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Kinzel v. Discovery Drilling, Inc.

Supreme Court of Alaska

June 25, 2004, Decided

Supreme Court No. S-10190, No. 5820


 [*429]  MATTHEWS, Justice.


Jeffrey Kinzel filed an occupational safety and hazard complaint against Hart Crowser,  [*430]  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 [**2]  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.


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 [**3]  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.

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93 P.3d 427 *; 2004 Alas. LEXIS 103 **


Prior History:  [**1]  Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge. Superior Court No. 3AN-99-10959 CI.

Kinzel v. Discovery Drilling, Inc., 88 P.3d 1099, 2004 Alas. LEXIS 50 (Alaska, 2004)

Disposition: Reversed and remanded.


termination, mixed-motive, e-mail, workers' compensation, site, summary judgment, damages, defamation claim, trial court, Drilling, retaliatory discharge, reasons, argues, fired, retaliation, motive, complaints, defamatory, bogus, defamation, direct evidence, worksite, animus, dust, intentional interference, employment decision, superior court, public policy, back injury, reassigned

Business & Corporate Compliance, Unfair Labor Practices, Employer Violations, Interference With Protected Activities, Evidence, Burdens of Proof, Burdens of Production, Labor & Employment Law, Wrongful Termination, General Overview, Burden Shifting, Discrimination, Retaliation, Civil Procedure, Jury Trials, Jury Instructions, Ultimate Burden of Persuasion, Evidence, Gender & Sex Discrimination, Employee Burdens, Circumstantial & Direct Evidence, Breach of Contract, Covenants, Governments, Local Governments, Claims By & Against, Remedies, Statutory Application, Whistleblower Protection Act, Implied Contracts, Whistleblower Protection Act, Summary Judgment, Opposing Materials, Judgments, Appeals, Summary Judgment Review, Standards of Review, Movant Persuasion & Proof, Entitlement as Matter of Law, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Bill of Rights, Defamation, Torts, Intentional Torts, Defenses, Privileges, Constitutional Privileges, Fair Comment & Opinion, Collective Bargaining & Labor Relations, Strikes & Work Stoppages, Elements, Contracts Law, Breach, Contracts, Intentional Interference, Elements, Commercial Interference