Estate of Himsel v. State, No. S-8640.

CourtSupreme Court of Alaska (US)
Writing for the CourtCARPENETI, Justice.
Citation36 P.3d 35
Decision Date30 November 2001
Docket NumberNo. S-8640.
PartiesESTATE OF Kenneth W. HIMSEL, Deceased, Brought by Dr. B. Carls Kerkhove, Personal Representative of the Estate of Kenneth W. Himsel; Deborah Ann Himsel, Individually and in the Capacity as Parent of Krista S. Himsel and Kendra J. Himsel; Estate of Richard E. Brink, Deceased, Brought by Zita Rosa Brink, Personal Representative of the Estate of Richard E. Brink; Zita Rosa Brink, Individually; Boris Brink, Individually; Estate of Wilfried E. Wood, Deceased, Brought by Crystal M. Wood, Personal Representative of the Estate of Wilfried E. Wood; Crystal M. Wood, Individually and in the Capacity as Parent of Kirsten A. Wood; Estate of Michael Joseph Schmidt, Deceased, Brought by Deanna Sue Schmidt, Personal Representative of the Estate of Michael Joseph Schmidt; Deanna Sue Schmidt, Individually and in her Capacity as Parent of Preston R. Schmidt and Garret M. Schmidt; Estate of Llewellyn Archie Kahklen, Brought by Ida Marie Kahklen, Personal Representative of the Estate of Llewellyn Archie Kahklen; Ida Marie Kahklen, Individually and in her Capacity as Parent of Kristen Kahklen and Marcos Figueroa Kahklen, Appellants, v. STATE of Alaska, Appellee.

36 P.3d 35

ESTATE OF Kenneth W. HIMSEL, Deceased, Brought by Dr. B. Carls Kerkhove, Personal Representative of the Estate of Kenneth W. Himsel; Deborah Ann Himsel, Individually and in the Capacity as Parent of Krista S. Himsel and Kendra J. Himsel; Estate of Richard E. Brink, Deceased, Brought by Zita Rosa Brink, Personal Representative of the Estate of Richard E. Brink; Zita Rosa Brink, Individually; Boris Brink, Individually; Estate of Wilfried E. Wood, Deceased, Brought by Crystal M. Wood, Personal Representative of the Estate of Wilfried E. Wood; Crystal M. Wood, Individually and in the Capacity as Parent of Kirsten A. Wood; Estate of Michael Joseph Schmidt, Deceased, Brought by Deanna Sue Schmidt, Personal Representative of the Estate of Michael Joseph Schmidt; Deanna Sue Schmidt, Individually and in her Capacity as Parent of Preston R. Schmidt and Garret M. Schmidt; Estate of Llewellyn Archie Kahklen, Brought by Ida Marie Kahklen, Personal Representative of the Estate of Llewellyn Archie Kahklen; Ida Marie Kahklen, Individually and in her Capacity as Parent of Kristen Kahklen and Marcos Figueroa Kahklen, Appellants,
v.
STATE of Alaska, Appellee

No. S-8640.

Supreme Court of Alaska.

November 30, 2001.

Rehearing Denied December 24, 2001.


36 P.3d 36
Robert Merle Cowan, Law Offices of Cowan & Gerry, Kenai, for Appellants Himsel, Brink, and Wood; Steven E. Aldous and Tom H. Davis, Slack & Davis, Austin, TX, for Appellants Himsel, Brink, and Wood; and Kermit E. Barker, Jr., Barker & Hellén, Anchorage, for Appellants Schmidt and Kahklen

Gary M. Guarino, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before: MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

36 P.3d 37
OPINION

CARPENETI, Justice.

I. INTRODUCTION

In November 1992 an Alaska Army National Guard plane crashed; all aboard perished. Family members of the passengers sued the State of Alaska, alleging pilot negligence. The superior court granted summary judgment in favor of the state on the grounds that the claims were related to military service. We reverse and remand this case because the families' claims are not barred merely because they arose incident to military service and because there exist genuine issues of material fact relating to whether the pilot was acting on behalf of the state as a borrowed employee.

II. FACTS AND PROCEEDINGS

On November 12, 1992, an Alaska Army National Guard C-12 airplane carrying eight Army National Guard members crashed into a mountain while approaching the Juneau airport, killing all persons aboard. The plane was piloted by State Aviation Officer Colonel Thomas Clark and co-piloted by Warrant Officer John Pospisil. The passengers were Major General Kenneth Himsel, General Thomas Carroll, Colonel Wilfried Wood, Sergeant Major Llewellyn Kahklen, Sergeant First Class Richard Brink, and Sergeant Michael Schmidt.

General Himsel and the other passengers were flying from Anchorage to Juneau to review facilities, personnel, and training procedures at the Juneau Battalion headquarters.

