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Blumenshine v. Baptiste (3/4/94), 869 P 2d 470
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
MARK BLUMENSHINE, ) Supreme Court Nos. S-4997/5018
Appellant/ ) Superior Court No.
Cross-Appellee, ) 1JU-90-928 CI
v. ) O P I N I O N
WILFRED J. BAPTISTE, SR., and ) [No. 4060 - March 4, 1994]
LORETTA JANET BAPTISTE, )
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Larry R. Weeks, Judge.
Appearances: Michael L. Lessmeier and
Sheldon E. Winters, Hughes, Thorsness, Gantz,
Powell & Brundin, Juneau, for Appellant/Cross-
Appellee. Loren Domke, Loren Domke, P.C.,
Juneau, for Appellees/Cross-Appellants.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
MATTHEWS, Justice, dissenting in part.
COMPTON, Justice, dissenting in part.
Mark Blumenshine asserts that the superior court erred
in failing to reduce the jury's award of past medical expenses to
Wilfred J. Baptiste, Sr. based upon Baptiste's comparative fault.
The superior court ruled that Blumenshine waived the point
because the jury's verdict was inconsistent and Blumenshine
failed to object to the inconsistency before discharge of the
jury. Baptiste cross-appeals, claiming the superior court erred
in setting aside the jury's award of future medical expenses and
in determining that Blumenshine was the prevailing party in
awarding attorney's fees.
We affirm the superior court's set aside of the award
of future medical expenses and its refusal to reduce the jury's
award for past medical expenses. We reverse the superior court's
prevailing party determination.
I. FACTUAL AND PROCEDURAL BACKGROUND
Baptiste and Blumenshine were involved in an automobile
accident in which Baptiste was injured. Blumenshine admitted
that he was negligent and that his negligence proximately caused
injury to Baptiste. However, Blumenshine contended that
Baptiste's own negligence was partly or fully responsible for the
At trial Baptiste sought compensatory damages for past
medical expenses in the amount of $19,371, future medical
expenses in the same amount, past and future physical impairment,
past and future pain and suffering; he also sought punitive
damages. Baptiste's wife sought damages for loss of consortium.
In a special verdict, the jury awarded Baptiste
$19,371.36 for past medical expenses, $2,500 for future medical
expenses, $8,000 for past and future physical impairment and
$8,001 for past and future pain and suffering. The jury awarded
no loss of consortium or punitive damages. The jury also found
that Baptiste was 25% comparatively negligent, and that this
negligence was a legal cause of his injuries. An asterisk and
handwritten note on the jury's special verdict form indicated
that the damage amounts specified in the special verdict
categories "should be net amounts[.] Plaintiff to receive all
Upon return of the special verdict, the superior court
held a bench conference with the attorneys. The court called the
attorneys' attention to the jury's handwritten note, but did not
at that time inform them of the amounts awarded. With the
attorneys' consent, the superior court asked the jury whether it
intended "that these numbers have included your calculation as to
comparative negligence, and that you expect the plaintiff to
receive all those numbers." The foreperson responded "Yes." The
superior court then read the special verdict into the record.
After both attorneys declined the opportunity to poll the jury,
the superior court discharged the jury. Neither counsel objected
to its discharge.
Blumenshine later moved for judgment notwithstanding
the verdict (JNOV) on the basis that (1) the award of past
medical expenses did not reflect Baptiste's 25% comparative
negligence, and (2) the evidence presented was insufficient to
support the award of future medical expenses. Blumenshine also
moved for a determination that he was the prevailing party for
purposes of an award of attorney's fees and costs.
The superior court denied Blumenshine a 25% reduction
in the jury's award of past medical expenses. The court granted
Blumenshine's motion with respect to future medical expenses and
decided Blumenshine was the prevailing party. This appeal and
A. Waiver of Inconsistency in Jury's Verdict
Blumenshine argues that the superior court erred in
declining to reduce the jury's award of past medical expenses to
reflect Baptiste's comparative negligence. In response, Baptiste
argues that the jury's verdict as to past medical expenses was
inconsistent, and that Blumenshine waived any objection to the
award by failing to challenge the consistency of the verdict
prior to the jury's discharge.
