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Coulson v. McLennan (2/26/99), 973 P 2d 1142
<![CDATA[
Notice: This opinion is subject to 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, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SHIRLEY J. COULSON, )
) Supreme Court No. S-7888
Appellant, )
) Superior Court No.
v. ) 3AN-94-3614 CI
)
MARSH & McLENNAN, INC., ) O P I N I O N
CHARLES ANDERSON, JACKIE )
BRUNTON, and ANDERSON-BRUNTON ) [No. 5087 - February 26, 1999]
INSURANCE BROKERS, INC., )
)
Appellees. )
______________________________)
)
MARSH & McLENNAN, INC., )
) Supreme Court No. S-7998
Cross-Appellant, )
)
22. )
)
SHIRLEY J. COULSON, )
)
Cross-Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Jody Patrick Brion, Leutwyler,
Brion & Associates, Anchorage, for Shirley J.
Coulson. Amy R. Menard, Gilmore & Doherty,
Anchorage, for Marsh & McLennan, Inc. Laura
L. Farley, Le Gros, Buchanan & Paul,
Anchorage, for Charles Anderson, Jackie
Brunton, and Anderson-Brunton Insurance
Brokers, Inc.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
1. INTRODUCTION
Marsh and McLennan, Inc. (MMI) sold its "book of
business"to Anderson-Brunton Insurance Brokers, Inc. (ABIB). ABIB
offered employment to MMI employee Shirley Coulson, but she
declined the offer. Alleging that personal property was taken from
her office after she declined ABIB's offer, Coulson sued MMI and
ABIB. Her claims were resolved against her by partial summary
judgments, a directed verdict, and jury verdicts. Because Coulson
has not shown that it was error to grant summary judgment to
defendants or that any alleged error prejudiced her, we affirm on
all issues she raises in her appeal. On MMI's cross-appeal, we
vacate the attorney's fees award and remand.
2. FACTS AND PROCEEDINGS
MMI is a national insurance brokerage firm that had an
office in Anchorage. It employed Shirley Coulson as an insurance
account executive in its Anchorage office. When MMI sold its book
of business to ABIB in 1992, ABIB took over MMI's Anchorage office
space. ABIB offered employment to Coulson, who declined the offer
on May 4, 1992. Immediately after she declined the offer, ABIB
asked her to leave the office; Coulson was to return later for her
personal property. Coulson claimed that when she returned several
days later to clean out her office and desk, she discovered that
some of her personal files and her insurance reference materials
were missing. She informed Charles Anderson, an ABIB owner, that
an important file marked "Shirley"was not in her office. ABIB
retrieved this file and returned it to her. No other materials
were returned to her.
Coulson sued MMI, ABIB, and ABIB's principals, alleging:
invasion of privacy, conversion, negligent infliction of emotional
distress (NIED), intentional infliction of emotional distress
(IIED), intentional interference with prospective economic
advantage, breach of the implied covenant of good faith and fair
dealing, employment discrimination, and negligence. She sought an
order directing the defendants to return her files and personal
effects, monetary damages exceeding $50,000 for her common law
claims, punitive damages, and attorney's fees and costs.
The superior court granted summary judgment to ABIB on
Coulson's claims of IIED, intentional interference with prospective
economic advantage, and breach of the implied covenant of good
faith and fair dealing; and on the issue of punitive damages. The
court granted ABIB summary judgment on Coulson's NIED claim, but
reinstated the claim on reconsideration. The court also granted
summary judgment to MMI on all claims except negligence.
A jury trial was then conducted on Coulson's invasion of
privacy, conversion, negligence, and NIED claims against ABIB, and
on Coulson's negligence claim against MMI. When Coulson concluded
her case in chief, the superior court granted MMI a directed
verdict on Coulson's negligence claim. The court submitted
Coulson's claims against ABIB to the jury, which returned special
verdicts for ABIB on each claim.
Coulson appeals.
3. DISCUSSION
1. "In Camera"and Discovery Issues
In January 1995 Coulson moved to compel production of
documents which ABIB had objected to producing in discovery. She
also asked the court to compel MMI to produce an unredacted copy of
the purchase agreement. Defendants opposed her motions and ABIB
moved for a protective order. The superior court ordered in camera
review of the documents. They consisted of documents written by
officers of ABIB concerning the employment status of MMI employees,
copies of ABIB corporate records, and related documents. They
include an unredacted copy of the MMI-ABIB sales agreement. The
superior court never stated specifically whether the documents
submitted for in camera review had to be produced. Nor did the
court state whether it had reviewed the documents before it granted
partial summary judgment to ABIB and MMI.
