ORDER DISPOSING OF PARTIES' STATE LAW SUMMARY JUDGMENT MOTIONS

BURGESS, District Judge.

Defendants Nugget Construction, Inc. ("Nugget") and United States Fidelity Guaranty Company ("USFG") have moved for summary judgment on the state law claims asserted by Plaintiffs North Star Terminal Stevedore Company ("North Star"), Shoreside Petroleum, Inc. ("Shoreside") and Metco, Inc. ("Metco"). Each Plaintiff has opposed. Defendants have replied.

North Star has cross-moved for summary judgment on some of its state law claims. Defendants have opposed. North Star has replied.

Shoreside and Metco have moved for what appears to be summary judgment on all their claims. North Star has joined that motion. Defendants have opposed. Plaintiffs have replied.

North Star, joined by Shoreside and Metco, has also moved for summary judgment against Defendants on the issue of contract by agency. Defendants have opposed. Plaintiffs have replied. USFG has requested oral argument on this summary judgment motion. North Star has requested that, if oral argument is granted on this motion, issues raised in the numerous other motions filed by the parties be heard at the same time. Shoreside and Metco have separately requested that oral argument be heard on all issues raised in the parties' many motions.

Applicable Standard

Facts

The facts underlying this protracted litigation are thoroughly laid out in this Court's prior summary judgment order at Docket No. 310 and in North Star Terminal Stevedore, Co. et al. v. Nugget Construction, Inc. et al., Slip Op. No. 02-35887 at 4 (9^th Cir., March 3, 2005) (the "Ninth Circuit Opinion"). Briefly, the following facts relative to these motions are undisputed:

• On or about September 28, 1996, Nugget contracted with the U.S. Army Corps of Engineers to extend a rock revetment along the Homer Spit Road in Homer, Alaska.

• On or about September 28, 1996, USFG executed and delivered to the United States a Miller Act bond for the protection of all persons and companies supplying labor and materials in connection with the Homer Spit project.

• On or about January 15, 1997, Nugget entered into a contract with Spencer to provide stone material for the project.

• In the winter of 1996/97, Spencer entered into (i) a contract with North Star to perform stevedoring operations in loading the rock onto Nugget's barges and (ii) a contract with Shoreside to provide fuel and lubricant for Spencer's quarrying operation.

• In May 1997 Spencer entered into a contract with Metco to assist with unloading and stacking the rock at the dock so that North Star could load it onto the barges.

• On or about April 23, 1997, Nugget and Spencer entered into a support agreement wherein Nugget agreed to provide labor and equipment to Spencer to assist Spencer in meeting its obligations under its original contract with Nugget in exchange for monetary deductions from amounts Nugget owed Spencer for performance under the original contract.

• Nugget instructed Spencer to keep the support agreement secret, and North Star, Shoreside and Metco were not told about its existence.

• Nugget's employee, Lynn D. Randolph, directed the loading of rock onto Nugget's barges. Nugget also started performing some of Spencer's functions in operating Spencer's quarry.

• Spencer was not paid for any services to Nugget after April 19, 1997. Nugget withheld payments from Spencer in order to pay itself under the support agreement (these withholdings are known as "back charges").

• Spencer did not pay North Star, Shoreside or Metco for the material and labor they supplied on the Homer Spit project.

• Nugget did not pay North Star, Shoreside or Metco for the material and labor they supplied on the Homer Spit project.

Facts concerning the extent to which Nugget interacted directly with the Plaintiffs and the extent to which Nugget took over the operations of the Spencer quarry are disputed. The Ninth Circuit has ruled that the facts in dispute prevent summary judgment on Plaintiffs' Miller Act claims. Ninth Circuit Opinion at 6.

Discussion

The Court addresses below (i) Defendants' motion for summary judgment on Plaintiffs' state law causes of action; (ii) North Star's cross-motion for summary judgment on its unjust enrichment, quasi-contract and quantum meruit claims; (iii) Plaintiffs' motion for summary judgment on their contract by agency claim; and (iv) Plaintiffs' motion for summary judgment on all claims.