Baptiste adduced evidence showing he had sustained
$19,371 in damages for past medical expenses. The jury found
that Baptiste had suffered $19,371 in past medical expenses and
that 25% of his damages were sustained as a consequence of his
comparative fault.2 Without the jury's note to its special
verdict, Baptiste's award would have been reduced by 25% to
reflect his comparative negligence. However, the jury's note and
the foreperson's response to the superior court's question
indicated that the jury had already reduced the amount awarded
for past medical expenses in consideration of Baptiste's
comparative negligence. Given the evidence produced as to past
medical expenses, the amount of damages for past medical expenses
found by the jury, and the jury's note to its special verdict, it
is clear that the verdict as to this damage issue is
Blumenshine urges us to ignore the handwritten note as
"surplusage." In support of this contention, Blumenshine cites
instances in which courts have disregarded extraneous notes from
the jury. Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind. App.
1981) (disregarding a note that stated that portion of award was
for future medical expenses); Gilmore v. Control Data Corp., 442
N.W.2d 835, 839 (Minn. App. 1989) (disregarding a note that
stated that attorney's fees and court costs were to be awarded);
Gustavson v. O'Brien, 274 N.W.2d 627, 634 (Wis. 1979)
(disregarding a note regarding contributory negligence where it
was not an issue in the case). The notes in Barrow and Gilmore
did not create any inconsistencies. Rather, they constituted
additional "findings"the jury was not asked to make. Here the
jury's note explained its award for past medical expenses and
therefore, it cannot be struck as mere surplusage.
"To give effect to the jury trial right in civil cases"
this court will examine the pleadings, instructions, arguments
and evidence to obtain a view of the case that harmonizes what
seems at first to be an inconsistent verdict. Schmit v. Stewart,
601 P.2d 256 (Alaska 1979). "We will look for consistency, but
will not create it where there is none." City of Homer v. Land's
End Marine, 459 P.2d 475, 478 (Alaska 1969). Blumenshine has
failed to present any plausible theory of consistency short of
ignoring the note and the foreperson's response to the superior
Based on the inconsistency of the jury's verdict,
Baptiste argues that Blumenshine waived any objection to the
verdict.3 We agree. "Challenges to the consistency of a verdict
are deemed waived unless made prior to the discharge of the
jury." Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 446 n.7
(Alaska 1989); City of Homer, 459 P.2d at 480 (inconsistency
between total award of $84,000 on a twenty-year contract and
finding that plaintiff had suffered $500 damage in three years
and eight months was waived). We have noted that the waiver rule
"promotes the fair and expeditious correction of error." Id.
(quoting Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir. 1968)).
The superior court called the note to the attorneys'
attention and with the attorneys' approval questioned the jury
about its intent. After reading the verdict into the record and
offering to poll the jury, the superior court discharged the
jury. Despite this notice, counsel allowed the jury to be
discharged and the special verdicts filed. Since Blumenshine
failed to challenge the consistency of the special verdict
pertaining to damages for past medical expenses before the jury
was discharged, we hold that he waived this argument.
B. Award of Future Medical Expenses
In response to Blumenshine's motion for JNOV, the
superior court set aside the jury's award of $2,500 for future
medical expenses. Baptiste presented medical testimony that his
pain and disability were permanent and detailed evidence of his
past medical expenses. He asserts that his future medical
expenses can be inferred from the permanency of his injuries and
the cost of his past medical treatment for pain and disability
caused by the accident in question.
To recover for future medical expenses one must prove
to a reasonable probability that they will occur. Maddocks v.
Bennett, 456 P.2d 453, 458 (Alaska 1969). "[T]he jury cannot be
allowed to speculate or guess in making allowance for future
medical expenses; there must be some data furnished the jury upon
which it might reasonably estimate the amount to be allowed for
this item." Henderson v. Breesman, 269 P.2d 1059, 1061-62 (Ariz.
