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Alaska Supreme Court hears Juneau cases

One case deals with insurance issues surrounding 2008 shooting death of Aiden Neary

Posted: February 14, 2013 - 12:15am
Alaska Supreme Court Chief Justice Dana Fabe, right, questions Assistant Attorney General Jannell Hafner as Justice Craig Stowers listens at the Juneau courthouse on Tuesday.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Alaska Supreme Court Chief Justice Dana Fabe, right, questions Assistant Attorney General Jannell Hafner as Justice Craig Stowers listens at the Juneau courthouse on Tuesday.

Justices from the Alaska Supreme Court heard oral arguments for two separate cases in the Juneau Dimond Courthouse on Tuesday afternoon.

In one case, Chief Justice Dana Fabe and Justices Joel Bolger, Craig Stowers and Peter Maassen listened to arguments regarding an insurance issue arising from the 2008 shooting death of Juneau teenager Aidan Neary, 14.

Attorneys for Neary’s parents and the parents of another boy who was injured in the shooting, Chase Schneider, argued the insurance company that provided homeowner’s insurance to the Michaud family should pay $300,000 for each occurrence in Dec. 10, 2008 shooting, of which there could be many depending on the definition of occurrence, they argued.

On that day, 15-year-old Kevin Michaud shot and killed Neary and injured Schneider with a .44 Magnum revolver while Michaud was playing Russian roulette at the Michaud home after school.  Michaud loaded one bullet into the gun's chamber, pointed the revolver at his own head, pulled the trigger, and the gun didn't fire. Michaud then pointed the gun at Neary, unbeknownst to Neary, as Neary was walking to retrieve popcorn from the microwave at 12 to 15 feet away. The gun fired, and  bullet struck and passed through Neary’s torso, then the bullet deflected and lodged into Schneider’s back while Schneider was sitting on a stool drinking juice next to where Neary was standing. The bullet remains lodged in Schneider’s back to this day.

Michaud and his parents were insured by USAA at that time. They had a policy that afforded personal liability coverage of up to $300,000 for each of them for each occurrence.

Plaintiff’s attorney Deborah Holbrook argued the number of occurrences and policy limits should be measured by the number of injuries or effects caused by the gun shot, in which case there would be at least two occurrences, and numerous effects for each affected family member.

Marc Wilhelm, a defense attorney for insurance company USAA, argued that only one $300,000 policy applies under the Michaud policy for events of that day since there was a single shot fired that resulted in all the injuries.

The same four justices also heard a case involving a dispute about who was the prevailing party at the trial court level and who should be responsible for paying attorney fees.

Russell Peterson Jr. originally filed a lawsuit against the Department of Administration for denying him benefits of combined service for his work for the state. He had worked for state’s Central Duplication Shop in 1990 to 1991 under a different name, Joshua Warner, and then worked for the state again in 2007 in the Department of Labor in Juneau under his birth name, Peterson.

Peterson began going by the new name of Joshua Warner when he moved here from Florida, hoping to start life again with a new slate. He began going by his birth name again, however, in 1999, after the state accused him in a criminal case for using his new name to apply for a driver’s license. He pleaded guilty to one count of unsworn falsification in that case, received a fine, and the judge advised him to revert to his birth name.

Douglas Mertz, Peterson’s lawyer, says that in 2009 Peterson realized that some benefits granted to state employees depend on how long the employee has worked for the state, which prompted Peterson to attempt to get the state to recognize his combined years of service.

He requested the Division of Retirement and Benefits (R&B) department recognize the combined time, which they did after he presented evidence that he went by both names. The R&B advised Peterson he would have to make the same request with the Division of Personnel, which oversees current employee matters.

The Division of Personnel did not recognize the name change, and requested more evidence, which prompted Peterson to file the lawsuit. During discovery in that case, the state eventually acknowledged that he was the same person as Joshua Warner and agreed he should receive credit for total time in state employment for both periods.

Peterson moved for entry of judgment, saying the case was moot. The state agreed that part of the case was moot, but said Peterson failed to exhaust administrative remedies.

A trial judge ruled part of the case was moot, but the judge then addressed additional constitutional claims raised by Peterson and ruled that summary judgment should be given to the state on those claims.

Both parties then cross-moved for attorney fees, saying they were the prevailing party. The trial judge found that state was the prevailing party and granted the state’s fees requests in the amount of about $9,300. Peterson then appealed to the Supreme Court.

The justices took the oral arguments for both cases under advisement. Once a justice is assigned to a case, it typically takes between six months and a year for a decision to be reached, according to the Alaskan courts website.

The Supreme Court hears oral arguments in cases on a monthly basis in Anchorage, approximately quarterly in Fairbanks and Juneau, and occasionally in other Alaskan communities. The court prefers to hear arguments in the judicial district where the case was heard by the trial court, according to their website.

The last time the high court heard cases in Juneau was last February. Among those was a wrongful death case involving a Juneau gun shop, and a sex harassment case against the former police chief of the Hoonah Police Department.

Editor's Note: The above story has been updated to include more information about shooting on Dec. 10, 2008, as well as more clarifying information regarding the Peterson case.

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