Express Contract:

Plaintiffs contend that an express contractual relationship existed between them and Nugget because of Nugget's alleged take-over of Spencer, with which Plaintiffs contracted. Plaintiffs make this argument in a number of different pleadings. They move for summary judgment based on contract by agency and oppose Defendants' motion for summary judgment on their agency and express contract claims. Defendants' principal argument in support of their motion for summary judgment is that the Ninth Circuit has held that Plaintiffs "never entered into express contracts with Nugget." Ninth Circuit Opinion at 4. Defendants make their argument in a number of pleadings. They themselves move for summary judgment on Plaintiffs' express contract and agency claims and oppose Plaintiffs' separate contract by agency summary judgment motion.

When read in context, the Ninth Circuit holding upon which Defendants' rely is simply that Plaintiffs never expressly contracted directly with Nugget. Plaintiffs' contention, however, is that Spencer became an agent or extension of Nugget, and thus assumed Spencer's express contractual obligations to third parties, including to Plaintiffs. Although the issue appears not to have been directly addressed by the Alaska Supreme Court, Alaska law, following the Restatement (Second) of Agency, holds that an undisclosed principal is generally liable to third parties with which its agent contracts. Thus, the viability of Plaintiffs express contract claim against Nugget depends upon Nugget's relationship with Spencer.

"[I]n order for an agency relationship to exist, an agent must have a power to alter the legal relations between the principal and third parties. The principal, in turn, must have the right to control the conduct of the agent with respect to matters entrusted to him." Manes v. Coats, 941 P.2d 120, 123 (Alaska 1997) (citations and quotations omitted). "Under Alaska law, an agency relation exists only if there has been a manifestation of the principal to the agent that the agent may act on his account and consent by the agent to so act." Harris v. Keys, 948 P.2d 460, 464 (Alaska 1997). The question of whether an agency relationship exists is a question of fact. Id. at 465; Manes, 941 P.2d at 123. Here, material facts necessary to determine the existence of an agency relationship, namely the extent to which Nugget assumed control over Spencer, are in dispute. See, Ninth Circuit Opinion at 6. Summary judgment is thus precluded. Implied-in-Fact Contract:

Plaintiffs contend that an implied-in-fact contract exists between them and Nugget, either because of their direct interactions with Nugget or through Nugget's alleged take-over of Spencer, which had explicit contracts with each of the plaintiffs. Defendants' principal argument in support of their motion for summary judgment is that Plaintiffs cannot show that there was a meeting of the minds between the parties sufficient to infer an implied-in-fact contract.

Under Alaska law, "[a]n `implied in fact' contract is grounded on the intention of the parties to form a contract; the parties' assent thereto, although unarticulated, is inferred from the surrounding facts and circumstances." Nordin Const. Co. v. City of Nome, 489 P.2d 455, 464 (Alaska 1971); see also, Reeves v. Alyeska Pipeline Service Company, 926 P. 2d 1130, 1140 (Alaska 1996). Mutual assent is a requirement for a binding contract, however, a party "cannot rely on its subjective intent to defeat the existence of a contract if its words and actions objectively and reasonably led another to believe a contract had been entered." Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1281 (Alaska 1985).

Material issues of fact remain in dispute as to (i) the collusion between Nugget and Spencer and (ii) Nugget's direct interactions with Plaintiffs.See, Ninth Circuit Opinion at 6. Whether or not Nugget's (or Spencer's) words and actions created an implied-in-fact contract between Nugget and the Plaintiffs depends on these hotly disputed issues of material fact. Summary judgment is thus precluded.

Promissory Estoppel:

Plaintiffs base their promissory estoppel claim against Defendants upon Nugget's conduct, which induced them to supply material and labor during the course the Homer Spit project. Plaintiffs identify as promises inducing their reliance: (i) Nugget's non-disclosure of its support agreement with Spencer and (ii) Nugget's direction of the loading of its barges (through Mr. Randolph). Defendants' principal argument in support of their motion for summary judgment is that Plaintiffs have not adduced any evidence that Nugget made an actual promise to Plaintiffs which could have induced reliance.

"Under Alaska law, a promissory estoppel claim has four requirements: (1) The action induced amounts to a substantial change of position; (2) it was either actually foreseen or reasonably foreseeable by the promisor; (3) an actual promise was made and itself induced the action or forbearance in reliance thereon; and (4) enforcement is necessary in the interest of justice." Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996). Unlike some other jurisdictions, Alaska requires that the "actual promise made" by the party sought to be estopped be "very clear" and "precise". Simpson v. Murkowski, 129 P.3d 435, 442-444 (Alaska 2006); see also, Brady v. State, 965 P.2d 1, 11 (Alaska 1998); Eufemio v. Kodiak Island Hosp., 837 P.2d 95, 103 (Alaska 1992). Where the alleged promise is not expressed in sufficiently precise language, the promissory estoppel claim fails. Id.