1954), quoted in Nesbett, 432 P.2d at 618 n.31.
Baptiste was required to present both evidence that
medical treatment would be necessary, and evidence of the
treatment's anticipated cost to recover for future medical
expenses. The Nevada Pain and Rehabilitation Center (Center),
where Baptiste participated in a twenty-day chronic pain
management program, concluded that Baptiste did not need any
further medical evaluations or medical treatment. The Center
recommended that Baptiste exercise, return to work and lose
weight. Although cortisone treatment was suggested by a
physician, Baptiste did not indicate that he would undertake the
treatment or what this treatment would cost. Accordingly,
Baptiste did not prove to a reasonable certainty that he would
incur future medical expense. We therefore affirm the superior
court's grant of JNOV as to the jury's award of damages for
future medical expenses.
C. Prevailing Party Determination
"[A]n award of attorney's fees to the prevailing party
is committed to the broad discretion of the trial court and will
be set aside only if manifestly unreasonable." Myers v. Snow
White Cleaners & Linen Supply, Inc., 770 P.2d 750, 752 (Alaska
1989). We will reverse a superior court's prevailing party
determination "only upon finding an abuse of discretion." Buoy
v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989).
Upon reconsideration, the superior court confirmed its
decision that Blumenshine was the prevailing party under Alaska
Civil Rule 82 for several reasons. First, Baptiste's recovery
was slight compared to the $700,000 in damages requested.
Second, Blumenshine had conceded that he was negligent, that his
negligence was a proximate cause of Baptiste's injuries, and that
Baptiste should recover his medical expenses. Baptiste lost on
the issues of loss of consortium and punitive damages. Baptiste
also unsuccessfully contended that he was not comparatively
Baptiste claims that he is the prevailing party because
the jury awarded him substantial damages for past and future
medical expenses, for physical impairment, and for pain and
suffering. We have consistently held that the prevailing party
is the one who prevailed on the main issues. Hillman v.
Nationwide Fire Ins. Co., 855 P.2d 1321, 1327 (Alaska 1993);
Buoy, 771 P.2d at 448; Hutchins v. Schwartz, 724 P.2d 1194, 1204
(Alaska 1986); Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska
1976); Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973); Owen
Jones & Sons, Inc. v. C.R. Lewis Co., 497 P.2d 312, 314 (Alaska
1972); Buza v. Columbia Lumber Co., 395 P.2d 511, 514 (Alaska
1964). A plaintiff may prevail even if he or she failed to
recover all of the relief prayed for. Hillman, 855 P.2d at 1328;
Alaska Placer, 553 P.2d at 63 (plaintiffs seeking $73,298 and
awarded $34,026 after offset were prevailing party); Buza, 395
P.2d at 514 (plaintiff seeking return of logs and damages and
awarded possession of logs but no damages determined to be the
A recovery does not guarantee prevailing party status.
Owen Jones, 497 P.2d at 314-15; see also Buoy, 771 P.2d at 438
(plaintiff's award offset entirely by previous settlements);
Hutchins, 724 P.2d at 1204 (recovery of $1,937 less 40% on
$275,000 claim considered de minimis, plaintiff not prevailing
party); Hayer v. National Bank of Alaska, 619 P.2d 474, 477
(Alaska 1980) (remanding where trial court relied solely on the
fact that plaintiff received an affirmative recovery). "[A]
litigant who successfully defeats a claim of great potential
liability may be the prevailing party even if the other side
receives an affirmative recovery." Buoy, 771 P.2d at 448.
However, a plaintiff should not be penalized for a
small recovery. Otherwise, a plaintiff with a modest recovery
who must pay substantial attorney's fees could end up with a net
loss. "The purpose of Civil Rule 82 is to partially compensate a
prevailing party for the costs and fees incurred where such
compensation is justified and not to penalize a party for
litigating a good faith claim." Malvo v. J. C. Penney Co., Inc.,
512 P.2d 575, 588 (Alaska 1973).
Although Baptiste did not prevail on every issue in
this case, he succeeded in obtaining the full damages requested
for past medical expenses, and $16,001 for past and future
physical impairment and pain and suffering. Since he recovered a
significant damage award on the main issues, Baptiste was the
prevailing party for the purpose of awarding attorney's fees. We
therefore conclude that the superior court abused its discretion
in determining that Blumenshine was the prevailing party.
