Kinzel v. Discovery Drilling, Inc.

• Decision Date: 25 June 2004
• Docket Number: No. S-10190.,S-10190.
• Citation: 93 P.3d 427
• Parties: Jeffrey KINZEL and Cheryl Kinzel, Appellants, v. DISCOVERY DRILLING, INC., and Hart Crowser, Inc., Appellees.
• Court: Alaska Supreme Court

93 P.3d 427

Jeffrey KINZEL and Cheryl Kinzel, Appellants, v. DISCOVERY DRILLING, INC., and Hart Crowser, Inc., Appellees.

No. S-10190.

Supreme Court of Alaska.

June 25, 2004.

Marion C. Kelly, Bernard P. Kelly, Wade, Kelly & Sullivan, Anchorage, for Appellants.

Paul S. Wilcox, Lisa C. Hamby, Hughes Thorsness Powell Huddleston & Bauman LLC, Anchorage, for Appellee Discovery Drilling, Inc.

Mary L. Pate, Eide, Miller & Pate, P.C., Anchorage, for Appellee Hart Crowser, Inc.

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

OPINION

MATTHEWS, Justice.

INTRODUCTION

Jeffrey Kinzel filed an occupational safety and hazard complaint against Hart Crowser, the company with which his employer, Discovery Drilling, had subcontracted. He was subsequently reassigned to a different worksite, where he injured his back. He filed for worker's compensation and took medical leave, but was soon fired. He sued Hart Crowser for defamation, negligence, and intentional interference with contract, and his employer for defamation and wrongful termination. After some claims were dismissed on summary judgment, a jury rendered a verdict for both defendants on all remaining claims. This appeal involves a number of challenges to the superior court's pre-trial and trial rulings.

FACTS

In the summer of 1998, Kinzel was a laborer on an environmental cleanup site at Fort Wainwright. As a general laborer Kinzel was open to any kind of work, but the majority of his time was spent digging trenches in a small, closed-cab backhoe. This was considered less demanding work than some of the other job possibilities at the site.

Kinzel's employer, Discovery Drilling, Inc., provided subcontracting work for Hart Crowser, Inc., an environmental engineering company. The two companies had a long relationship. For the Fort Wainwright site, Hart Crowser subcontracted with Discovery for both drilling and remediation services. Specifically, Discovery's role in the project was in part "soil and ground water remediation," a process of digging trenches with a backhoe and then assembling a grid of wells, pumps, and pipes known as a "remediation system" intended to remove environmental contaminants from groundwater and soil. This was a two-man job for Discovery, employing only Kinzel and his colleague Gary Erickson. Though Erickson had more seniority, Kinzel served in a de facto supervisory capacity for the pair, as he was more familiar with the Fort Wainwright location and the Hart Crowser employees who worked there from his previous summer at the site. In particular, Kinzel had more open lines of communication with Craig Martin, Hart Crowser project manager and the ranking supervisor at the site. Kinzel's supervision applied only to Erickson, and he was subject to the supervision and control of both his employer and Hart Crowser.

Beginning in May of that year and continuing until the Fourth of July weekend, the weather was hot and windy. As a result, Kinzel and Erickson had problems with dust. In early June, because of a severe sinus infection, Erickson was forced to visit a doctor. He immediately suspected that his sickness was connected to the worksite dust, and filed an anonymous complaint with the Alaska Department of Labor, Division of Occupational Safety and Health (OSH). It appears that this complaint was never investigated.

Kinzel also sought medical attention for a respiratory infection. This resulted in his having to take several days leave. Kinzel testified that after his sickness he was more vocal about potential safety issues involving dust, but eventually found it "pointless to keep on complaining" because Hart Crowser's project manager, Martin, "didn't want to hear about it."

The dust became a bone of contention because Martin thought the Discovery employees were wasting too much time and were going over his head to solve a problem that he felt was minor or nonexistent. Martin found Kinzel's efforts especially problematic because Hart Crowser and Discovery employees often worked on joint projects, and he believed Hart Crowser could get little or nothing done if Discovery employees were spending time trying to avoid or control dust. Martin told Kinzel and Erickson to "quit ... whining" and "if [they] have a problem with the dust [they] can just leave."

During the Fourth of July weekend, Discovery's president Kyle Brown and Kinzel met to discuss the growing difficulties between Discovery and Hart Crowser employees at the Fort Wainwright site. Brown seemed to be particularly concerned with the tension between Kinzel and Martin. He and Kinzel spoke of communication problems and apparently came to a mutual agreement about getting a fresh start at the site.