In opposition to Defendants' motion, Plaintiffs first argue that Nugget's requirement that Spencer keep the support agreement secret constitutes a promise to the Plaintiffs that induced them to continue to supply material and labor to Spencer. Nowhere does Plaintiff explain how the suppression of the support agreement, or the subterfuge between Nugget and Spencer, constitutes a promise, either as to the relationship between Nugget and Spencer or as to payment and coverage under the Miller Act bond. Absent coherent explanation by Plaintiffs, it is not clear to this Court how Nugget's actions can constitute a promise giving rise to a promissory estoppel claim under Alaska law. Nugget's actions with respect to Spencer may give rise to other causes of action, but, absent a clear and precise promise to Plaintiffs, they do not give rise to a cause of action for promissory estoppel.

Plaintiffs next argue that the statements and actions of Mr. Randolph constitute a promise which induced their actions. The evidence to which Plaintiffs point, however, fails to show any "actual promise" to Plaintiffs:

• North Star shows that Mr. Randolph informed North Star when the Nugget barge would arrive, instructed North Star when to load the barge, and oversaw and directed the loading of the barge. There is no evidence showing that Mr. Randolph ever promised anything to North Star through these actions, however.

• Shoreside adduces evidence that it delivered gas and lubricant to Spencer on three separate occasions — in February, April and May of 1997. Shoreside interacted with Mr. Randolph, but Mr. Randolph never promised that Nugget would pay for the deliveries Shoreside made to Spencer. Nevertheless, Shoreside thought that it was covered under the Miller Act bond and that, should Spencer fail to pay, it would have recourse to Nugget or the payment bond.

• Metco adduces evidence that it assisted in unloading rock at the Alaska Railroad dock during May and June 1997, for which it billed Spencer. Metco also interacted with Mr. Randolph, who encouraged Metco to continue providing services to Spencer. However, Mr. Randolph never promised that Nugget would pay for the services Metco was providing to Spencer. Nevertheless, Metco also thought that it was covered under the Miller Act bond and that, should Spencer fail to pay, it would have recourse to Nugget or the payment bond.

Plaintiffs' evidence shows only that they believed that they would be paid by Nugget or Spencer, and that they would be protected by the Miller Act bond. It does not show that Defendants made any representation or promise of such payment or coverage. In the absence of such a promise, this evidence does not adequately support Plaintiffs' promissory estoppel claim. Summary judgment in favor of Defendants is thus appropriate.

Detrimental Reliance:

Plaintiffs base their detrimental reliance claim against Defendants upon the same conduct upon which they base their promissory estoppel claim. Defendants' principal argument in support of their motion for summary judgment is that Plaintiffs have not adduced any evidence that Nugget made any promises to Plaintiffs.

The elements of a detrimental reliance/equitable estoppel claim are "(1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice." Ogar v. City of Haines, 51 P.2d 333, 335 (Alaska 2002); see also, Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 604 (Alaska 1999); Municipality of Anchorage v. Schneider, 685 P.2d 94, 97 (Alaska 1984). The estoppel will be enforced only to the extent that justice requires. Id. The Alaska Supreme Court has explained that:

The primary difference between promissory and equitable estoppels is that the former is offensive, and can be used for affirmative enforcement of a promise, whereas the latter is defensive, and can be used only for preventing the opposing party from raising a particular claim or defense. Despite this important difference, relevant analogies can be drawn between the two doctrines, since equitable estoppel involves proof of elements similar to the elements of a promissory estoppel claim.

James v. State, 815 P.2d 352, 356 (Alaska 1991); see also, Simpson, 129 P.3d at 440, n. 18.

Plaintiffs' claim for detrimental reliance/equitable estoppel appears to be the flip side of their promissory estoppel claim — the later seeks to enforce an alleged promise by Defendants that Plaintiffs would be paid, the former to prevent Defendants from now claiming that they are not required to pay Plaintiffs. As discussed above, Plaintiffs have failed to raise issues of material fact that Defendants asserted a position by conduct or words. Nugget's visible involvement in the Homer Spit project — its direction of the loading of its barge and its activities at the Spencer quarry — do not, without more, indicate a promise that Nugget would pay Plaintiffs for their materials and labor or that Plaintiffs were covered under the Miller Act bond. Summary judgment for Defendants is appropriate on Plaintiffs detrimental reliance/equitable estoppel claim.