Coulson argues on appeal that the superior court failed
to consider the in camera evidence before granting partial summary
judgment to ABIB. She also claims the court failed to review the
documents within pertinent time limits. Finally, she argues that
it was error not to compel production of unredacted copies of
corporate records and the MMI-ABIB purchase agreement. The
confidential appellate excerpt contains the documents produced for
in camera review, and apparently includes the documents which were
the subject of Coulson's motion to compel.
Whether to conduct an in camera examination of documents
lies within the discretion of the trial court. 1 We review the
denial of a motion to compel discovery for abuse of discretion. 2
We generally review discovery orders under the deferential abuse
of discretion standard, but we apply our independent judgment in
deciding whether the trial court weighed the appropriate factors,
because that is a legal question. 3
1. Waiver of issue
We first reject appellees' argument that, by failing to
demand a ruling before proceeding to trial, Coulson waived a claim
that the superior court failed to rule on her motion to compel.
Coulson preserved the issue by requesting a ruling on her motion on
three occasions: in her December 1995 opposition to ABIB's summary
judgment motion, at the May 1996 oral argument, and in her June 24,
1996, reconsideration motion.
2. Harmless error
To prevail on appeal, Coulson must show that the alleged
errors had a substantial influence on the outcome of the case. 4 If
not, any error is deemed harmless and we must affirm. 5
We note preliminarily that trial courts should enter
express rulings on motions to compel. They should also indicate
whether they have reviewed documents supplied in camera and whether
they have relied on them in ruling on motions. Failure to do so
can cause needless and avoidable confusion on appeal about what
happened in the trial court, and may require remand, if not
reversal. But given the circumstances here, we conclude that any
possible error was harmless.
Coulson has only generally alleged on appeal how the
documents might be pertinent. She asserts they could have helped
establish that she was treated worse than other MMI employees who
were offered severance pay; could have substantiated her implied
covenant and negligence claims against MMI in the handling of the
closing of the office; could have shed light on how Charles
Anderson defined "proprietary"; and could have indicated whether
ABIB had an on-going relationship with MMI and was MMI's agent with
respect to taking Coulson's property.
Having reviewed the documents submitted in camera, we
conclude that they shed no light on any of these issues except,
perhaps, the question of whether ABIB was MMI's agent for any
purpose. We nonetheless assume for the sake of discussion that the
documents might have been relevant to those issues, as Coulson
argues. She claims the documents could have helped her defeat
ABIB's summary judgment motion. 6 But the jury verdict and MMI's
partial summary judgment rendered any possible error harmless.
First, any error was harmless as to Coulson's claims
against MMI. The superior court granted summary judgment to MMI on
Coulson's claims for invasion of privacy, conversion, NIED, and
IIED, reasoning that ABIB was not MMI's agent. Ultimately, ABIB
itself was found not liable for these torts. 7 Excepting special
circumstances, 8 if the acts of an agent do not make the agent
liable, the principal cannot be liable for the acts of the agent
either. 9 Coulson has articulated no special circumstances and no
theory by which MMI could be liable for non-tortious acts of ABIB.
Accordingly, any evidence supporting the contention that ABIB was
an agent of MMI is immaterial to Coulson's tort claims.
Second, any possible error was harmless as to Coulson's
claims against ABIB. The documents were irrelevant to her implied
covenant claim against ABIB because Coulson had no contract with
ABIB; she therefore had no implied covenant claim against ABIB. 10
ABIB's alleged agency relationship with MMI was also irrelevant to
an implied covenant claim against ABIB, because even if it was
MMI's agent, ABIB owed Coulson no duties under an implied covenant.
Moreover, any claim that ABIB as agent of MMI was liable
to Coulson for breach of the implied covenant of good faith and
fair dealing could succeed only if there was in fact a breach of
that covenant. The superior court granted summary judgment to MMI
because there was no breach of the covenant. For reasons discussed
in Part III.C.1, the superior court did not err in granting summary
judgment to MMI on that claim. Because there was no breach of the
implied covenant of good faith and fair dealing, any error in
failing to compel production of documents bearing on agency did not
prejudice Coulson.
