
Stafford v. Kust.
(Aviation negligence crash). Confidential lifetime settlement for
family of passenger. A PA-18 was piloted east of Anchorage and crashed
in the mountains. Investigation revealed the aircraft
encountered forecast turbulence, but proceeded. When flying toward a
high ridge, the pilot failed to detect that the aircraft would fail to
clear the ridge. An attempted last minute 180 degree turn caused a
stall and crash.
Sherrill v. Bear Lake Air Service.
(Commercial aviation maintenance negligence). Confidential settlement.
A Cessna 185 crash landed after an engine failure injuring a passenger.
Discovery revealed inadequate maintenance of the aircraft and previous
indications that the aircraft had significant engine problems both
prior to the flight and as the flight proceeded.
Inman v. Toyota (automobile product defect). Confidential lifetime settlement for Alaskan family.
A 10 year old Toyota pickup from Alaska was being driven by a brother
to another brother in Idaho when it slid out of control and off a
highway near Pendleton, Oregon. The pickup rolled, crushing the cab and
killing the driver. Montana U.S. District Court. Three attorneys from
three states coordinated to achieve success in this case alleging
defectively designed pickup roof structures. Quick action by Oregon
counsel preserved the pickup for analysis. Toyota asserted the law of
Oregon with an 8 year statute of limitations should apply, while
plaintiff asserted the law of Montana, with no such limitation.
Plaintiff filed an amicus curiae brief in a similar case before the
Montana Supreme Court, and it ruled in favor of plaintiff. Phillips v.
G. M. 995 P.2d .2d 1002 (Mont. 2000). Montana counsel was William
Rossbach and Oregon counsel was Jeffery Foote.
Newkirk v. Atlas Copco
(mining equipment defect). Confidential significant settlement for the
operator of a hard rock mining loader. Alaska Superior Court,
Bethel. The machine’s overhead protection shield failed when its one
non-recessed and rigid supporting arm encountered a projection from a
mine sidewall, severing the retention bolts and falling on the driver,
seriously injuring one arm. Discovery revealed previous similar
incidents and an engineering expert established that alternative, low
cost designs were easily available including recessing the support arm
and putting it on a post so that it could rotate when encountering
resistance rather than severing the bolts.
Smith, Brown v. Taiwan Recreation Products (inflatable
raft defect). Confidential settlements for two families due to wrongful
deaths of two teenagers when an inflatable raft split and sank.
Alaska Superior Court, Anchorage. Several teenagers on Adak Island were
rafting next to the shoreline in a plastic raft purchased from the Navy
PX. The cold water caused a seam to split and the teenagers were
spilled into the cold water and drowned. The raft material was not
suitable for cold temperatures, becoming brittle in temperatures below
50 degrees--though it was sold to the Navy with no temperature
Gorn v. Asp.
(Maritime injury captain) $ 1,200,000 bench verdict reduced by
comparative negligence and pre-existing condition to $550,000 net
verdict for captain of tender vessel. U.S. District Court,
Anchorage. The captain fractured his C-spine, that had been injured
previously and fused, when he slipped on hydraulic fluid from a deck
crane that had been leaking badly and which the owner would not repair.
The crane was replaced
during the suit.
Costello v. Forty-Niner Transport (maritime injury cook). Bench verdict of $165,000 for female cook injured on a gasoline tanker.
Alaska Superior Court, Kodiak. The cook was sitting in an unsecured
chair in the galley, as all secured seats were taken by the crew being
fed, when the tanker encountered rough seas in an area known for them.
The cook was thrown into a bulkhead and suffered shoulder injuries.
Stubblefield v. Exxon Corp., Exxon Shipping, Veco, Norcon. (Maritime
toxic injury due to negligent construction, negligent failure to warn).
