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McGilvary v. Hansen6/30/1995
[No. 4227 - June 30, 1995]
Petition for Review from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Jay Hodges, Judge.
The trial court struck petitioners' answer to the Hansens' personal injury complaint and imposed liability as a discovery sanction because petitioners inaccurately answered an interrogatory and untimely provided the names of the passengers riding in petitioners' tour bus when Betty Hansen was injured. We vacate the sanction on review.
I. FACTS AND PROCEEDINGS
Betty and Clarence Hansen were passengers on a tour bus driven by Kristen McGilvary and operated by Princess Tours in June 1993. The bus was on a Fairbanks city tour. It struck a frost heave in the road, injuring Betty Hansen. She and Clarence sued McGilvary, Royal Highway Tours, Inc., Tour Alaska, Inc., and Princess Tours, (collectively "Princess") in September 1993.
In a written interrogatory, the Hansens asked Princess to give the names, addresses and telephone numbers of the passengers on the bus. Princess' sworn December 1, 1993 interrogatory answer asserted Princess "does not have a specific detailed passenger list with addresses." The answer stated that Princess had compiled a list of passengers who travelled the city tour the day of the accident, and that the list included all passengers, not just the passengers on the bus on which the Hansens were travelling. "There is no record of which passengers were on an individual coach." The list of all passengers was attached to the interrogatory answer. The list contained 164 names.
Shortly before Princess served its interrogatory answer, the court entered a pretrial order which set trial for the week of June 20, 1994, set an April 15 deadline for exchange of witness lists and set a May 20 deadline for close of discovery.
On February 2, 1994, the Hansens' attorney took the depositions of McGilvary and Julie Verd, Princess' manager of fleet safety and training. They testified that a "trip envelope" was kept for each bus tour, and that the envelope contained vouchers for the passengers on each bus tour. The vouchers revealed the passengers' names. After Verd's deposition, Verd returned to her office and found the trip envelope for the Hansens' bus tour. The envelope and the vouchers were served on Hansens' counsel on February 9.
The Hansens had previously moved for sanctions as a result of other alleged Princess discovery violations. Following the McGilvary and Verd depositions, the Hansens supplemented their existing sanctions motion with an argument that Princess had willfully failed to identify the passengers on the Hansens' bus and had consequently misrepresented the facts when it stated in its December 1 interrogatory answer "there is no record of which passengers were on an individual coach." The Hansens argued the response was "willfully inaccurate and incomplete." They argued that the discovery violation justified imposition of liability as a sanction. In response, Princess offered the affidavit of Kelly Boudreau.
Witness lists were exchanged April 15 and discovery closed May 20, per the pretrial order. On June 9, eleven days before trial was to begin, the trial court considered the sanctions motion and stated:
With respect to the motion to strike or to indicate there's liability on the part of the Defense for the injury to the Plaintiffs in the case, the . . . [Court is] persuaded based on the pleadings that it was a willful failure to provide the names of the bus passengers, and therefore the Court strikes both the answer as well as the issue concerning any comparative negligence.
Princess filed
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