Since Coulson's agency-based claims would have failed on
their merits even if the documents had been produced unredacted,
any error was harmless. Because we dispose of the in camera issue
on harmless error grounds, we need not consider the other arguments
proffered by MMI and ABIB in support of affirmance, or Coulson's
argument that a failure to conduct in camera review requires
reversal. We therefore affirm on all issues relating to the in
camera evidence and Coulson's motion to compel.
3. Rule 56(f) continuance
Alaska Civil Rule 56(f) allows a party opposing summary
judgment to seek additional time to gather and submit evidence to
justify the party's opposition. 11 Coulson argues that the superior
court erred by entering partial summary judgment for MMI and ABIB
without ordering a Rule 56(f) continuance. 12 She claims that she
was entitled to a Rule 56(f) continuance because the superior court
had not ruled on her motion to compel when MMI and ABIB sought
summary judgment.
Any possible error in failing to grant a continuance was
harmless. Coulson would not have prevailed even if the documents
submitted in camera had been produced to her. See supra, Part
III.A.2.
2. Agency Issues
The superior court granted summary judgment to MMI on the
ground that ABIB was not MMI's agent. When she moved for
reconsideration, Coulson submitted later-found evidence that
purported to show that ABIB was MMI's agent. The superior court
denied Coulson's reconsideration motion. Coulson argues that it
was error to hold that ABIB was not MMI's agent and to deny
Coulson's motion for reconsideration. Because Coulson's claims
would have failed even if ABIB had been MMI's agent, see
supra, Part III.A.2, any error in granting summary judgment was
harmless. We therefore need not determine whether the superior
court erred when it ruled that ABIB was not MMI's agent and denied
Coulson's reconsideration motion.
3. Summary Judgment Issues
Coulson contends that the superior court erroneously
granted partial summary judgment to MMI and ABIB. We consider each
of the dismissed claims. 13
1. Implied covenant of good faith and fair dealing
Coulson first argues that it was error to grant summary
judgment to ABIB and MMI on Coulson's implied covenant claims, and
to focus on the fact that ABIB did not employ Coulson. She asserts
that the implied covenant arose in the MMI-ABIB contract of sale,
and that she was a named beneficiary of that contract who was
entitled to its benefits. She argues that she might have been able
to show that she was an intended beneficiary had she been able to
see the evidence submitted for in camera review. She apparently
theorizes that the MMI-ABIB agreement contemplated that she would
receive something more, perhaps severance pay, than a job offer
from ABIB.
The agreement required ABIB to offer Coulson full-time
employment, but did not specify the terms to be offered. It also
stated that "Seller shall be responsible for any severance pay,
vacation pay or other benefits such employees may be entitled to
under the law or Seller's policies and procedures as set forth in
Seller's Employee Handbook." We conclude from the record and the
in camera documents that no evidence permitted a reasonable
inference that the agreement contemplated that Coulson would
receive any benefit other than a job offer. 14 Coulson conceded at
her deposition that the Handbook contained no policy or procedure
for severance payments to employees, and recognized that no
promises or verbal representations were made to her by MMI with
regard to severance. Because ABIB offered her employment, she
received everything the agreement required. There was consequently
no breach of the implied covenant. The superior court correctly
granted summary judgment to MMI on this claim.
The superior court granted summary judgment to ABIB on
the implied covenant claim because ABIB had never employed Coulson.
Because there was no evidence that Coulson was denied any
fundamental benefit of the MMI-ABIB agreement, the superior court
correctly concluded that there was no breach of the implied
covenant. ABIB was therefore entitled to summary judgment on the
implied covenant claim for the same reason MMI was.
2. Intentional infliction of emotional distress
Coulson argues that the superior court erroneously
granted summary judgment to ABIB and MMI on her IIED claims. 15
An IIED claim requires evidence that "[t]he offending
party, through extreme or outrageous conduct, . . . intentionally
or recklessly cause[d] severe emotional distress or bodily harm to
another."16 A plaintiff must show severe injury, and the superior
court must determine as a threshold matter whether the emotional
distress is sufficiently severe to submit the claim to the jury. 17
Coulson testified at her deposition that the loss of the
files did not cause her to suffer any embarrassment, humiliation,
or economic disadvantage. That concession required dismissal of
her IIED claims.
Given the jury's finding that ABIB and its principals did
not damage or interfere with Coulson's right to possess the
personal property, we also hold that the superior court did not err
in concluding that the defendants did not engage in the extreme or
outrageous conduct required for IIED.