Confidential settlement for crane operator seaman who suffered
permanent pulmonary system damage due to inhalation of oil mist and
other toxins on the Exxon Valdez oil spill cleanup. Alaska
Superior Court, Anchorage. A cleanup barge equipped with a crane,
generators, pumps, and hoses to spray hot water on the shoreline was
negligently constructed so as to funnel generator diesel exhaust into
the crane’s semi-enclosed cab. No warnings of the toxicity of the oil
mist which Exxon’s measurements showed was unsafe for workers who were
exposed 80-100 hrs/week. Mr. Mestas was the only Alaska attorney to
obtain confidential Exxon internal documents regarding Exxon’s
assessment of the Industrial Hygiene risks posed by the numerous
chemicals workers were exposed to during the spill cleanup.
Porter v. Northstar, Glomar II. (longshoreman/crane
injury). Confidential settlement for severe leg injury caused by
negligent crane operation. U.S. District Court, Anchorage. A
crane on a sem-submersible crane was being used to lower extremely
heavy “spudding” pipe of approximately 20,000 lbs. to a trailer.
Without direction to do so, the operator “pickled” a pipe a few feet
above the lowboy trailer where plaintiff was standing to secure the
pipe. The impact caused plaintiff to have to jump for his life as the
pipe careened off the trailer and his leg was severely damaged when he
landed off balance on one foot.
Daw v. Rivers Unlimited. (maritime
injury/ passenger) Confidential settlement for passenger on river taxi
on Copper River severely injured when boat ran aground at high speed. U.S.
District Court, Anchorage. The riverboat had unsecured seats in the
rear and a passenger catapulted into plaintiff on impact. The boat
operator was not sufficiently trained as to location of sandbars.
Wallin v. SERVS. (maritime
injury/fleet seaman) Confidential settlement for seaman severely
injured on land when attempting to retrieve very heavy equipment for a
vessel. Alaska Superior Court, Anchorage. The plaintiff was
assigned as a “fleet” seaman to maintenance of escort vessels at the
Port of Valdez including being the main skiff operator.
Center v. Spirit Of The North.
(maritime injury crabber deckhand). Significant settlement for a seam
injured while moving a damaged crabpot on deepwater crabber,
the large pot fell on plaintiff and severely injured him. Alaska
Superior Court, Anchorage. Crew was constantly ordered to proceed “full
speed ahead”, many pots were damaged and not enough crew to safely
handle the many pots and move them for launching off stern of vessel.
Jackson v. Golden Alaska Seafoods. (maritime
cook injury). Significant confidential settlement for a cook who was
severely burned by defective oven and dangerous actions of the captain
of a trawler. Alaska Superior Court, Anchorage. The cook was
looking at a large pot of boiling cheese and potatoes through the oven
door when the large trawler suddenly veered from its course to “wash
the bag”, without notice. The boiling contents scalded the cook’s feet
when the oven rack and pot came out of the oven due to lack of secure
racks in the oven and the vessel suddenly heeling over.
Holmstock v. ANPAC. (maritime
injury seaman). Significant confidential settlement for a seaman
injured during rescue operations caused by defective vessel sinking.
Crewmen were moving fish in totes and boxes on landing craft vessel to
offshore Korean freighter in building seas. The landing craft was
overloaded, had no port covers, and a leaking ballast tank. The ballast
tank began taking on more water on the last trip, the vessel listed,
water came on deck by wave action on the listing side and went in the
uncovered hatches. The vessel sank near the Korean vessel and the
captain was trapped when he became wound in rescue lines from the
freighter. Plaintiff, who had made it on board the freighter, dived
from the deck of the freighter with a knife, cut the captain out, and
held him as they were pulled up by another line. Plaintiff’s shoulder
was separated and injured, but he held on to the hypothermic captain.
Phillips v. FV Olympic
(maritime injury crabber deckhand). Confidential significant settlement
for a seaman was injured by crane operator as crab pots being stacked
while on Bering Sea. U.S. District Court, Anchorage. The
vessel should have been equipped with a knuckle crane rather than a
stick crane in order to fish the rough conditions in the Bering Sea.
While stacking pots, the crane operator swung a pot directly at the
plaintiff who had to grab it and hold of or be swept overboard. He only
held on with one arm and suffered a torn shoulder.
Russell v Kelly-Ryan. (maritime
crane injury). Confidential significant settlement for a construction
worker who was injured by vessel crane operator while helping unload
lumber from a vessel into a dump truck at a village. U.S.