At the time of the crash, Colonel Clark was employed as a National Guard "technician" and was the "State Aviation Officer." General Himsel was executing orders from the Indiana National Guard and was on "Active Duty Special Work" status. General Thomas Carroll was the Commander of the Alaska Army National Guard. Colonel Wilfried Wood, Sergeant Major Llewellyn Kahklen, Sergeant First Class Richard Brink, and Sergeant Michael Schmidt were on Active Guard Reserve status.

The families of General Himsel, Colonel Wood, Sergeant Major Kahklen, Sergeant Brink, and Sergeant Schmidt (collectively, the families) filed suit against the State of Alaska and Beech Aircraft in state court. The families claimed that the crash was caused by "design induced pilot error." Further, the families contended that the state, as Colonel Clark's employer, was vicariously liable for his negligence under the doctrine of respondeat superior.

Beech Aircraft filed a third-party complaint against the estates of Colonel Clark and Warrant Officer Pospisil seeking equitable apportionment of fault.

The United States intervened to remove the case to United States District Court on the grounds that Colonel Clark was a federal employee and that the Federal Tort Claims Act1 (FTCA) was the exclusive remedy for claims against federal employees acting within the scope of their employment. The United States further requested that the claims asserted against Colonel Clark's estate be "deemed an action against the United States." Additionally, the United States Department of Justice certified that Colonel Clark "was acting within the scope of his employment as an employee of the United States at the time of the November 12, 1992, crash of the C-12 aircraft near Juneau, Alaska."

Concurrent with the removal action, the United States filed motions to dismiss and for summary judgment. In support of its motions, the United States cited the Feres2 doctrine, which bars armed service members from suing the United States under the FTCA for injuries that arose out of activities that were incident to service.3 The case was removed to federal court.

The families voluntarily dismissed their claims against Beech Aircraft and the estates of Colonel Clark and Warrant Officer Pospisil.

36 P.3d 38
The only remaining defendant was the State of Alaska. Since no federal issues remained, the case was remanded to the state superior court

The state sought summary judgment on the grounds that the Feres doctrine bars all intra-military tort claims, including those between Army National Guard members in Alaska. Alternatively, the state argued that Colonel Clark was a federal employee and thus the state could not be liable under a vicarious liability/respondeat superior theory claim of negligence.

The superior court granted summary judgment and held that the families' claims were indeed "barred by the Feres doctrine." Additionally, the court held that since the families' claims were barred, it need not rule on whether the state could be liable to the families on the vicarious liability/respondeat superior theory.

III. STANDARD OF REVIEW

We review summary judgments de novo to determine whether any genuine issues of material fact exist and whether the moving party is entitled to a judgment as a matter of law.4 On questions of law, we apply our independent judgment and adopt the rule of law "most persuasive in light of precedent, reason, and policy."5

IV. DISCUSSION

A. The Families' Claims Against the State Are Not Barred by the Feres Doctrine.

1. The Feres Doctrine

In Feres v. United States, the United States Supreme Court held that service members cannot bring tort suits against the federal government for injuries that "arise out of or are in the course of activity incident to service."6 The Court reached this conclusion in spite of the fact that under the FTCA the federal government had generally waived its sovereign immunity. The FTCA rendered the federal government liable for "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment."7

The Court has explained that the Feres doctrine is premised upon the concern for the "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty."8

While thus limited at its inception, the Feres doctrine has been expanded to preclude a great variety of suits in federal court over the years. (1) It has been held to bar a negligence suit against the United States brought by the mother of a soldier who was murdered by another soldier while the victim was off-base and off-duty;9 (2) an indemnification suit against the United States brought by a military subcontractor regarding a negligently manufactured aircraft ejection seat;10 and (3) a suit against the United States brought by the widow of a Coast Guard helicopter pilot, which alleged that civilian Federal Aviation Administration employees negligently caused the pilot's helicopter crash.11

And while it has expanded in application, the Feres doctrine has been supported by a

36 P.3d 39
dwindling number of the members of the Supreme Court. Justice Scalia, dissenting in Johnson and speaking for a four-member minority, noted that the FTCA does not, on its face, generally preclude suits by military personnel.12 Moreover, he argued that the plain language of the FTCA rendered the United States "liable to all persons, including servicemen, injured by the negligence of Government employees."13 Addressing the government's argument that the Feres doctrine was needed to maintain military discipline and morale, Justice Scalia ironically noted that barring recovery in tort by military personnel "might adversely affect military discipline. After all, the morale of [Johnson's] comrades-in-arms will not likely be boosted by news that his widow and children will receive only a fraction of the amount they might have recovered had he been piloting a commercial helicopter at the time of his death."14 The Feres doctrine has also been heavily criticized15 and only reluctantly applied16 in the federal circuit courts

2. Alaska law

We have never directly ruled on the applicability of the Feres doctrine in Alaska.17 With regard to tort liability, the basic policy of law in Alaska is that "when there is negligence, the rule is liability, immunity is the exception."18 Since the families' claims are brought in state court pursuant to the Alaska Tort Claims Act,19 and the Feres doctrine is, strictly speaking, a federal doctrine, we are not bound by its holding.