Misrepresentation and Non-Disclosure:

Plaintiffs base their misrepresentation and non-disclosure claims on Nugget's failure to disclose the support agreement, the details of its relationship with Spencer, the reach of the payment bond, and Nugget's back charges to Spencer. Defendants' argue in support of their summary judgment motion that they were under no duty to disclose the existence of the support agreement or the back charges they made to Spencer, and therefore cannot be liable for misrepresentation or non-disclosure.

The elements of a cause of action for knowing misrepresentation under Alaska law, are a false representation of fact, scienter, intention to induce reliance, justifiable reliance, and damages.Barber v. National Bank of Alaska, 815 P.2d 857, 862 (Alaska 1991) (citing Restatement (Second) of Torts); Anchorage Chrysler Center, Inc. v. DaimlerChrysler Corp., 129 P.3d 905, 914 (Alaska 2006). The elements of negligent misrepresentation under Alaska law are that "(1) the party accused of the misrepresentation must have made the statement in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, (2) the representation must supply false information, (3) there must be justifiable reliance on the false information supplied, and (4) the accused party must have failed to exercise reasonable care or competence in obtaining or communicating the information." Reeves v. Alyeska Pipeline Service Co., 56 P.3d 660 (2002), 670-671 (Alaska 2002) (citations and quotations omitted). An omission can constitute a false statement where there is a duty to disclose. Hagans, Brown Gibbs v. First Nat. Bank of Anchorage, 810 P.2d 1015, 1019 (Alaska 1991). A duty to disclose may, as Plaintiffs contend, arise "when facts are concealed or unlikely to be discovered because of the special relationship between the parties, the course of their dealings, or the nature of the fact itself." Id.

As discussed above in connection with Plaintiffs' promissory estoppel and detrimental reliance/equitable estoppel claims, Plaintiffs have failed to present any evidence that Defendants made affirmative false representations of fact. Plaintiffs instead argue that Defendants' omissions constitute false statements, because Defendants had a duty to disclose the relationship between Nugget and Spencer, including the support agreement and the back charges. That alleged duty stems from the fact that the relationship between the two was unlikely to be discovered because of (i) Plaintiffs' special relationship with Nugget, (ii) their prior course of dealing with Nugget, or (iii) the nature of the fact itself.First, Plaintiffs and Nugget did not share a special relationship. They were parties dealing at arms length in a business transaction. "A duty to disclose is rarely imposed where the parties deal at arm's length." Matthews v. Kincaid, 746 P.2d 470, 472 (Alaska 1987) (citing Restatement (Second) of Torts); Valdez Fisheries Development Ass'n, Inc. v. Alyeska Pipeline Service Co., 45 P.3d 657, 672 (Alaska 2002). Second, Plaintiffs have failed to show that the parties' prior course of dealing created a duty to disclose. Third, Plaintiffs fail to articulate how the nature of the fact withheld, namely the extent of Nugget's interaction with Spencer, itself created a duty to disclose, nor do they cite authority suggesting that Alaska would impose such a duty here. Since Plaintiffs have failed to identify a false or misleading representation by Nugget, and have failed to identify a duty to disclose the extent of the interactions between Nugget and Spencer, summary judgment for Defendants on Plaintiffs' misrepresentation claim is appropriate.

Negligence:

Plaintiffs claim that Defendants' owed them a duty of care, which they breached by entering into the support agreement and taking over Spencer and by failing to disclose those actions to Plaintiffs. Defendants argue in support of their summary judgment motion that they do not owe Plaintiffs a duty of care, because their relationship to Plaintiffs is that of a prime contractor to second-tier vendors.

"The initial step in deciding whether an action for negligence can be maintained is to consider whether a duty exists." Mesiar v. Heckman, 964 P.2d 445, 448 (Alaska 1998). The Alaska Supreme Court has stated that "[i]n deciding whether a defendant owes a plaintiff a duty of reasonable care, we first determine whether a duty is imposed by statute, regulation, contract, undertaking, the parties' preexisting relationship, or existing case law." McGrew v. State Dept. of Health and Social Services, Div. of Family and Youth Services, 106 P.3d 319, 322 (Alaska 2005). If these sources do not resolve the issue, Alaska applies a multi-factor approach to determine whether an actionable duty of care exists. Id.;see, Kooly v. State of Alaska, 958 P.2d 1106, 1108 (Alaska 1998). These factors are: "[1] The foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost and prevalence of insurance for the risk involved." Kooly, 958 P.2d at 1108.