We therefore affirm on this issue.
3. Punitive damages
Coulson argues that the superior court erroneously
granted summary judgment to ABIB and MMI on her punitive damages
claims. The superior court concluded that Coulson failed to
establish the prerequisites for this claim and granted summary
judgment to ABIB and MMI.
Because Coulson has failed to prevail on the merits of
any of her tort claims, the appropriateness of punitive damages for
those claims is a moot question. 18 We therefore affirm on this
issue.
3. Intentional interference with prospective economic
advantage
Coulson argues that the superior court erred by granting
summary judgment to ABIB on her claim of intentional interference
with prospective economic advantage. She testified that she lost
no clients as a result of the loss of files. The superior court
relied on Coulson's testimony to dismiss the claim. Coulson does
not dispute this finding and she does not explain why the superior
court erred by granting summary judgment on these grounds. No
evidence supported a finding of interference with prospective
economic advantage. We therefore affirm on this issue.
4. Invasion of privacy, conversion, and negligent
infliction of emotional distress
The superior court granted summary judgment in favor of
MMI on all of Coulson's claims except negligence, because there was
no agency relationship between MMI and ABIB. Coulson contends that
summary judgment was inappropriately granted to MMI on the claims
of invasion of privacy, conversion, and NIED, because ABIB acted as
MMI's agent when her files were allegedly taken.
Coulson's arguments do not warrant reversal. Any error
in granting summary judgment to MMI was rendered harmless by the
jury's verdict. Because the jury found that ABIB was not liable
for these torts, MMI could not be liable for these torts even if
ABIB was MMI's agent. See supra, Part III.A.2.
5. Employment discrimination
Coulson contends that it was error to grant summary
judgment to MMI on her employment discrimination claim. Relying on
federal employment discrimination law, she contends that she "made
a prima facie showing that she was treated differently, and worse,
than other employees, and demonstrated the specter of impermissible
factors playing a role in her employer's decisions."
Coulson did not establish a prima facie case of disparate
treatment. She fails to allege that she was treated differently
based on her status as a member of a protected class. 19 The
superior court granted summary judgment to MMI because Coulson
failed to make a prima facie case even if the facts she alleged
were true:
Assuming for purposes of this motion that
Plaintiff was the only employee required to
take a 25% cut in pay and was the only
employee subject to a three year covenant not
to compete, Plaintiff fails to provide a legal
basis that such an offer amounted to a legally
actionable claim for discrimination.
Coulson's discrimination claim seems to be predicated on
the fact that she did not receive severance pay from MMI. MMI has
explained why Coulson did not receive severance pay from MMI: only
employees who did not receive offers for full-time employment from
ABIB were offered severance pay. MMI made the same argument to the
superior court in seeking summary judgment, and supported that
argument with an affidavit in which Charles Anderson affied that
those former MMI employees who were offered employment would not
receive severance pay from MMI. The superior court referred to
this argument in its order for summary judgment to MMI. Coulson
has not demonstrated how MMI's explanation is flawed or why the
superior court should not have accepted it.
We therefore affirm on this issue.
4. Prior Bad Act Issue
At trial, Coulson sought to introduce evidence that
Anderson had copied confidential client lists belonging to his
previous employer when he left that employment to join MMI. The
superior court excluded the evidence because it was prejudicial,
irrelevant, lacked probative value, and had "only a speculative
connection to conduct alleged in this case." Coulson contends that
it was error to exclude the evidence, because it showed Anderson's
state of mind, his intent to convert her property, the identity and
motive of the person who removed her files, and the absence of
mistake. 20
This was evidence of an alleged prior bad act. It was
propensity evidence excludable under Alaska Evidence Rules 403 and
404. The superior court did not abuse its discretion in excluding
it on the ground that it was more prejudicial than probative.
5. Verdict Form
Coulson's claims against ABIB for invasion of privacy,
conversion, negligence, and NIED were submitted to the jury with
ABIB's proposed special verdict form. The form specified the
elements necessary for each of Coulson's claims, and required the
jury to answer straightforward "yes or no"questions. Using the
form, the jury returned a verdict for ABIB on each claim.
Coulson argues that the superior court abused its
discretion by adopting the detailed verdict form, rather than using
a simple form that would have asked whether Coulson had met her
burden of proof on each claim. 21 She claims that the special
verdict form confused the jury.
There was nothing wrong with the special verdict form.
It allowed the jury to evaluate the elements of each claim. 22 We
affirm.
