Michael Brock, an employee of Alaska International Air, Inc. [AIA], was injured in an on-the-job accident on December 19, 1977. In a complaint filed on December 18, 1979, he alleged in part that Weaver Brothers, Inc. [Weaver Brothers], and numerous other defendants, were liable for his injuries. It was alleged that when the injury occurred, Brock was using equipment "owned or controlled by one or more of the defendants" and that the negligence of Weaver Brothers or another defendant caused his injuries.
On September 22, 1980, Weaver Brothers moved for summary judgment. The motion was grounded on the contention that the accident was due to the negligence of Brock's co-employees and thus Brock's remedy is a workers' compensation claim against his employer, AIA. Weaver Brothers further argued that it did not have anything to do with the pipe loading operations which resulted in injury to Brock. Specifically, Weaver Brothers contended that it did not exercise control or have the right to exercise control over the operations of AIA at the time the accident occurred.
In support of its summary judgment motion, Weaver Brothers submitted the affidavit of Ralph L. Brumbaugh, an AIA vicepresident in charge of maintenance and operations. Brumbaugh averred that at the time of the injury Brock was an employee of AIA; that all of the equipment which was utilized in the loading operation was owned by AIA; that all of the employees involved were employees of AIA; and that "Weaver Brothers, Inc ... . did not have any contact or involvement with the incident which occurred on December 19, 1977."
Counsel for Brock, in opposition to the motion for summary judgment, in part took the position that Brumbaugh's affidavit was insufficient to warrant summary judgment for Weaver Brothers.
Following a hearing, the superior court granted summary judgment to Weaver Brothers, certifying it as a final judgment under Civil Rule 54(b). This appeal followed.
Brock's most significant contention in this appeal is that the Brumbaugh affidavits contained mere conclusory allegations that Weaver Brothers was not liable, and that they were therefore insufficient to warrant summary judgment under Civil Rule 56(e).
This issue essentially comes down to a dispute whether Brumbaugh's denial of liability on the part of Weaver Brothers "set[s] forth such facts as would be admissible in evidence and ... show[s] affirmatively that the affiant is competent to testify to the matters stated therein."
In our view, Brumbaugh's second affidavit fulfilled the requirements of Civil Rule 56(e) and satisfied Weaver Brothers' burden of showing that there was no genuine issue as to any material fact and that it was entitled to summary judgment as a matter of law. Wickwire v. McFadden, 576 P.2d 986 (Alaska 1978); Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447 (Alaska 1974); Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136 (Alaska 1974). Once Weaver Brothers had satisfied this burden of proof, it was incumbent upon Brock
Our review of the record has persuaded us that Brock failed in his opposition to set forth specific facts demonstrating the existence of a material issue of fact which would prevent the entry of summary judgment. Illustrative of this failure are the various points advanced in Brock's statement of genuine issues, all of which are cast in the following vein:
Examination of Brock's answers to interrogatories reveals a similar lack of factual specificity concerning the issue of Weaver Brothers' liability for the accident. In response to a request for a summary of the facts which he intended to use to establish Weaver Brothers' liability, Brock answered in part:
In answer to an inquiry directed to Brock's assertions that Weaver Brothers owned or controlled the equipment being utilized in the loading operation, Brock replied:
Based on the foregoing, we conclude that the superior court correctly determined that Weaver Brothers was entitled to summary judgment.
One additional aspect of the appeal warrants discussion. Civil Rule 56(f) provides:
One of the points urged by Brock for reversal in this appeal is that the superior court erroneously refused his request for additional time under Civil Rule 56(f).
The superior court, in deciding the motion, stated it was granting the motion on "[t]he grounds that there's no evidence to show that it shouldn't be granted, absolutely none, and no request for discovery pending." In our view, the superior court correctly analyzed the issues in light of the fact that Weaver Brothers had met its burden of proving the absence of any genuine issues as to material fact and that it was thus entitled to summary judgment as a matter of law.
Prior to this exchange, counsel for the movant argued that Brock's interrogatories were directed only to AII. Thereafter, the superior court remarked, "Well, if there's no interrogatories as far as Alaska International Construction and Weaver Brothers are concerned, the judgment is certainly appropriate."