District Court, Anchorage. The crane operator was unfamiliar with the
crane and insisted on pulling a trapped cable out of a load of glu-lam
beams by putting a side load on the crane. He did not warn the worker
on the truck who guided and unhooked each load. The cable toppled the
lumber and forced the worker to jump out of the very high truck bed to
avoid it and he severely injured his leg.
Hansen v. ARCO.
(Oilfield industrial negligence case) $2,500,000 jury verdict for
industrial equipment injury to North Slope valve shop worker.
Alaska Superior Court, Barrow. While reconditioning a valve in an ARCO
valve shop, a Veco worker suffered a severe high pressure hydraulic
injury to his dominant arm due to a faulty hydraulic pump supplied by
Arco. Case settled before final judgment award which would have been
near $3,000,000. Following the verdict, Arco and other oil companies
advised their staff of the companies’ duty to safeguard subcontractor
employees in their facilities.
Tom Moe v. SKS Eskimos, Inc. (Construction
negligence/workplace violence). Confidential settlement for a
subcontractor supervisor who was attacked and seriously injured by the
general contractor’s equipment supervisor. Alaska Superior
Court, Anchorage. After a conflict arose between these two over use of
the general contractor’s badly maintained equipment, the site
supervisor and headquarters personnel all failed to take steps to
assure the supervisor’s safety. The equipment supervisor had a serious
criminal record unknown to the general contractor, which had not
checked his past.
Ferguson v. Peak.
(Oilfield Industrial negligence). Confidential significant settlement
for oilfield worker injured on “Christmas tree”. Alaska
Superior Court, Fairbanks. During routine maintenance operations
another company’s worker accidentally struck an oilfield technician’s
arm with a heavy hammer while breaking loose a large nut. The extent of
the injury ended the technician’s ability to work in the oil patch
where he had extensive training and experience, including in marine
Buntrock v. Arco. (Oilfield
industrial negligence). Confidential significant settlement for
oilfield worker injured during construction of Gathering Center.
Alaska Superior Court, Anchorage. The plaintiff was attempting to read
gauges and had poor footing on raised platform that was constructed for
ongoing maintenance. When attempting to change position on catwalk,
slipped and fell injuring his back.
Cardon v. BP, Alyeska. (Oilfield
industrial negligence). Confidential settlement for worker injured in
BP Halon recovery unit when Alyeska Halon container rocketed into him.
Alaska Superior Court, Anchorage. Faulty gauge on Halon bottle was not
detected by Alyeska during a mandatory inspection of the tank as
procedures were not followed. When brought by Alyeska to be re-filled
in BP shop by Veco worker, the tank read zero. No mandatory BP
restraint procedure or system was in the shop. After opening the tank
valve, the tank took off like a rocket, hitting the plaintiff and
severely injuring his leg. Previous similar BP incidents elsewhere were
found in discovery.
Brunnell v. Watterson Const. Co. (construction
site negligence). Significant settlement for sheetrocker injured when
fell in uncovered floor hole. Alaska Superior Court,
Anchorage. During commercial building construction, electrical workers
had open holes in main floor for electrical access. They failed to
cover them consistently and had inadequate (too small) covers. When a
sheetrocker was moving along a wall, he stepped into a partially
covered hole, seriously injuring his hip.
Frary v. CVE. (electrical
negligence during construction). Significant settlement for family of
worker electrocuted during construction project. Alaska
Superior Court, Anchorage. While an electrical utility was having
construction done to expand its facility and headquarters at Glenallen,
a Teamster was delivering materials at night at the loading dock at the
construction site where a light was available. An uninsulated
transmission line crossed over the dock at a low height and was
invisible at night. The truck crane used by the Teamster contacted the
electrical line and he was killed. Construction photos showed cranes
and other equipment consistently less than legal distance from the
uninsulated transmission line in the utility’s back yard.
Knox v. Yoshimura, Mun. Of Anch.