6. MMI's Cross-Appeal
After three days of trial, MMI moved for a directed
verdict. The superior court granted the motion. After two more
days of trial, the claims against ABIB were submitted to the jury,
which found for ABIB. Applying Alaska Civil Rule 82(b), the
superior court awarded MMI twenty percent of its actual attorney's
fees, but awarded ABIB thirty percent of its actual attorney's
fees. MMI's counsel affied that MMI's actual attorney's fees were
$64,365.
MMI argues in its cross-appeal that it was error to award
MMI less than thirty percent of its actual and reasonable
attorney's fees. 23
Rule 82(b)(2) provides in part that,
In cases in which the prevailing party
recovers no money judgment, the court shall
award the prevailing party in a case which
goes to trial 30 percent of the prevailing
party's reasonable actual attorney's fees
which were necessarily incurred, and shall
award the prevailing party in a case resolved
without trial 20 percent of its actual
attorney's fees which were necessarily
incurred.
Rule 82(b)(3) itemizes factors that permit deviation from Rule
82(b)(2), but requires a court to "explain the reasons for the
variation."
Because no written finding accompanied the order awarding
fees, we presume that the superior court did not rely on Rule
82(b)(3). The superior court consequently must have reasoned that
the case against MMI was "resolved without trial"for purposes of
Rule 82(b)(2) because the court awarded MMI only twenty percent,
rather than thirty percent, of its actual attorney's fees. Having
awarded ABIB thirty percent of its actual attorney's fees, the
superior court appears to have interpreted Rule 82(b)(2) to limit
the presumptive thirty-percent rate to parties receiving favorable
jury verdicts or trying their cases to completion.
MMI argues that the case against it did in fact go "to
trial"for purposes of Rule 82(b)(2), given that its trial lasted
three days, and ended only when its directed verdict motion was
granted. We agree. We therefore vacate MMI's attorney's fee award
and remand for entry of either an award of thirty percent of MMI's
fees under Rule 82(b)(2), or written findings under Rule 82(b)(3)
to justify a deviation from Rule 82(b)(2).
4. CONCLUSION
Because Coulson would have lost even if she had been able
to prove that ABIB was MMI's agent, we AFFIRM on the in camera,
continuance, agency, and summary judgment issues. Because the
superior court did not err by excluding evidence of Anderson's
alleged prior bad act under Evidence Rule 403 or by using the
detailed verdict form, we also AFFIRM on these issues.
On MMI's cross-appeal, we VACATE the award of attorney's
fees for MMI, and REMAND for the proceedings described in Part
III.F.
Footnotes
1 See Capital Info. Group v. State, Office of Governor, 923
P.2d 29, 37 n.5 (Alaska 1996).
2 See Stone v. International Marine Carriers, Inc., 918
P.2d 551, 554 (Alaska 1996) (citing R.E. v. State, 878 P.2d 1341,
1345 (Alaska 1994)).
3 See In re Mendel, 897 P.2d 68, 72 n.7 (Alaska 1995).
4 See Myers v. Robertson, 891 P.2d 199, 207-08 (Alaska
1995).
5 See Veal v. Newlin, Inc., 367 P.2d 155, 157 n.8 (Alaska
1961) ("Harmless error must be disregarded."); see also Alaska R.
Civ. P. 61.
6 We note that there was no argument in the superior court
that would have required the superior court to grant Coulson's
motion to compel and to order the documents produced unredacted.
7 The court granted summary judgment to ABIB on the IIED
and punitive damages claims. The jury returned a verdict in favor
of ABIB on the claims of invasion of privacy, conversion,
negligence, and NIED.
8 See, e.g., Restatement (Second) of Agency § 212 cmt. c
(1958) ("The master may be liable although the actor is not liable.
This is true in those cases in which liability is based upon
knowledge of facts which the master has but which the servant does
not have.").
9 Cf. Restatement (Second) of Agency § 219(1) (1958) ("A
master is subject to liability for the torts of his servants
committed while acting in the scope of their employment."); id. §
215 ("A master or other principal who unintentionally authorizes
conduct of a servant or other agent which constitutes a tort to a
third person is subject to liability to such person."); W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 69, at 499-
501 (5th ed. 1984) (discussing liability of masters for torts
committed by servants).
10 See Continental Ins. Co. v. Bayless & Roberts, Inc., 608
P.2d 281, 287-88 (Alaska 1980) (stating that claims supervisor who
was not party to insurance contract was not bound by implied
covenant of good faith and fair dealing).
