McElligott, Edmond J

Gary Zipkin is a trial attorney with an extremely successful 38-year practice, focusing on insurance law, the defense of insurance bad faith claims, the defense of bodily injury and wrongful death claims arising in various settings (including auto, premises, product liability, maritime and aviation), and the defense of commercial contract, professional liability and construction contract claims. His track record in trial and in arbitration over the past 20-plus years is unsurpassed and he also has a proven record of success on appeal to the Alaska Supreme Court and to the Ninth Circuit Court of Appeals.

Selected for inclusion in Best Lawyers in America since 2002 in the field of Insurance Law, and selected for inclusion in Super Lawyers since 2004 in the field of Personal Injury Defense. Mr. Zipkin has been an Associate Member in the Amercian Board of Trial Advocates since 1995, and has participated on a number of occasions as a presenter in ABOTA's Masters In Trial CLE programs.  He has also served as a lecturer and CLE presenter on a wide variety of legal topics over his career.

Areas of practice emphasize insurance bad faith and coverage issues, and the defense of professional liability claims (including claims against physicians and hospitals, attorneys, police officers, insurance agents and real estate agents), personal injury, wrongful death, products liability, automobile negligence, aviation accident litigation, premises liability, construction contract litigation, and commercial and mineral law litigation and trial.

Extensive trial experience as lead counsel includes trials in Fairbanks, Anchorage and Kenai involving such issues as quieting title to mineral claims, municipal liability, aviation accidents, product liability, insurance agent errors and omissions, assault and battery, premises liability, construction contract litigation, first-party insurance claims and insurance bad faith, automobile negligence, condemnation, and real estate agent errors and omissions.

Mr. Zipkin has tried many cases before judges and juries around the State of Alaska since 1975. What follows is a partial list of his jury and bench trials over the last dozen or so years. In addition, Mr. Zipkin has successfully represented respondents in administrative proceedings and arbitration proceedings.

Nelson v. Progressive (tried to a jury in 1996) -- this was a claim for insurance bad faith and punitive damages arising out of an uninsured motorist claim. Liability for the accident was clear but the insurer (Progressive) valued Nelson's damages at a maximum of $18,000. Nelson demanded full policy limits of $100,000. The matter went to arbitration (Progressive was represented by other counsel at that time) and the arbiters awarded Nelson an amount well in excess of policy limits. Nelson claimed that Progressive acted in bad faith by failing to offer up policy limits short of arbitration. He also alleged that the adjuster in question cursed at him, recklessly disregarded evidence regarding Mr. Nelson's injuries, supposedly threw a copy of the Unfair Claim Practices Act on the floor, etc. At trial, Nelson's attorney asked for damages in excess of $5 million. The jury found no bad faith and awarded no punitive damages. Case was appealed to the Alaska Supreme Court and the judgment was unanimously affirmed at 976 P.2d 859 (Alaska 1999). Progressive ended up as the prevailing party, with a very large award of attorney's fees and costs -- even after off-setting the compensatory award (around $30,000) that Nelson received for a separate claim of intentional misrepresentation -- a claim that the trial judge had granted as a matter of law pre-trial. Gary was lead counsel for Progressive.

Paulsen v. Brown (tried to a jury in 1997) -- this was a personal injury case tried to an Anchorage jury and resulting in a defense verdict. Paulsen was a traffic control guard out at the airport who alleged that Brown intentionally struck him with Brown's vehicle just as Paulsen was impounding Brown's vehicle for exceeding the 10-minute parking rule which was then in effect on the ramp. His attorney asked for unspecified damages in excess of (we believe) $150,000. Defense verdict in 11 minutes. There was no appeal of the verdict. Gary was lead counsel for Brown.

Latham v. Crossroads Lounge (tried to a jury in 2001) -- this was a personal injury claim tried to an Anchorage jury in which Latham alleged that he was assaulted by the owner of a bar in Anchorage. He claimed that he suffered permanent injury to his spine as a result of being pushed down on the street. Latham did not ask the jury for a specific award but suggested that his damages were permanent, debilitating, and prevented him from working. The jury returned a defense verdict. The case was not appealed. Gary was lead counsel for Crossroads Lounge.