The superior court's judgment is AFFIRMED as to past
and future medical expenses and is REVERSED as to its prevailing
party determination. We REMAND for determination of an award of
attorney's fees to Baptiste.
MATTHEWS, Justice, dissenting in part.
I agree with the majority opinion except to the extent
that it affirms the superior court's JNOV setting aside the
jury's award of $2,500 for future medical expenses.
There was evidence that Baptiste has an 18% permanent
physiological disability and permanent low back and leg pain. A
physician testified that much of this pain is the result of a
lower lumbar neuro-foraminal encroachment which would probably
get worse over time.4 A reasonable jury could conclude that
Baptiste would seek pain alleviation treatment in the future as
he had in the past. The cost of such treatment was inferable
from the cost of past treatments which were before the jury.
Further, the discharge summary of the Nevada Pain and
Rehabilitation Center, completed just a few weeks before trial,
recommended future participation in a supervised therapeutic
exercise program. It can be inferred from Baptiste's testimony
that he intended to follow the center's recommendation. The cost
of such a program can be inferred from bills in evidence showing
the costs of past therapeutic exercise sessions. Such costs are
encompassed within the term "future medical expenses"used in the
Based on the foregoing, there was, in my view,
sufficient evidence before the jury to justify its award of
future medical expenses. I would therefore reinstate this aspect
of the jury verdict.
COMPTON, Justice, dissenting in part.
In my view the superior court did not abuse its broad
discretion in determining that Blumenshine was the prevailing
party. Therefore I dissent from the court's resolution of the
prevailing party issue.
In general I do not disagree with the court's
discussion of the law, but rather with its application of the law
to the facts. Since the superior court's determination is fact
specific, I will set forth the facts more thoroughly than has the
At the outset it is important to understand what issues
were contested by Blumenshine. In answer to the Baptistes'
complaint, Blumenshine admitted that he was negligent and that
his negligence was a proximate cause of the accident. The only
issues were what damages were legally caused by Blumenshine's
conduct, and whether Wilfred Baptiste's own conduct was a legal
cause of any of his damages. In both his opening statement and
closing argument, Blumenshine urged the jury to award Wilfred the
damages to which he was entitled, essentially conceding the
claimed past medical expenses and seven months of past physical
At trial Wilfred sought past medical expenses in the
amount of $19,371, future medical expenses in the same amount,
past and future physical impairment and past and future pain and
suffering in the combined amount of $675,128, and punitive
damages in an unspecified amount. His wife sought damages for
loss of consortium in the amount of $50,000. Thus the Baptistes'
itemized request totalled $763,870. Wilfred denied that his own
negligence was a legal cause of his damages.
The jury awarded Wilfred $19,371 for his past medical
expenses, $2,500 for future medical expenses, $8,000 for past and
future physical impairment, $8,001 for past and future pain and
suffering, and "no"punitive damages. It awarded his wife "-0-"
for loss of consortium. Wilfred's own negligence was found to
have been 25% of the legal cause of his damages. These figures
were "net amounts Plaintiff [was] to receive." Blumenshine's
motion for a judgment notwithstanding the verdict was granted
with respect to the $2,500 future medical expenses. Thus the
Baptistes' award totalled $35,372. Exclusive of interest, costs
and attorney's fees, and the rejected punitive damages award, the
Baptistes received 4.6% of what they argued to the jury was their
due. Because Blumenshine virtually conceded the past medical
expenses of $19,371, Wilfred received only $16,001 of the total
$744,499 contested at trial. That is 2.1% of what was sought.
