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Anchorage v. Integrated Concepts and Research Corporation

United States District Court, D. Alaska

March 23, 2015

ANCHORAGE, a Municipal Corporation, Plaintiff,
v.
INTEGRATED CONCEPTS AND RESEARCH CORPORATION; PND ENGINEERS, INC.; CH2M HILL ALASKA, INC.; GEOENGINEERS, INC., Defendants,
v.
CH2M HILL ALASKA, INC., Third-Party Plaintiff,
v.
TERRACON CONSULTING, INC. Third-Party Defendant.

ORDER RE FAULT ALLOCATION MOTIONS

SHARON L. GLEASON, District Judge.

The following three motions are currently pending before the Court: (1) PND Engineers, Inc.'s Motion for Rule of Law on Allocation of Fault at Docket 93; (2) CH2M Hill Alaska, Inc.'s Motion for Order Regarding AS 09.17.080 Fault Allocation to Maritime Administration and Construction Contractors or, Alternatively, For Leave to Amend to Add Third-Party Defendants at Docket 97; and (3) Integrated Concepts and Research Corporation's (ICRC) Motion for Rule of Law Regarding Allocation of Fault to the United States Under Alaska Statute 09.17.080 at Docket 101, which PND joined at Docket 106. The motions have been fully briefed and oral argument was held on October 28, 2014.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation relates to the design and construction of the Port of Anchorage Intermodal Expansion Project. The relevant factual background and the initial procedural history of this case are set forth in this Court's Order Re Motion to Remand and Related Motions and Order Denying Motion to Dismiss and are not repeated here.[1] The Municipality of Anchorage (MOA) is also currently pursuing related claims in the Court of Federal Claims against the United States, through its Department of Transportation, Maritime Administration (MarAd).[2]

On November 5, 2014, the Court granted MOA's Motion for Leave to Amend Complaint and Add Party Defendant GeoEngineers, Inc.[3] On March 4, 2015, the Court issued an Order addressing PND's and CH2M Hill's motions for summary judgment related to the economic loss doctrine. The Court held, inter alia, that "the economic loss doctrine applies to parties who are not in privity so as to generally preclude a negligence claim seeking recovery of only economic loss" but denied the summary judgment motions without prejudice to renew based on the limited factual record then before the Court.[4]

Each of the three motions addressed in this Order concerns Alaska's "apportionment of damages" statute, AS 09.17.080, which provides in relevant part:

(a) In all actions involving fault of more than one person, including third-party defendants and persons who have settled or otherwise been released, the court... shall instruct the jury to answer special interrogatories... indicating
(1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
(2) the percentage of the total fault that is allocated to each claimant, defendant, third-party-defendant, person who has been released from liability, or other person responsible for the damages unless the person was identified as a potentially responsible person, the person is not a person protected from a civil action under AS 09.10.055, and the parties had a sufficient opportunity to join that person in the action but chose not to; in this paragraph, "sufficient opportunity to join" means the person is
(A) within the jurisdiction of the court;
(B) not precluded from being joined by law or court rule; and
(C) reasonably locatable....
(c)... an assessment of a percentage of fault against a person who is not a party may only be used as a measure for accurately determining the percentages of fault of a named party. Assessment of a percentage of fault against a person who is not a party does not subject that person to civil liability in ...

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