After the weekend, dust became less of a problem as the work changed to a new area. However this new worksite emitted a pungent, gasoline or pesticide odor which many feared was unsafe. Hart Crowser tested the ground water but found no significant contamination. Around the same time, fearing that nothing was being done in response to Erickson's complaint, Kinzel filed an OSH complaint, eventually prompting an investigation.

Around the time of the OSH inspector's arrival at the site, Hart Crowser cordoned off an "exclusion zone" encircling a suspected area of contamination. No one was permitted into this zone without a respirator. Kinzel expressed some resistance to wearing a mask just to enter the zone, because this would require him to shave off his beard.

On July 25 a Hart Crowser employee, Bryan Johnson, reported to Martin that he had seen Kinzel in the exclusion zone without a respirator for the second time. At Hart Crowser's request Kinzel was asked to leave the Fort Wainwright worksite, and he reported back to Discovery's Anchorage headquarters.

After Kinzel returned to Anchorage, Discovery reassigned him to a more arduous job in Glennallen, under the supervision of a foreman whom Kinzel believed to be hard on his men. After several days of long shifts and heavy lifting, Kinzel suffered serious back pain. He asked to be relieved from the project, and on August 2 returned to Anchorage, visiting a doctor the following day. His doctor, Dr. Derek Hagen, gave him a note releasing him to light duty work only.

Kinzel returned to the Discovery office and had a conversation with Brown, the substance of which was disputed at trial. Discovery claims that Brown had light duty work available for Kinzel, but that Kinzel told Brown he was supposed to take two to three days off, never revealing the "light duty" doctor's note. Kinzel claims that he attempted to give the note to Brown, but that Brown refused to look at it. According to Kinzel, Brown then said, "if you can't work in the field, then you might as well go home." Discovery counters that "Kinzel did not return to work after the 2-3 days he said the doctor told him to be off."

On August 12 Kinzel filed a worker's compensation injury report. Brown signed the report on the same day, stating that "there was no injury — the employee does not like the work and has been reassigned." On August 12 Kinzel took a new note from Dr. Hagen to Brown; the note stated that Kinzel should not work until the end of August.

Brown claims that he understood Kinzel was to be off work only until the end of August. But on August 31 Brown signed a form containing Dr. Hagen's handwritten statement that indicated that Kinzel was to be off work until October 8 "pending orthopedic evaluation." Brown claims he never saw this statement and instead only signed the form where asked. The doctor's statement is a few lines above the section Brown filled out. Brown wrote "ALLEGED" under the form's reference to illness or injury.

In early September Brown terminated Kinzel's employment at Discovery. Brown eventually sent a letter to Kinzel explaining his reasons for the termination.¹ The letter states that the reasons

pertinent to your discharge are your directly lying to me about the results of your doctors visit on August 3rd, 1998, including failure to give me the doctors note from that visit, and failure to return to work, to come by the office in person, or to call the office on September 1st, 1998 as was specified in a later doctors note that we did receive clearing you to return to work on that date. We received no further correspondence from you or notes from any doctors on your behalf. You clearly had no interest in maintaining your job or showing even common courtesy to your employer.

PROCEEDINGS

Kinzel and his wife Cheryl filed the present suit against Discovery and Hart Crowser in October 1999, alleging retaliatory and constructive discharge claims against Discovery, multiple defamation claims against both defendants, an intentional interference with contract claim against Hart Crowser, and a negligence and a "cancer phobia"² claim against Hart Crowser. Because of summary judgment rulings, by the time of trial only one of Kinzel's defamation claims remained against each defendant, along with a fear of cancer claim against Hart Crowser and a wrongful termination claim against Discovery.

The jury rendered a verdict for both defendants on these claims.

Kinzel appeals.

DISCUSSION

Issues on Appeal

Kinzel raises numerous issues on appeal. The issues discussed in this opinion are set out below along with a summary of our resolution of each. Other issues are resolved summarily. They are listed in the margin along with a summary reason for our decision concerning each.³

1. Did the trial court err in failing to give a mixed-motive instruction on the retaliatory discharge claim? Yes, because the evidence was sufficiently strong that Kinzel was discharged for reasons that included a prohibited motive.

2. Did the trial court err in limiting Kinzel to two weeks severance pay for his retaliatory discharge claim? Yes, because a retaliatory discharge in violation of an explicit public policy gives rise to a tort as well as a contract...