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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 (Alaska 1998).

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 the public.

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 capacity.

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 permission.

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 belt.

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 crossing.

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 collision.

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 condition.

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 exposure.

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 restrictions.

MARITIME CASES

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.

Gentry v. Ocean Beauty Seafoods. (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.

INDUSTRIAL/CONSTRUCTION CASES

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 operations

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 serious injuries.

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 transferable stock.

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.

EDUCATION

University of Colorado (B.A. 1971); Fleming Law School, University of Colorado (J.D. 1974)


MEMBERSHIPS AND AFFILIATIONS

Alaska Bar Association; American Association for Justice; Trial Lawyers for Public Justice; Alaska Academy of Trial Lawyers.

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