Adkins v. Nabors Alaska Drilling, Inc., 4410

• Decision Date: 04 April 1980
• Docket Number: No. 4410,4410
• Citation: 609 P.2d 15
• Parties: Prather M. ADKINS, Appellant, v. NABORS ALASKA DRILLING, INC., Appellee.
• Court: Alaska Supreme Court

Page 15

609 P.2d 15

Prather M. ADKINS, Appellant, v. NABORS ALASKA DRILLING, INC., Appellee.

No. 4410.

Supreme Court of Alaska.

April 4, 1980.

Michael W. Flanigan, Murphy L. Clark, Anchorage, for appellant.

Stephen C. Hillard, Graham & James, Anchorage, for appellee.

OPINION

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ.

BOOCHEVER, Justice.

This is an appeal from an order granting a summary judgment dismissing Nabors Alaska Drilling, Inc., from a personal injury action brought by Prather M. Adkins. The essential question is whether Adkins could, under Alaska's tolling statute, AS 09.10.140, add Nabors as a party defendant after the limitations period. Adkins claimed that he was "insane" within the meaning of the tolling statute. Adkins also contended that under Alaska Rule of Civil Procedure 15(c), the amendment to his complaint adding Nabors related back to his original complaint filed before the limitations period had run.

Adkins alleged that he tripped and fell over a hose near a trailer in the early morning hours of August 9, 1975. The accident occurred at the drilling site of an oil well leased to Standard Oil of California. Nabors Alaska Drilling, Inc., had contracted with Standard to drill the well. Adkins was employed by Tri-State Oil Tool Industries at the time. ¹ Adkins was discovered by Nabors' drilling superintendent Norton Goff, who found him "lying in a pool of water beating his hard hat against the trailer." Adkins was "incoherent," unable to talk, and seemed partially paralyzed. According to documents submitted by Adkins, he was examined by Dr. Feller, an Anchorage physician, in September and October of 1975. Dr. Feller's diagnosis was that Adkins had a post-concussion syndrome with antegrade amnesia. ² Sometime before July 20, 1977, the Highlands Insurance Company, the workmen's compensation carrier for Tri-State Oil Tool Industries, paid a claim to Adkins for his injuries.

Adkins retained his present lawyer early in March, 1977. On July 20, 1977, Adkins and Highlands sued Kenai Drilling of Alaska, Standard Oil Company of California, and the "Joe Doe Agents thereof." On April 21, 1978, slightly more than eight months after the statute of limitations, AS 09.10.070, ³ had run, Adkins and Highlands amended their complaint to add Nabors Alaska Drilling, Inc., as a party defendant. On May 11, 1978, Nabors filed a Rule 12(b) motion to dismiss Adkins' amended complaint for failure to state a claim. In support of its motion, Nabors submitted a memorandum contending that the statute of limitations barred any action against it.

On June 6, 1978, Adkins filed a memorandum in opposition to Nabors' motion to dismiss. His memorandum states, for the first time, that the statute of limitations was tolled under AS 09.10.140 ⁴ because of Adkins' mental condition. Adkins also argued that Rule 15(c) would allow the claim against Nabors to relate back. Adkins did not include affidavits to support his claim of incompetency. Instead, he submitted copies of what appear to be two medical memoranda and a letter written by an insurance adjustor. All this material relates to Adkins' condition in the months immediately following the accident.

On July 5, Nabors submitted a reply memorandum challenging Adkins' interpretation of Rule 15(c), and lack of admissible evidence to support an insanity defense. Nabors also submitted the affidavit of James Taylor, the company's president, which states that Nabors had no actual notice of a lawsuit until April 21, 1978, when the amended complaint was filed.

Apparently in an effort to resist Nabors' memorandum and affidavit, Adkins' lawyer filed his own affidavit. He stated that he had spoken to Norton Goff, who worked for Nabors and discovered the accident. He also averred that he had spoken with Dr. Feller concerning Adkins' mental condition, and that Dr. Feller stated that he had treated Adkins for a concussion that caused Adkins to have amnesia. Finally, Adkins submitted a copy of what purported to be a form drilling contract signed by Nabors and Standard Oil. Paragraph 11 of the contract requires Nabors to name Standard Oil as an "additional insured" on its liability policy. This, according to the affidavit, made it "clear" that for Rule 15(c) purposes, notice to Standard was the same as notice to Nabors.