(electrical negligence during construction). Significant settlement for
a painter electrocuted due to building’s illegal placement less than
legal distance from pre-existing electrical lines. Alaska
Superior Court, Anchorage. An apartment building was constructed less
than the legal minimum of 10 feet from a pre-existing municipal power
line. The city authorized the faulty construction and multiple
electrical and building inspectors failed to detect it during
construction. While removing overspray with his paint pole, it
contacted the wire and electrocuted him, causing serious injuries.
Kincheloe v. MEA, MTA, State of Alaska. (Electricity
negligence, road construction negligence case). $300,000 jury verdict
for death of a young male driver of a snowmobile who collided with two
guy wires not marked with mandatory high visibility safety guard wraps.
Alaska Superior Court, Anchorage. The wires were trespassing on state
highway right of way—Eagle River Loop Rd. The snowmobile was legally on
a pathway along Eagle River Loop near a newly built bridge for that
pathway, built by the state. The state ignored the illegal wires which
were clearly visible and literally within the area of the construction
project and in numerous construction photos. Following the verdict, MEA
and many other electrical and phone utilities across Alaska put high
visibility guy wire wraps on guy wires, as required by the National
Electrical Safety Code.
Whitethorn v. Zamarello. (Negligent
construction case). Confidential settlement for wife of an Anchorage
fireman killed after he entered a burning supermarket and an explosion
took place. Alaska Superior Court, Anchorage. The supermarket
was equipped with a sprinkler system, but it had not been hooked up to
the municipal waterline, as the connecting line was never installed.
Nevertheless, the building was allowed to be unoccupied as the city
thought the system was in operation.
Buechler v. Kenny Roger’s Roasters. (Negligent
construction/maintenance). A significant settlement for a disabled
women seriously injured due to defective entrance ramp. Alaska
Superior Court, Anchorage. Plaintiff’s wheelchair front wheel dropped
into a pothole at the bottom of the ramp where it met the pavement,
throwing plaintiff out of the wheelchair and causing serious orthopedic
injuries in addition to the MS that disabled her.
Young v. Carpetlayers, Inc. (Negligent
construction safety). A significant settlement for State Pioneer Home
worker seriously injured during new flooring project. Alaska
Superior Court, Anchorage. New carpeting was being installed in the
Pioneer Home in Anchorage. The flooring contractor applied clear glue
to the cement floor that was in use by the elderly and the staff, but
did not post warnings or yellow cones. Plaintiff was called by her
superior to hurry into the office for directions and she stepped onto
the glued area, completely losing traction, flying into the air and
headfirst into the cement floor.
Libor v. Clark, Red Devil Fireworks (Negligent
fireworks display/products defect). A significant settlement for a
pedestrian seriously injured at a Rondy fireworks display.
Alaska Superior Court, Anchorage. The area for the fireworks display in
Anchorage was the parking lot on 3rd Ave. between A St. and C St.
Pedestrians and auto traffic was allowed to travel on 3rd Ave. and on
the A St. Bridge during the display without any traffic control or
safety zone to protect the invited public. Large “mortar” fireworks
projectiles began exploding on and just above ground level causing the
public to flee into A. St where plaintiff was hit by a truck going too
fast through the congested area. The display contractor claimed the
fireworks were defective.
TOXIC TORT AND WEAPON CASES
Stubblefield v. Exxon Corp., Exxon Shipping, Veco, Norcon.
(Maritime toxic injury due to negligent construction, negligent failure
to warn). Confidential significant settlement for crane operator seaman
who suffered permanent pulmonary system damage due to inhalation of oil
mist and other toxins on the Exxon Valdez oil spill cleanup. Alaska
Superior Court, Anchorage. A cleanup barge equipped with a crane,
generators, pumps, and hoses to spray hot water on the shoreline was
constructed so as to funnel generator diesel exhaust into the crane’s
semi-enclosed cab. No warnings of the toxicity of the oil mist which
Exxon’s measurements showed was unsafe for workers who were exposed
80-100 hrs/week. Mr. Mestas was the only Alaska attorney to obtain
confidential Exxon internal documents regarding Exxon’s assessment of
the Industrial Hygiene risks posed by the numerous chemicals workers
were exposed to during the spill cleanup.