Agripa v. ATU (tried to a jury in 2003) -- this was a personal injury case tried to a jury in Fairbanks. Agripa claimed that she suffered severe and permanent injuries to her cervical spine as a result of an auto accident. The defense conceded liability for the accident, but maintained that Ms. Agripa had pre-existing degenerative conditions which were responsible for her symptoms, that she was grossly exaggerating the extent of her injuries, and that she was repeatedly advised that she did not need surgery. Ultimately, she was able to find an out-of-state surgeon who performed a 3-level fusion in her cervical spine. Her attorney requested damages in excess of $300,000. The jury returned a defense verdict. The case was not appealed. Gary was lead counsel for ATU.

Parnell v. Peak (tried to a jury in 2004) -- this was a personal injury action tried to a Kenai jury. Ms. Parnell was rendered a quadriplegic as a result of an accident in which the vehicle she was traveling in (as a passenger) struck a moose carcass and subsequently veered off of the road and rolled over into a ditch. She was not wearing a seatbelt, raising issues of her own failure to mitigate and comparative negligence. Her claim was based on the allegation that the moose had been struck and killed by an employee of the defendant corporation and that this employee failed to take proper steps to either move the carcass off the road, put out flares to warn other motorists, or contact 911 to report the hazard. The defense was based on the contention that a third motorist had actually struck and downed the moose and that the employee in question had simply run over that carcass, as opposed to creating the hazardous condition. Ms. Parnell's attorneys, along with the attorney representing the driver of her vehicle, asserted that she was entitled to compensatory damages considerably in excess of $12 million (including the cost of life care over her remaining life expectancy) as well as punitive damages. The trial lasted four weeks and resulted in a defense verdict. The trial judge granted the defendant's motion for a directed verdict on the punitive damages claim. The case was appealed to the Alaska Supreme Court on numerous grounds, and the Supreme Court reversed the judgment and remanded the case for a second trial based on its conclusion that the trial court should have given the jury a clarifying instruction on causation beyond the language of the pattern Alaska jury instruction which was given, in view of the unique factual circumstances. The case then settled prior to the second trial. Gary was lead counsel for Peak.

Lunney v. Atwood Industries (tried to a jury in 2007) -- this was a product liability action tried to a jury in Anchorage. Mr. Lunney claimed that he suffered permanently disabling full-thickness burn injuries to both of his lower legs as a result of the defective design of a motor home furnace manufactured by Atwood Industries and installed in a Fleetwood motor home which was being used as part of a Toys For Tots charity drive near Christmas. Mr. Lunney was working as a disc jockey for a radio station promoting the event and sat for long stretches of time with his lower legs in close proximity to the heat vent directly located under the dinette table in the motor home. Due to Mr. Lunney's chronic diabetes, he had long suffered from severe peripheral neuropathy, such that he had no feeling in his lower extremities and was unable to feel the heat emanating from the vent. The jury returned a unanimous verdict in favor of Atwood, concluding that the furnace was properly designed and manufactured to meet or exceed all industry standards. Gary was lead counsel for Atwood Industries and was ably assisted at trial by Christina Rankin, an associate at Guess & Rudd.

Brent v. GEICO (tried to a judge in 2008) -- this was a personal injury action seeking recovery of uninsured motorist benefits and was tried before a judge in Anchorage. Ms. Brent was a passenger in a vehicle which was rear-ended at an intersection by a vehicle driven by an uninsured motorist. She claimed that she suffered serious injuries, requiring extensive medical treatment lasting several years, and causing her to lose significant wages. Her insurer, GEICO, admitted that the accident was caused by the uninsured motorist but maintained that the forces generated in the accident were not strong enough, or severe enough, to have caused the injuries claimed by Ms. Brent. The judge agreed with GEICO and awarded Ms. Brent just the cost of her initial visit to the emergency room and a follow-up visit to a private physician, plus the cost of an MRI. She received general damages equal to those modest expenses. The result was that GEICO was declared the prevailing party, since Ms. Brent had sought damages more than 20 times greater than her ultimate award. Gary was lead counsel for GEICO.

