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Kinzel v. Discovery Drilling6/25/2004
INTRODUCTION
Jeffrey Kinzel filed an occupational safety and hazard complaint against Hart Crowser, 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 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.
FACTS
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 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.
Kinzel also sought medical attention for a respiratory infection. This resulted in his having to take several days leave. Kinzel testified that after his sickness he was more vocal about potential safety issues involving dust, but eventually found it "pointless to keep on complaining" because Hart Crowser's project manager, Martin, "didn't want to hear about it."
The dust became a bone of contention because Martin thought the Discovery employees were wasting too much time and were going over his head to solve a problem that he felt was minor or nonexistent. Martin found Kinzel's efforts especially problematic because Hart Crowser and Discovery employees often worked on joint projects, and he believed Hart Crowser could get little or nothing done if Discovery employees were spending time trying to avoid or control dust. Martin told Kinzel and Erickson to "quit . . . whining" an
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