HDI-GERLING AMERICA INSURANCE COMPANY, as subrogee of Eggor Enterprises, Inc., Appellant and Cross-Appellee,
CARLILE TRANSPORTATION SYSTEMS, INC., Appellee and Cross-Appellant.
from the Superior Court No. 3AN-14-07190 CI of the State of
Alaska, Third Judicial District, Anchorage, Dani Crosby,
E. Wilkerson and Michelle Q. Pham, Preg O'Donnell &
Gillett PLLC, Seattle, Washington, for
L. Richmond and Marc G. Wilhelm, Richmond & Quinn, P.C.,
Anchorage, for Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
insurance company, as subrogee of its trucking company
client, sued another trucking company for negligence after an
accident between two truckers resulted in the insurance
company paying over $3.5 million in oil spill remediation
costs. After a trial the jury determined that the other
trucking company's driver was not negligent and returned
a defense verdict. The insurance company now appeals some of
the superior court's trial rulings. Seeing no reversible
error, we affirm the superior court's entry of final
FACTS AND PROCEEDINGS
night in February 2014 Carlile Transportation Systems, Inc.
driver Bart Neal was driving a tractor-trailer southbound on
the Dalton Highway. Neal could not steer properly at speeds
above 35 miles per hour and decided to stop to put chains on
his tires, referred to as "chaining up." Neal
stopped his rig in the roadway, partially blocking both
traffic lanes, and, by his account, activated his flashers.
Neal did not deploy reflective triangles.
south of where Neal was stopped, Eggor Enterprises, Inc.
driver Joe Seurer was hauling a load of fuel northbound. By
his account, Seurer saw lights in the distance but could not
determine what they were. He called on the radio but received
no response, and he slowed his tractor-trailer from 50 to 35
miles per hour. About three-quarters of a mile from Neal,
Seurer again saw lights and thought they might be from a
pipeline maintenance truck stopped off the side of the road.
He did not see reflective triangles or flashers.
road had an S-curve between Seurer and Neal. Until Seurer
rounded the final curve, he did not realize Neal's rig
was blocking the road. Seurer applied his brakes about 300
feet from Neal, avoiding a serious collision but causing
Seurer's trailer to fall onto the side of the highway.
The trailer's fuel load spilled alongside the road. Eggor
Enterprises's insurer, HDI-Gerling American Insurance
Company (HDI), paid over $3.5 million in cleanup costs to
remediate the spill.
October 2015 HDI sued Carlile for the remediation costs and
other damages, asserting the spill was caused by Neal's
negligence. The superior court held a ten-day jury trial in
primary theory of the case was that Carlile was vicariously
liable for Neal's actions and that Neal was either
common-law negligent or negligent per se for violating 49
C.F.R. § 392.22, a federal highway regulation that
applies to commercial drivers. Section 392.22 provides
that commercial drivers who stop for any reason other than a
"necessary traffic stop" must immediately activate
flashers and, "as soon as possible, but in
any event within 10 minutes," deploy warning devices
such as reflective triangles. HDI introduced evidence
tending to show that Neal had not activated flashers; Neal
admitted to not deploying triangles.
argued in the alternative that Neal was not negligent, or
that Neal's negligence did not cause HDFs injury, or that
Seurer was negligent and comparatively at fault. Carlile
sought to show that Neal complied with section 392.22 by
arguing that it does not apply to chain-up stops lasting less
than ten minutes. Carlile introduced evidence tending to show
that Neal had activated flashers but conceded that he had not
parties presented evidence supporting their theories. Much of
the evidence was conflicting, but all witnesses - including
Seurer and a former State of Alaska compliance officer -
agreed that commercial drivers did not have to deploy
triangles when they stopped to chain up on the Dalton
the trial proceeded without controversy, but during
Neal's testimony he made two potentially prejudicial
remarks in front of the jury. Neal knew Seurer by his radio
call sign "Smokin' Joe," and during pretrial
proceedings the superior court ordered Carlile to refrain
from referring to Seurer by this name; HDI was concerned that
the name would suggest to the jury that Seurer was a reckless
warned not to say "Smokin' Joe" during
testimony, Neal nevertheless said: "So if you got to
chain up, by the time I go out, put the reflectors out, go
back, chain up, and then go back out and get the reflectors
again, under this circumstances, I probably would have been
killed by Smokin' Joe when he come around that
corner." The superior court called an immediate bench
conference, which concluded with the court deciding:
"We'll let it go this time, but next time, if he
says it again, I'll say something." HDI did not
object to this course of action.
A few minutes later, Neal used "Smokin' Joe"
Q: Didn't I ask you about every conversation you had with
every person at the scene of that accident?
A: Yes, and I believe I told you I only talked to two people.
Q: Did you -
A: Smokin' Joe - or -
this second use, the superior court waited until the jury was
excused before admonishing Neal and Carlile. HDI did not
object to this course of action, and there was no third use
of Seurer's radio call sign.
moved for a directed verdict after HDI rested its case, but
that motion was denied. After the close of all the evidence,
the parties agreed to a special verdict form asking whether
either Carlile or Eggor was negligent and whether that
negligence caused HDI's injury. The form did not
distinguish between common-law negligence and negligence per
sought a negligence per se jury instruction based on section
392.22 and Neal's failure to use flashers or deploy
triangles. As part of its proposed instruction, HDI requested
that the superior court define "necessary traffic
stop" in the regulation as "a stop that is caused
by (1) an official traffic control device, (2) an authorized
governmental agent, (3) an authorized flagger, or (4) to
avoid other traffic on the roadway." This grammatically
challenged definition would have excluded chain-up stops from
being a necessary traffic stop, preventing the jury from
finding that Neal had complied with the regulation.
opposed the instruction, arguing that negligence per se did
not apply in this case. Carlile also opposed defining
necessary traffic stop in section 392.22, arguing
alternatively that chain-up stops could qualify as necessary
traffic stops or that the jury did not need the term defined
superior court determined that negligence per se could apply
and decided to give a negligence per se instruction. But the
court did not define necessary traffic stop for the jury,
I'm not going to tell them how to interpret that. The
[federal regulation] doesn't tell them. I'm going to
leave that in the jury's good hands. The cases [offered
by HDI in support of its definition] were state cases, if I
recall correctly. They were interesting, but I feel without a