Alaska Law Blog

Well, after a few months of having other things to occupy my time, namely these darling three month olds (Isaac & Aaden), it is time for me to renew Atkinson Conway & Gagnon’s attempt to, ahem, timely summarize the Alaska Supreme Court decisions of the week.

First up is Pebble Limited Partnership v. Parnell, S-13059/S-13060, in which the Alaska Supreme Court rejected an attempt to remove an initiative from the November ballot that will impose new requirements on mining in Alaska. The opinion has no real reasoning, as it’s actually an order with an opinion to follow, issued so that the State has time to print ballots for the election this fall. I won’t go into the arguments regarding the merits of the underlying mining initiative, but if you listen to the radio or watch TV for five minutes, you are almost sure to see ads from both sides of the issue.

The only other opinion of real interest is Edenshaw v. Safeway, Inc., S-12583, in which the Alaska Supreme Court held that to prevail on a premises liability claim in Alaska, a plaintiff does not need to show that the business owner had actual or constructive knowledge of the dangerous condition. Instead, the Court held there was only a basic reasonableness test, in which the business owner’s notice of a dangerous condition was a factor to consider, but not a dispositive or required one. This case is a departure from prior cases in which the Alaska Supreme Court held that the State of Alaska had to have actual or constructive knowledge of a defect in a highway to be liable if that defect caused an injury. In Edenshaw, the Court distinguished these prior cases by noting that a grocery store (which was where the injury occurred in Edenshaw) is a much more tightly controlled area, and thus it was more reasonable to impose a general duty of care on the business owner regardless of whether the business owner had actual or constructive knowledge of a dangerous condition on the property.

This opinion will have a significant effect in future litigation, as business owner now can be exposed to liability for injuries caused by dangerous conditions of which they were both not aware and had no reason to be aware. It is also certain to make premises liability cases more expensive and difficult to defend, as the question of the reasonableness of an owner’s actions will almost always be a fact question. Consequently, now that a business owner cannot rely on a lack of notice, constructive or actual, to avoid liability as a matter of law, it will be very difficult to obtain summary judgment or resolution of a premises liability case short of actual trial.

One of Atkinson, Conway & Gagnon’s very own, Patrick B. Gilmore, received the 2008 Professionalism Award from the Alaska Bar Association. The award was announced at the May 1 Bench and Bar Luncheon, a part of the Bar’s Annual Convention.

The award was a surprise to Pat when he heard his name called. (Pat is better known as “Gil” amongst the cognoscenti of Alaska.) Gil had been lured to the luncheon by a longtime friend, knowing nothing about the award. He probably should have thought it strange that his wife, Chris, and 22 year old daughter, Casey, showed up at a Bar Association lunch. The fact that a couple of Pat’s clients were there as well could have been a tip off that something was in the works. But Gil was as low key as ever, oblivious to it all. (I guess no one ever said “professionalism” was necessarily synonymous with “swift on the uptake.”)

The Bar’s Professionalism Award is a true honor, serving as recognition from fellow lawyers of the respect with which the recipient is held. And really there could not be a better person for the award than Pat. He is a lawyer who quietly and efficiently goes about his client’s business. He is never flashy and never obstructive, but always effective. Unlike many lawyers who talk about the importance of pro bono work, but do not follow through and actually provide it, Pat has without fanfare given substantial time to handling cases for the domestic violence project. He is the embodiment of the highest ideals that every lawyer should strive to achieve. Pat is a throwback to a nobler age, a reminder that the law is a learned profession and not a mercenary pursuit.

So let us all raise a glass to Patrick Gilmore and congratulate him on a well-deserved award!

(Hey, I’m more than willing to make Pat the butt of jokes, but you have to hand it to a guy who gets the Professionalism Award. And besides, anyone who names his dog “Bluto” after the late, great Senator John Blutarsky is A-OK in my book.)

Atkinson, Conway & Gagnon has been selected for inclusion in the 2008 edition of America’s Leading Litigation Firms and Attorneys. Those firms selected are identified by Benchmark’s research team, which conducts extensive face-to-face and telephone interviews with the nation's leading private practice lawyers and in-house counsel across the country in the preceding 12-month period. The purpose of the ranking is to identify those firms and attorneys best able to handle complex litigation matters.

The research results for law firm selection are broken down into “highly recommended” and “recommended” categories. All listed firms were consistently mentioned by peers and clients, but the "highly recommended" firms received the most mentions, and were held up as being definitively dominant in their particular jurisdiction. Atkinson, Conway & Gagnon, Inc., was identified as “highly recommended” in this ranking, and was one of only 3 law firms selected from Alaska.

The rankings also include identification of "local litigation stars" for each state, reflecting only those individuals who were recommended consistently as incontrovertible stars by clients and peers. Two of the law firm's partners, Richard E. Vollertsen and Patrick B. Gilmore, were identified in this ranking as “local litigation stars”.

Source: Benchmark: Litigation 2008, America's Leading Litigation Firms and Attorneys, www.benchmarklitigation.com

Almost every week, the Alaska Supreme Court issues its written opinions on Friday. You can download free PDF versions of these opinions here. You can also subscribe to a free e-mail list that will e-mail you links to each week’s opinions here. Each week, I will try to post a summary of that week’s opinions, focusing primarily on those opinions addressing civil litigation matters. While Supreme Court Opinions dealing with family law (such as disputes over visitation with the family dog) or criminal matters (how to get barred from attending your own criminal trial) offer interesting reading at times, they are not particularly relevant to the issues the lawyers at Atkinson Conway & Gagnon normally face.