The superior court determined that Blumenshine was the
prevailing party, relying specifically on Hutchins v. Schwartz,
724 P.2d 1194, 1204 (Alaska 1986). The court then granted
Baptistes' motion for reconsideration, requested further
briefing, and entered a Memorandum and Order reaffirming its
prior ruling. It found:
The plaintiff was requesting a
judgment in an amount exceeding $700,000.
The defendant conceded that he was negligent
and a proximate cause of the accident and in
closing that plaintiff should be given his
The medical expenses were
$19,371.36, over $5,000 of which were
disclosed two days prior to trial and had not
been disputed during trial. The plaintiff
asked for consortium damages and lost. The
plaintiff asked for punitive damages and
lost. A substantial part of the trial was
devoted to this issue alone. The plaintiff
argued that there was no comparative
liability and lost. The jury awarded the
medical expenses and a total of $18,600 in
addition to that.
The defendant defeated several
claims of great potential liability and the
affirmative recovery was not significant in
comparison to the great damages requested.
Each of the trial court's findings is supported by the
evidence. The punitive damages issue consumed a full day of the
four day trial, more witnesses being called to testify on that
issue than any other.5 The claim was not frivolous: Blumenshine
had a significant alcohol abuse problem, and at the time of the
accident had over a .13 blood/alcohol level. He rear ended
Wilfred while traveling at an allegedly high rate of speed, and
earned an appropriate criminal sanction.
The extent of Wilfred's injuries was also vigorously
debated. One of his experts placed the value of his pain and
suffering, and loss of enjoyment of life, at $34,000 annually.
His impairment was also alleged to be significant. The potential
liability for these claims was great.
The question becomes whether the superior court
correctly applied the law. Our most recent review of the law is
found in Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321
(Alaska 1993). We observed:
An award of attorney's fees will be
reversed if the trial court's determination
is an abuse of discretion or "manifestly
unreasonable." Designation of the prevailing
party "is committed to the broad discretion
of the trial court."
The determination will be affirmed
on appeal "unless it is shown that the court
abused its discretion by issuing a decision
which is arbitrary, capricious, manifestly
unreasonable, or improperly motivated."
Id. at 1326-27 (citations omitted).
Further, we observed:
"[T]he prevailing party is the one 'who
has successfully prosecuted or defended
against the action, the one who is successful
on the "main issue"of the action and "in
whose favor the decision of verdict is
rendered and the judgment entered."'"
This court has recognized that "it
is not an immutable rule that the party who
obtains an affirmative recovery must be the
Id. at 1327 (citations omitted).
In Hillman we analyzed two cases, Owen Jones & Sons,
Inc. v. C.R. Lewis Co., 497 P.2d 312 (Alaska 1972), and Hutchins
v. Schwartz, 724 P.2d 1194 (Alaska 1986), in each of which the
party who obtained affirmative recovery was held not to be the
prevailing party. We concluded that the affirmative recovery in
Hutchins was de minimis:
[T]he plaintiff sought $275,000 in
compensatory damages. . . . [T]he jury
awarding some $1900, which in turn had to be
reduced by 40% because of plaintiff's
Id. at 1327. We noted that defendant had made an offer of
judgment under Civil Rule 68 for $35,000, entitling him to
attorney's fees after the date of the offer in any event.6
Owen Jones was somewhat different. Owen Jones sued
C.R. Lewis Co. for $119,663 for progress payments made on the
construction of a building partially completed when it collapsed
as a result of the March 27, 1964 earthquake. C.R. Lewis
counterclaimed for $46,620 for services and materials supplied
before the collapse. The superior court held that the building's
destruction discharged the original contract, and that the
reasonable value of Lewis' services and materials was $142,300.
In addition, Lewis had salvaged $30,000 worth of Owen Jones'
materials. Thus Owen Jones netted $7,300. However, the trial
court determined that Lewis was the prevailing party, a ruling
upheld on appeal. We remarked:
This recovery based on the accounting
can be classified as an incidental recovery
which will not be a sufficient recovery to
bar a party who has defended a large claim
from being considered a prevailing party.
