Brock v. Weaver Bros., Inc.

• Decision Date: 19 February 1982
• Docket Number: No. 5752,5752
• Citation: 640 P.2d 833
• Parties: Michael BROCK, Appellant, v. WEAVER BROTHERS, INC., Appellee.
• Court: Alaska Supreme Court

Page 833

640 P.2d 833

Michael BROCK, Appellant, v. WEAVER BROTHERS, INC., Appellee.

No. 5752.

Supreme Court of Alaska.

Feb. 19, 1982.

Michelle V. Minor, Anchorage, for appellant.

Dennis M. Bump, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellee.

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

OPINION

PER CURIAM.

Michael Brock, an employee of Alaska International Air, Inc. (AIA), was injured in an on-the-job accident on December 19, 1977. In a complaint filed on December 18, 1979, he alleged in part that Weaver Brothers, Inc. (Weaver Brothers), and numerous other defendants, were liable for his injuries. It was alleged that when the injury occurred, Brock was using equipment "owned or controlled by one or more of the defendants" and that the negligence of Weaver Brothers or another defendant caused his injuries.

On September 22, 1980, Weaver Brothers moved for summary judgment. The motion was grounded on the contention that the accident was due to the negligence of Brock's co-employees and thus Brock's remedy is a workers' compensation claim against his employer, AIA. Weaver Brothers further argued that it did not have anything to do with the pipe loading operations which resulted in injury to Brock. Specifically, Weaver Brothers contended that it did not exercise control or have the right to exercise control over the operations of AIA at the time the accident occurred.

In support of its summary judgment motion, Weaver Brothers submitted the affidavit of Ralph L. Brumbaugh, an AIA vice-president in charge of maintenance and operations. Brumbaugh averred that at the time of the injury Brock was an employee of AIA; that all of the equipment which was utilized in the loading operation was owned by AIA; that all of the employees involved were employees of AIA; and that "Weaver Brothers, Inc .... did not have any contact or involvement with the incident which occurred on December 19, 1977."

Counsel for Brock, in opposition to the motion for summary judgment, in part took the position that Brumbaugh's affidavit was insufficient to warrant summary judgment for Weaver Brothers. ¹ Weaver Brothers then supplemented its motion with a second affidavit from Brumbaugh, which was asserted to be based on Brumbaugh's personal knowledge of the various corporations sued and of the operations conducted on the premises of AIA. In this second affidavit Brumbaugh stated that Weaver Brothers had no right to control the loading operation, nor had it actually exercised any control; that no contract between AIA and Weaver Brothers gave the latter any right to control the loading operations of AIA; and that he had checked the equipment that was being utilized at the time of the loading operation and that it was all owned by AIA and under the exclusive care, custody, and control of AIA. ²

Following a hearing, the superior court granted summary judgment to Weaver Brothers, certifying it as a final judgment under Civil Rule 54(b). This appeal followed.

Brock's most significant contention in this appeal is that the Brumbaugh affidavits contained mere conclusory allegations that Weaver Brothers was not liable, and that they were therefore insufficient to warrant summary judgment under Civil Rule 56(e). ³ Weaver Brothers argues that the fact that the second affidavit was made upon the personal knowledge of the affiant suffices, given Brumbaugh's executive position.

This issue essentially comes down to a dispute whether Brumbaugh's denial of liability on the part of Weaver Brothers "set(s) forth such facts as would be admissible in evidence and ... show(s) affirmatively that the affiant is competent to testify to the matters stated therein." ⁴ Civil Rule 56(e) is essentially a requirement that the allegations in an affidavit not be mere hearsay or conclusory declarations. ⁵

In our view, Brumbaugh's second affidavit fulfilled the requirements of Civil Rule 56(e) and satisfied Weaver Brothers' burden of showing that there was no genuine issue as to any material fact and that it was entitled to summary judgment as a matter of law. Wickwire v. McFadden, 576 P.2d 986 (Alaska 1978); Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447 (Alaska 1974); Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136 (Alaska 1974). Once Weaver Brothers had satisfied this burden of proof, it was incumbent upon Brock

to set forth specific facts showing that he could produce evidence reasonably tending to dispute or contradict movant's evidence and thus demonstrate that a material issue of fact exists. Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 489-90 (Alaska 1975), aff'd on rehearing 551 P.2d 934 (Alaska 1976). Mere assertions of fact in pleadings and memoranda are insufficient for denial of a motion for summary judgment. Brock v. Roger & Babler, Inc., 536 P.2d 778, 782-83 (Alaska 1975); Braund Inc. v. White, 486 P.2d 50, 53-54 (Alaska 1971). ⁶

Our review of the record has persuaded us that Brock failed in his opposition to set forth specific facts demonstrating the existence of a material issue of fact which would prevent the entry of summary judgment. Illustrative of this failure are the various points advanced in Brock's statement of genuine issues, all of which are cast in the following vein:

Whether defendants, or any of them, owned, operated, leased, or in any way exercised control over the equipment involved in the loading operation during which plaintiff was injured on December 19, 1977.

Examination of Brock's answers to interrogatories reveals a similar lack of factual specificity concerning the issue of Weaver Brothers' liability for the accident. In response to a request for a summary of the facts which he intended to use to establish Weaver Brothers' liability, Brock answered in part:

The equipment being used during the loading process was owned by AIA or one of the defendants .... I don't know exactly which defendant owned what equipment, but the procedure and/or equipment we had to use on the night I was hurt was not adequate for the job.

Also, one or more of the defendants had the responsibility for conducting safety meetings and educating workers like myself to the safe and proper loading methods.

In answer to an inquiry directed to Brock's assertions that Weaver Brothers owned or controlled the equipment being utilized in the loading operation, Brock replied:

While I worked for AIA, it was apparent that AIA, AII, AIC and Weaver Brothers all seemed to pool their equipment. I don't know who actually owned what equipment ....

I do not remember which equipment was actually being used during the loading operation when I was hurt, but it could have belonged to any of the defendants or to AIA.

Based on the foregoing, we conclude that the superior court correctly determined that Weaver Brothers was entitled to summary judgment. ⁷

One additional aspect of the appeal warrants discussion. Civil Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify the opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

One of the points urged by Brock for reversal in this appeal is that the superior court erroneously refused his request for additional time under Civil Rule 56(f). ⁸ Assuming that an unambiguous request for additional time was made pursuant to Civil Rule 56(f), we conclude that the superior court did not abuse its discretion in denying the same. At the time of the superior court's resolution of the summary...