Defendants argue that they did not owe Plaintiffs a duty of care. In response, Plaintiffs have failed to identify any statute or case law that imposes upon Nugget a duty of care toward them. Plaintiffs present no authority for their argument that Defendants' potential liability under the Miller Act or the federal Prompt Pay Act itself gives rise to an Alaska state law cause of action in negligence — the cases Plaintiffs cite stand only for the proposition that these federal claims do not preclude state law claims. See K-W Industries v. National Surety Corporation, 855 F. 2d 640, 642-43 (9^th Cir. 1988). Plaintiffs also fail to identify any Alaska case law creating a duty in this situation.

Finally, the Court is not convinced that Alaska courts would impose a duty of care in the situation presented here. The relationships between the parties here are governed, at bottom, by contract. Nugget's liability to Plaintiffs, if any, arises from Spencer's contracts with Plaintiffs. Nugget may be liable to Plaintiffs under those contracts because it made Spencer its agent or strawman. Plaintiffs' evidence of the subterfuge and collusion between Nugget and Spencer goes toward whether Spencer did, in fact, become and agent or strawman. As the Alaska Supreme Court has stated, "[p]romises set forth in a contract must be enforced by an action on that contract." Alaska Pacific Assur. Co. v. Collins, 794 P.2d 936, 946-947 (Alaska 1990). Absent their contracts with Spencer, and Nugget's alleged take-over of Spencer, Plaintiffs would not have cause to seek recovery from Nugget. Because Plaintiffs have failed to show that Nugget owed them a duty of care in tort, summary judgment for Defendants on Plaintiffs' negligence claim is appropriate.

This Court has held by separate decision and order that USFG acted reasonably in denying Plaintiffs' claims for payment under the Miller Act bond. Summary judgment for USFG on Plaintiffs' negligence claim is thus also appropriate. Tortious Interference

Plaintiff North Star alleges that Nugget tortiously interfered with its contract with Spencer by taking over control of Spencer and back charging the company. In support of their summary judgment motion, Defendants' argue that North Star has failed to adduce evidence to support its tortious interference claim.

The elements of the tort of intentional interference with contractual relations are: "Proof that (1) a contract existed, (2) the defendant knew of the contract and intended to induce a breach, (3) the contract was breached, (4) defendant's wrongful conduct engendered the breach, (5) the breach caused the plaintiff's damages, and (6) the defendant's conduct was not privileged or justified. The fourth, fifth, and sixth elements also apply to the related tort of intentional interference with prospective economic advantage." RAN Corp. v. Hudesman, 823 P.2d 646, 648 (Alaska 1991) (citations and quotations omitted). The sixth element of tortious interference has been defined in Alaska as follows: "where an actor has a direct financial interest, he is privileged to interfere with a contract for economic reasons, but not where he is motivated by spite, malice, or some other improper objective." Id.

It is undisputed that a contract existed between Spencer and North Star, that Nugget knew about the contract, that the contract was breached, and that the breach damaged North Star. Material issues of fact surround the remaining two elements of North Star's tortious interference claim, namely whether Nugget's conduct caused Spencer's breach and whether Nugget's actions were privileged or justified. Ninth Circuit Opinion at 6. Both of these elements depend upon the extent of the alleged subterfuge and collusion between Nugget and Spencer. Summary judgment is thus precluded.

Unjust Enrichment, Quasi-Contract and Quantum Meruit Claims

Plaintiffs assert claims of unjust enrichment, quasi-contract and quantum meruit against Defendants. Defendants have moved for summary judgment, arguing that Plaintiffs have not presented any evidence in support of their claims. Plaintiff North Star has cross-moved for summary judgment.

The parties agree that Alaska law treats claims of unjust enrichment, quasi-contract and quantum meruit claims similarly.Alaska Sales Services, Inc v. Millet, 735 P.2d 743, 746 n. 6 (Alaska 1987). The parties also agree on the elements of these claims: (1) a benefit conferred to defendant, (2) appreciation by defendant of that benefit; and (3) inequity of allowing defendant to retain the benefit without paying value therefor. Reeves v. Alyseka Pipeline Serv. Co., 926 P.2d 1130, 1143 (Alaska 1996).