11 See Alaska R. Civ. P. 56(f); Parson v. Marathon Oil Co.,
960 P.2d 615, 619 (Alaska 1998); Gamble v. Northstore Partnership,
907 P.2d 477, 484-85 (Alaska 1995).
12 We review a superior court's decision on whether to
permit further discovery under Civil Rule 56(f) for an abuse of
discretion. See Mount Juneau Enters., Inc. v. City of Juneau, 923
P.2d 768, 773 (Alaska 1996).
13 "When reviewing a grant of summary judgment, we
independently 'determine whether any genuine issue of material fact
exists and whether the moving party is entitled to judgment on the
law applicable to the established facts.'" R.E. v. State, 878 P.2d
1341, 1345 (Alaska 1994) (quoting Wright v. State, 824 P.2d 718,
720 (Alaska 1992)). "In doing so we must draw all reasonable
inferences in favor of the non-moving party." Id.
14 See Neal & Co. v. Association of Village Council
Presidents Reg'l Hous. Auth., 895 P.2d 497, 505 (Alaska 1995)
(stating that "a third-party right in a contract will not be
implied absent evidence showing that the parties intended that at
least one purpose of the contract is to benefit the third party").
15 Although we review a superior court's grant of summary
judgment de novo, the question whether a plaintiff "presented
sufficient evidence to support a prima facie case for IIED is a
threshold question to which we apply an abuse of discretion
standard." Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013,
1015 (Alaska 1995) (citing Cameron v. Beard, 864 P.2d 538, 548
(Alaska 1993)).
16 Landers v. Municipality of Anchorage, 915 P.2d 614, 619
n.14 (Alaska 1996).
17 See Nome Commercial Co. v. National Bank of Alaska, 948
P.2d 443, 453 (Alaska 1997) (citing Cameron v. Beard, 864 P.2d 538,
548 (Alaska 1993)).
18 See Haskins v. Shelden, 558 P.2d 487, 492 (Alaska 1976)
(acknowledging the rule that a claim of punitive damages does not
broaden the range of actionable wrongs).
19 See generally Haroldsen v. Omni Enters., Inc., 901 P.2d
426, 430 (Alaska 1995); Strand v. Petersburg Pub. Sch., 659 P.2d
1218, 1222 n.7 (Alaska 1983).
20 [T]he trial court may in its discretion
exclude relevant evidence if it finds its
probative value is outweighed by the risk that
it will have a prejudicial effect on the jury,
confuse the issues, or mislead the jury. The
standard for appellate review of a lower
court's decision to exclude testimony is
whether it committed a clear abuse of
discretion.
Babinec v. State, 586 P.2d 966, 968 (Alaska 1978) (citations
omitted). See also Sever v. Alaska Pulp Corp., 931 P.2d 354, 359
n.5 (Alaska 1996) ("A trial court's evidentiary rulings are
reviewed under the abuse of discretion standard.").
21 "As a type of jury instruction, a special verdict form is
subject to the same standard of review as other jury instructions."
Manes v. Coats, 941 P.2d 120, 125 n.5 (Alaska 1997). "The trial
court's jury instructions generally involve questions of law which
are subject to the independent judgment standard of review. Errors
in jury instructions will not be grounds for reversal unless they
caused prejudice." Sever, 931 P.2d at 361 n.11. We review de novo
the question whether there has been prejudicial error in jury
instructions. See Harris v. Keys, 948 P.2d 460, 465-66 (Alaska
1997). "The decision whether to include a particular instruction
rests with the discretion of the trial court." Shane v. Rhines,
672 P.2d 895, 901 (Alaska 1983).
22 Cf. Patricia R. v. Sullivan, 631 P.2d 91, 103 (Alaska
1981) (criticizing special verdict form that required jury to list
the defects or negligent acts that proximately caused the
plaintiffs' injury as confusing in context of strict liability
action).
23 We review the award of attorney's fees for abuse of
discretion. See Bruner v. Petersen, 944 P.2d 43, 49-50 (Alaska
1997) (citing McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165,
1167 (Alaska 1993)). "We will find that a trial court abused its
discretion only when we are left with a definite and firm
conviction, after reviewing the whole record, that the trial court
erred in its ruling." Id. (citing Peter Pan Seafoods, Inc. v.
Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).
-21- 5087
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