Owen Jones, 497 P.2d at 314, n.5. We further remarked that the
"main issue" was whether Lewis had to refund the progress
payments, an issue on which it prevailed. We concluded that
which party prevails is "within the discretion of the trial
If indeed we mean that prevailing party determinations
are within the broad discretion of the trial judge, and will be
affirmed unless "arbitrary, capricious, manifestly unreasonable,
or improperly motivated,"it is difficult to conclude that the
trial judge in this case abused his discretion. The court does
not, or cannot, even identify whether the trial judge was
arbitrary, capricious, manifestly unreasonable, or improperly
However, if this court now means that an affirmative
recovery can be only de minimis (Hutchins) or incidental (Owen
Jones) before the other party may be determined to have
prevailed, then a trial judge's broad discretion has been
significantly circumscribed, without this court ever having
acknowledged that it has changed the law governing the
determination of prevailing party status.7
1 The superior court granted Baptiste's motion to
reconsider its prevailing party determination. After further
briefing, the superior court again found Blumenshine to be the
2 Comparative fault diminishes the amount awarded as
compensatory damages. See AS 09.17.060. "The court shall enter
judgment against each party liable on the basis of several
liability in accordance with that party's percentage of fault."
3 The parties agree that whether Blumenshine waived
objection to the jury's award of past medical expenses on the
grounds of inconsistency is a question of law. In reviewing a
superior court's ruling on a motion for JNOV, we will not weigh
conflicting evidence or judge the credibility of witnesses.
Rather, we will determine whether the evidence, when viewed in
the light most favorable to the non-moving party, is such that
reasonable persons could not differ in their judgment. Great
Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 578
4 Dr. Toeller testified: "The neuro-foraminal
encroachment is permanent. Arthritis over the years will probably
make that worse due to the combination of factors, the weight,
the injury and the degenerative disease in the discs."
5 Fifteen witnesses were called on the issue of
punitive damages, nine on all the other issues combined.
6 Blumenshine made a Civil Rule 68 offer of $35,000
before Baptiste made his belated disclosure of $5,569 additional
past medical expenses, a figure Blumenshine did not substantively
contest, two working days before trial. Baptistes' judgment
exceeded the offer by only $372. Had he disclosed these expenses
in a timely manner, Blumenshine reasonably might have been
expected to increase his Civil Rule 68 offer, particularly since
he did not contest that the expenses had been caused by the
accident. Because of the Baptistes' timing, Blumenshine had no
opportunity to submit a new offer of judgment. On these facts,
the trial court might have been justified in relaxing the
requirements of Civil Rule 68. See Alaska R. Civ. P. 94.
7 The court's ultimate conclusion is that "[s]ince
[Baptiste] recovered a significant award, he was the prevailing
party." If the "significance"of an award is measured in
relation to the amount contested at trial, then the different
language adds little to the prior analysis. Saying that an award
to a plaintiff is not significant compared to the amount sought
is simply another way of saying that the defendant prevailed on
the main issue or issues in the case. The trial court used the
word "significant" in this relative sense. It stated that
Baptistes' "affirmative recovery was not significant in
comparison to the great damages requested." It does not seem
manifestly unreasonable to conclude that an award of $16,001 is
not significant compared to the roughly $745,000, plus punitive
damages, the Baptistes sought.
However, I do not agree with the use of the term
"significant award"if the court intends its application in a non-
relational sense: an award that an average person would consider
substantial or nontrivial irrespective of the litigation. The
significance of an award for prevailing party determinations
should be measured in terms of the issues contested by the
parties. If the court does intend significance to be applied in
a non-relational sense, I suggest that the opinion will be read
as an invitation to make recovery of a "significant award" an
absolute limitation on prevailing party determinations, even
though there is no standard by which to measure what is
"significant." Since this court does not offer any basis or
justification for its determination that Wilfred recovered a
"significant award," in the face of the trial court's
determination that Wilfred's "recovery was not significant in
comparison to the great damages requested,"I suggest it intends
"significant award"in a non-relational, standardless sense. I
believe this is ill-advised.