On July 17, the superior court held a hearing on Nabors' motion to dismiss. The trial judge declined to rule from the bench in order to give Adkins more time to present his case. However, it is unclear from the record whether he intended all material to be filed within ten days of the hearing, or whether Adkins was to be given sixty days to file material relating to Adkins' incompetency claim and ten days for a brief. ⁵

Seventeen days after the hearing, on August 3, Adkins' lawyer filed a brief and the affidavit of Norton Goff. Finally, in mid-August he submitted his own affidavit and affidavits from Adkins and his wife taken in Louisiana.

Nabors submitted motions to strike all this material. Its position was that the material was submitted late, against the court's order, and that there had been no stipulation between the parties to extend the time for filing.

None of the orders to strike were signed by the trial judge. On September 7, the court filed an order without an opinion dismissing Nabors from the case.

Nabors then moved for an entry of final judgment. Adkins opposed the final judgment motion and submitted his own motion to have the court's September 7 order vacated. The basis for Adkins' motion was essentially that he had discovered "new evidence" in the form of an affidavit by Dr. Feller, who had read the affidavits of Adkins and his wife. Dr. Feller's affidavit stated in part that it is "medically possible that Mr. Adkins is still suffering from a 'post concussion syndrome.' " After briefing by both parties, on November 8, the trial court entered final judgment dismissing Nabors and denying Adkins relief under Rule 60. Adkins then filed this appeal.

I. PROPRIETY OF ENTERING FINAL JUDGMENT

Adkins first contends that it was an abuse of discretion for the trial judge to grant final judgment to Nabors rather than waiting for the entire matter to be consolidated in a single appeal.

Civil Rule 54(b) ⁶ gives discretion to a trial judge to grant final judgment to one party or claim so that an immediate appeal may be taken. The rule seeks to accommodate the competing interests of not forcing a party to wait until a court reaches a final judgment as to all claims or parties with the equally desirable policy of avoiding duplicitous and piecemeal appeals. Panichella v. Pennsylvania Railroad Co., 252 F.2d 452, 454 (3d Cir. 1958).

In Johnson v. State, 577 P.2d 706 (Alaska 1978), this court considered some of the factors that might be relevant in determining whether final judgment would be appropriate under Rule 54(b). We noted that findings similar to those governing interlocutory appeals under Appellate Rules 23 and 24 should be made. Id. at 710. Specifically, we considered that later proceedings might make a present appeal moot. We noted there might be a close relationship between several claims or parties so that a more complete factual record would be developed to aid in deciding an appeal later. Additionally, we considered whether a present appeal would simplify or shorten later proceedings. Id. at 711. ⁷

Adkins seems to suggest that the present appeal against Nabors may be mooted because he might be able to collect his entire judgment from the original defendant, Standard Oil. However, the mootness issue presented here is considerably different from the issue presented in Johnson. Unlike Johnson, there is no relationship here between Adkins' present claim, that the statute of limitations was tolled in his action against Nabors, and his claim against Standard. Nothing that happens at trial will moot this issue. At the close of trial, Adkins may still wish to appeal his claim against Nabors.

Adkins also argues that more evidence will be developed in his case against Standard that will permit the court to determine the statutory standard of "mental illness" in the light of a complete record. Although Johnson involved a question of statutory interpretation, it was clear there that the statute would remain an issue in the case among the other parties after the appeal. Here, the proper interpretation of the tolling statute has nothing to do with Adkins' case against Standard. Thus, any factual record developed would be outside the scope of the statute and would not aid in its interpretation.

Nabors argues that resolution of the issue now would simplify and shorten later proceedings. It points out that if the present action goes forward against Standard alone, it may at some point be necessary to conduct a second trial solely for the benefit of Nabors. It urges that the issue be resolved now to save the expense of multiple trials and appeals.

Despite the somewhat restrictive test for determining when final judgment should be issued, we conclude that the trial judge did not abuse his discretion by granting a final judgment in this case.

II. RELATION BACK OF THE AMENDMENT ADDING NABORS

Civil Rule 15(c) ⁸ provides that an amendment to a pleading relates back to the date of the original pleading so that amendments are not barred by a statute of limitations. When the amendment adds a claim, the rule provides that the claim must have arisen out of the same transaction as the original pleading. When the amendment changes a party against whom a claim is asserted, the rule is more restrictive. It provides that, within the period provided by law for commencing the action, the party to be added have "such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits."

This court has not yet directly decided a case where a plaintiff seeks to add a party defendant. Jakoski v. Holland, 520...