The question before us, then, is whether based on Alaska law we...

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6 practice notes
  • Estes v. Monroe, No. C043878.
    • United States
    • California Court of Appeals
    • July 28, 2004
    ...(5th Cir.1995) 42 F.3d 297; Nyberg v. State Military Dept. (2003) 2003 Wy. 43 [65 P.3d 1241]; Estate of Himsel v. State (Alaska 2001) 36 P.3d 35.) Despite the ongoing 120 Cal.App.4th 1353 and acrimonious debate over the validity of the justifications proferred by the court a half century ag......
  • Nyberg v. State Military Dept., No. 02-117.
    • United States
    • United States State Supreme Court of Wyoming
    • March 31, 2003
    ...588 (1st Cir.1993); Uhl v. Swanstrom, 79 F.3d 751 (8th Cir.1996); Lovell v. Heng, 890 F.2d 63 (8th Cir.1989); Estate of Himsel v. State, 36 P.3d 35, 45 n. 13 (Alaska 2001) (Matthews, Chief Justice, dissenting, collecting cases). Several state courts have applied the Feres doctrine as well. ......
  • Native Village of Eklutna v. Alaska RR, No. S-10270
    • United States
    • Supreme Court of Alaska (US)
    • March 12, 2004
    ...including those arising from "a discretionary function or duty" of the state. AS 09.50.250(1-5); see also, e.g., Estate of Himsel v. State, 36 P.3d 35, 40 (Alaska 43. Alaska Housing Finance Corp. v. Salvucci, 950 P.2d 1116, 1123 (Alaska 1997). 44. 950 P.2d at 1123. 45. Id. 46. Jefferson v. ......
  • Brigadier Gen. Catherine Jorgensen v. Alaska, Case No. 3:15-cv-00003-RRB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • January 21, 2015
    ...against an entity of which an officer is an agent.") (internal quotation marks and citation omitted)). 17. Estate of Himsel v. State, 36 P.3d 35 (Alaska 2001) relied upon by Plaintiff is inapposite. Federal jurisdiction in Himsel rested upon the Federal Tort Claims Act claim against a feder......
  • Request a trial to view additional results
6 cases
  • Estes v. Monroe, No. C043878.
    • United States
    • California Court of Appeals
    • July 28, 2004
    ...(5th Cir.1995) 42 F.3d 297; Nyberg v. State Military Dept. (2003) 2003 Wy. 43 [65 P.3d 1241]; Estate of Himsel v. State (Alaska 2001) 36 P.3d 35.) Despite the ongoing 120 Cal.App.4th 1353 and acrimonious debate over the validity of the justifications proferred by the court a half century ag......
  • Nyberg v. State Military Dept., No. 02-117.
    • United States
    • United States State Supreme Court of Wyoming
    • March 31, 2003
    ...588 (1st Cir.1993); Uhl v. Swanstrom, 79 F.3d 751 (8th Cir.1996); Lovell v. Heng, 890 F.2d 63 (8th Cir.1989); Estate of Himsel v. State, 36 P.3d 35, 45 n. 13 (Alaska 2001) (Matthews, Chief Justice, dissenting, collecting cases). Several state courts have applied the Feres doctrine as well. ......
  • Native Village of Eklutna v. Alaska RR, No. S-10270
    • United States
    • Supreme Court of Alaska (US)
    • March 12, 2004
    ...including those arising from "a discretionary function or duty" of the state. AS 09.50.250(1-5); see also, e.g., Estate of Himsel v. State, 36 P.3d 35, 40 (Alaska 43. Alaska Housing Finance Corp. v. Salvucci, 950 P.2d 1116, 1123 (Alaska 1997). 44. 950 P.2d at 1123. 45. Id. 46. Jefferson v. ......
  • Brigadier Gen. Catherine Jorgensen v. Alaska, Case No. 3:15-cv-00003-RRB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • January 21, 2015
    ...against an entity of which an officer is an agent.") (internal quotation marks and citation omitted)). 17. Estate of Himsel v. State, 36 P.3d 35 (Alaska 2001) relied upon by Plaintiff is inapposite. Federal jurisdiction in Himsel rested upon the Federal Tort Claims Act claim against a feder......
  • Request a trial to view additional results

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