This week, there was only one opinion issued that is of interest. In Villaflores v. Alaska State Commission for Human Rights, Clarito Villaflores, who is Asian and over 40 years old, applied for a human resources position with ConocoPhillips. He was not hired. Mr. Villaflores then filed a complaint with Alaska’s Human Rights Commission, alleging that ConocoPhillips did not hire him because of his race and age. The Human Rights Commission rejected this claim and dismissed his case.

The primary issue on appeal was whether the Human Rights Commission’s decision was supported by substantial evidence. The Court noted that to prevail on a his employment discrimination case, Mr. Villaflores had to prove: (1) he belonged to a protected class; (2) he applied for and was qualified for the position he was denied; (3) his application was rejected despite his qualifications; and (4) the employer hired someone not in the same protected class. While Mr. Villaflores was in protected class (Asian and over 40), the Court found that he had failed to establish that he was qualified for the job. Specifically, his job application did not show that he had the requisite five to 10 years of human resources experience required by ConocoPhillips. Moreover, the person hired by ConocoPhillips did. Consequently, Mr. Villaflores claim was properly denied by the Human Rights Commission because Mr. Villaflores failed to make out a prima facie case of employment discrimination.

The Court also rejected Mr. Villaflores argument that a Seventh Circuit case, Milbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), required ConocoPhillips to hire the most qualified applicant, which, presumably, Mr. Villaflores argued was him. The Court noted that even if Mr. Villaflores had established that he was qualified for the position (which he had not), Milbrook gave the employer broad discretion to chose between equally qualified candidates.

While Villaflores v. Alaska State Commission for Human Rights does not change Alaska employment discrimination law, it is a good, short summary of some of the elements that an applicant claiming employment discrimination must prove. It also squarely rejects any reading of Milbrook that would tie the hands of an employer choosing between equally well-qualified applicants.

Several Attorneys with the law firm of Atkinson, Conway & Gagnon, Inc. were recently selected to be listed in Alaska Super Lawyers 2007, a publication of Washington Law & Politics magazine.

Not only selected as one of Alaska's Super Lawyers, Bruce E. Gagnon was selected as one of Alaska’s Top 10 Lawyers by the publication. Mr. Gagnon has practiced law with the firm since 1970. He received a J.D. degree from Harvard University in 1967, where he was an editor of the Harvard Law Review. Before coming to Alaska, Mr. Gagnon was an Assistant Professor of Law at the Vanderbilt Law School. Mr. Gagnon is recognized as a leading attorney in Alaska on business transactions and commercial litigation. He was the first attorney in Alaska to be elected to the prestigious American Law Institute.

Robert J. Dickson was selected as an Alaska Super Lawyer in the category of General Litigation. Mr. Dickson has practiced law for 35 years in the areas of construction litigation and healthcare law, including medical malpractice defense. He is also the co-author of Alaska Construction Law, author of the Alaska Chapter in Sourcebook on State Public Construction Law (CCH 2002), and numerous other publications on Alaska construction law. In addition to owners, contractors, subcontractors, suppliers, sureties, title companies, banks and hospitals, Mr. Dickson has represented national and international design and engineering firms on a variety of claims including engineering malpractice defense, as well as contract disputes.

Jerome H. Juday was selected as an Alaska Super Lawyer in the category of Business and Corporate law. Mr. Juday has been an Alaska bar member since 1982. He has served on the Alaska Bar Association’s Rules of Professional Conduct Committee since 1996, acting as Chair of that committee since 2002. Mr. Juday’s practice emphasizes real estate law, commercial transactions and business litigation.

W. Michael Moody and Richard E. Vollertsen were also selected as Alaska Super Lawyers in the Personal Injury practice area. www.alaskainjurylawblog.com/2008/01/alaska_personal_injury_law_gro_2.html

Mr. Gagnon, Mr. Dickson, Mr. Moody, and Mr. Vollertsen are also all AV rated by Martindale Hubbell, the highest national rating for legal ability and ethics, and have been listed in the Best Lawyers in America for over 10 years.

The rigorous merit-based selection process began early in the year, with invitations to participate in the nominations process going out to over 1,400 attorneys in Alaska. In addition, Law & Politics’ research department conducted independent candidate searches through professional databases, legal trade journals, and meetings with law firms. The candidates were then evaluated by the Law & Politics research department. This evaluation process included examination of candidates’ background and experience, followed by a peer evaluation from other Alaskan attorneys in the practice area. The final candidates selected were those with the highest point totals from each category, and included only five (5) percent of all attorneys in Alaska.

While cargo barges may be "unmanned" while under tow, longshoremen and seamen often go aboard "unmanned" barges for loading, unloading and other purposes. Federal regulation 46 C.R.F. § 92.25-5 requires that cargo barges have a three-course perimeter safety railing. The Coast Guard, however, has failed to enforce that regulation, stating without explanation in its Marine Safety Manual that such barges are totally exempt from the railing requirement. In a lawsuit we are handling, a longshoreman working on a cargo barge equipped with only a two-course safety railing fell between the two courses (exactly where the third course should have been) and was crushed and badly injured when the barge surged back against the dock. In an important recent decision, the Ninth Circuit agreed with us that the Coast Guard's manual is inconsistent with the regulation; that the express terms of the regulation controls; and that the barge was in violation of the regulation. Abruska v. Northland Vessel Leasing Co., 2007 WL 4328834.