Allstate Insurance Co. v. Herron (tried to a jury in 2008) -- this was an insurance bad faith action tried to a jury in Anchorage federal court. Allstate initiated the action as a declaratory judgment action and had the burden of proof on the critical issue of whether it had, through the actions of its adjuster, acted reasonably in response to a policy limits demand communicated to the adjuster by counsel for two individuals asserting personal injury claims as a consequence of a single vehicle accident in Bethel, Alaska, caused by Allstate's insured. The jury returned a unanimous verdict in favor of Allstate, confirming that it had acted reasonably in response to the policy limit demand. Combined with prior admissions by Herron that he had committed a material breach of his contractual obligation to Allstate by entering into a consent judgment and by assigning his claims against Allstate to the two claimants (which breach would only have been excused if Allstate had committed a prior breach of its duty of good faith and fair dealing) and the court's rulings on summary judgment, the jury's verdict served as vindication of Allstate's conduct. An appeal was taken to the Ninth Circuit Court of Appeals, which affirmed the jury’s verdict in all respects. Gary served as co-lead counsel for Allstate.

Little Squaw Gold Mining Co. v. Ackles (tried to a jury in 2008) -- this was a quiet title action tried to a Fairbanks jury. Little Squaw maintained that Mr. Ackles improperly staked mining claims over portions of a number of Little Squaw's valid and long-standing mining claims in the Brooks Range of Alaska. Mr. Ackels claimed that Little Squaw had abandoned those claims, such that he could legally stake his own claims over the same ground, because annual assessment work he had agreed to perform on Little Squaw's claims was not actually performed, despite the existence of documents drafted by Mr. Ackels and suggesting that he had, in fact, performed that assessment work. Mr. Ackles claimed that the documents were mere proposals and could not be relied upon by Little Squaw as evidence of work actually performed. For its part, Little Squaw maintained that it relied on the documents provided by Mr. Ackles in good faith, that the documents were not sent to Little Squaw as proposals, and that Mr. Ackles was a hold-over tenant such that the separate mining claims staked by Mr. Ackles on open land were subject to a lease provision requiring that such claims be for the benefit of Little Squaw, not Mr. Ackles. The jury returned its verdict in favor of Little Squaw on each of the critical issues presented and, combined with the court's rulings on motions for summary judgment and motions for directed verdict, the consequence was that Little Squaw successfully quieted title to each of its mining claims and should now receive best title to the claims staked by Mr. Ackles during the period of time that he was a hold-over tenant, through the constructive trust doctrine. Gary was co-lead counsel for Little Squaw along with Aisha Tinker Bray, another shareholder at Guess & Rudd. The case will likely be appealed to the Alaska Supreme Court

Bryan v. Morris (tried to a jury in 2011): -- this was a case involving a truck/pedestrian accident that resulted in traumatic head injuries, including permanent facial paralysis and numerous facial fractures requiring eye and jaw surgeries, and where the single liability issue for the jury to determine was legal causation.  The defendant driver was operating his pick-up truck at more than twice the legal blood alcohol limit at the time of the accident and therefore admitted that he was negligent as a matter of law.  In addition, there was no dispute that the vehicle's rear tire drove over plaintiff's head as he lay on the ground after stumbling backwards and falling off of a smoking deck at a local strip club.  Following a two-week trial, the jury agreed with the defense that the unique circumstances surrounding the accident made it impossible for the defendant to have successfully avoided driving over the plaintiff's head, even if the defendant had been sober.  Six of the eight eyewitnesses testified that what happened was a freak accident and that the impact of the rear driver's side wheel and plaintiff's head was virtually simultaneous and unavoidable.  Two other eyewitnesses claimed that plaintiff had already fallen out into the traffic lane and was laughing at his own folly when defendant's truck came around the corner of the building, hesitated, and then attempted to swerve around plaintiff, only to run over his head with the rear driver's side tire. Gary was lead counsel for the defense, assisted by Christina Rankin.  Plaintiff agreed not to file any post-trial motions or appeal in exchange for the defendant's agreement not to seek attorney's fees or costs.

This list does not include any of the cases Mr. Zipkin has handled and which were dismissed by way of summary judgment. There are a number of insurance bad faith claims that would be included in such a list. A number of those cases have led to important developments in the law on insurance in Alaska relating to such issues as the distinction between insurance bad faith and the standard for awarding punitive damages, the meaning of "policy limits" in cases where the claimant is not represented by counsel, the interpretation of Alaska statutes relating to uninsured and underinsured motorist coverage, and whether insurers may rescind a policy based on a material misrepresentation by the insured.