Disputed material facts preclude summary judgment for either Defendants or North Star on Plaintiffs' claims of unjust enrichment, quasi-contract and quantum meruit claims. Each of the elements that make up the claims — Nugget's receipt of a benefit, Nugget's appreciation of that benefit, and the inequity of allowing Nugget to retain the benefit — depend upon the relationship between Nugget and Spencer. The nature of that relationship, in turn, depends upon the extent of the alleged subterfuge and collusion between Nugget and Spencer. Those facts are in dispute. Ninth Circuit Opinion at 6. Consequently, summary judgment is unavailable. Equitable Subordination and Constructive Trust:

Plaintiffs assert claims of equitable subordination and constructive trust. Defendants have moved for summary judgment, arguing that Plaintiffs have not presented any evidence in support of their claims.

Equitable subordination, whereby a court alters the pre-existing priorities among creditors, has been recognized in Alaska to apply outside of the bankruptcy context in situations of "fraud, unfairness, or breach of the rules of `fair play." Nerox Power Systems, Inc. v. M-B Contracting Co., Inc., 54 P.3d 791, 795 (Alaska 2002). "In Alaska a constructive trust is appropriate to prevent unjust enrichment, defined as the retention of property through unjust, unconscionable, or unlawful means."Rausch v. Devine, 80 P.3d 733, 744 (Alaska 2003); State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706, 712 (Alaska 1999).

Disputed issues of material fact preclude summary judgment for Defendants on Plaintiffs' claims of equitable subordination and constructive trust. Resolution of the claims depends upon the disputed material issues of fact surrounding the extent of the alleged subterfuge and collusion between Nugget and Spencer. Summary judgment is not available. Agency

Defendant has moved for summary judgment on Plaintiffs' agency claims; North Star has cross-moved, and all Plaintiffs have filed a separate summary judgment motion on the issue. As discussed above, disputed material issues of fact preclude summary judgment for either party.

Punitive Damages:

Plaintiffs assert claims for punitive damages in an amount of $1,000,000. Defendants move for summary judgment on Plaintiffs' punitive damage claims, arguing that Plaintiffs have not put forth any factual allegations to support their punitive damages claims.

Under Alaska law, a plaintiff seeking punitive damages must "prove by clear and convincing evidence that the defendant's conduct was outrageous, such as acts done with malice, bad motive, or reckless indifference to the interest of another."Lee Houston Assocs. v. Racine, 806 P.2d 848, 856 (Alaska 1991). As Defendants' themselves acknowledge in their briefing, "whether malice is present is a question of fact, and the trier of fact is given broad discretion to grant or withhold punitive damages." Docket No. 489 at 46; Haskins v. Sheldon, 558 P.2d 487, 494 (Alaska 1976).

The Alaska Supreme Court has consistently held that punitive damages are not recoverable for breach of contract unless the conduct constituting the breach constitutes an independent tort.Lee Houston Associates, Ltd. v. Racine, 806 P.2d 848, 856 (Alaska 1991) (citing ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153 (Alaska 1988)). Plaintiffs advance three separate tort claims, namely negligence, misrepresentation and tortious interference. The Court herein grants summary judgment in favor of Defendants on Plaintiffs' negligence and misrepresentation claims. North Star's tortious interference claim against Nugget, however, cannot be disposed of on summary judgment.

Whether Nugget's conduct was sufficiently outrageous or malicious to warrant punitive damages depends upon material issues of fact that remain in dispute — namely on the extent of the subterfuge and collusion between Nugget and Spencer. Summary judgment on North Star's punitive damages claim is thus precluded. Summary judgment on Metco and Shoreside's punitive damages claims is appropriate.

Plaintiffs' Motion For Summary Judgment

Plaintiffs have made a separate motion that appears to request summary judgment on their state law and Miller Act claims. With respect to Plaintiffs' state law claims, Plaintiffs' motion is denied for the reasons articulated above. With respect to Plaintiffs' Miller Act claims, summary judgment is precluded by the previous Ninth Circuit opinions in this case and the fact that Plaintiffs have presented no new evidence in support of their summary judgment motion.

Conclusion