Anders, Franklin v. APU.
(Toxic injury due to chlorine gas). Confidential significant
settlements for three teenagers who suffered pulmonary injury at pool.
Alaska Superior Court, Anchorage. During an open pool time when a swim
club was exercising, pool maintenance personnel negligently mixed
mureatic acid with chlorine due to lack of labeling containers and lack
of hazardous materials procedures and training. The gas flooded into
the pool area and numerous children had to exit through the gas to
escape. The plaintiffs suffered lifetime injuries.
Dixon v. Acosta.
(Negligent handgun discharge). Confidential settlement for young woman
wounded when a handgun was discharged in an apartment. Alaska
Superior Court, Anchorage. The plaintiff was asleep on a couch when the
defendant was showing a handgun to other apartment occupants and the
weapon discharged, striking the plaintiff in the leg and causing
Kensinger v. Brenegan (Negligent
shotgun discharge). Confidential lifetime settlement for young man
seriously injured by shotgun discharge in home. Alaska
Superior Court, Anchorage. The defendant was demonstrating a new
shotgun, just recently used on a hunting trip without being unloaded,
when it discharged and struck the plaintiff causing very serious
injuries. Gregory Grebe was co-counsel.
Bushong v. Oulette.
(Negligent paintball gun discharge). Confidential significant
settlement for loss of vision in one eye due to paintball impact.
The plaintiff was struck in one eye by a paintball when the defendant
discharged the paintball gun to scare plaintiff and another youngster
who had been jumping on a trampoline in the defendant’s backyard.
BUSINESS TORT CASES
Cousineau v. Walker. (real
estate misrepresentation). Landmark real estate sales practices case.
See Cousineau v. Walker, 613 P.2d 608 (Alaska 1980). Bench verdict of
$150,000 for buyers of gravel pit. Alaska Superior Court,
Anchorage. Seller misrepresented in a listing that the acreage
contained: “A million in gravel per engineer’s report” as well as
significantly more commercial frontage on a highway than actually
existed. No such engineering report existed. The defendant asserted
that the listing was mere “puffery” and not actionable as such. The
Alaska Supreme Court declared that real estate sellers are liable for
factual misrepresentations, even if innocent.
Moolin v. Western Airlines/Delta.
(Breach of contract, wrongful denial of stock option). Confidential
significant settlement for a widow who was denied a freely transferable
stock option she inherited from her husband, the deceased President of
Western Airlines. Alaska Superior Court, Anchorage. Frank
Moolin was literally “the man who built The Alaska Pipeline”, after
taking over control of the slow moving project from another engineering
firm and bringing that project to a swift and successful
conclusion—considered to be an engineering feat of unparalleled
magnitude at the time. Later, he and Neil Bergt teamed up to save
Western Airlines from bankruptcy—which they did by securing new
financing and by re-organizing the company. As President, he had a
large stock option rather than a salary and was re-organizing the
company as he was dying of leukemia. After his death, Western would not
make fully transferable stock available, but only restricted stock.
Discovery and expert testimony established the option was for freely
Alaska National Ins. Co. v. Frontier Companies, Schuchart et al
(abuse of process, malicious prosecution counterclaim). Confidential
settlement. The insurer sued a major Washington corporation doing
business on the North Slope and its chief executive officers alleging
spoliation of records. The insurer was facing major liability
from several extremely severe oilfield injuries with large lifetime
medical expense and wage loss, and it asserted its workers compensation
policy had been changed to make it a no liability and only adjusting
services contract. Mr. Mestas was retained to prosecute counterclaims
by the officers for abuse of process and malicious prosecution. Neither
the insurer or the insurance broker had documentation of this huge
change in the policy, but it claimed the officers had notes or records
of the change and destroyed them. The insurer’s case collapsed after
depositions of the insurance personnel.
University of Colorado (B.A. 1971); Fleming Law School, University of Colorado (J.D. 1974)
MEMBERSHIPS AND AFFILIATIONS
Bar Association; American Association for Justice; Trial Lawyers for
Public Justice; Alaska Academy of Trial Lawyers.