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Nelson v. Progressive Corporation (3/26/99), 976 P 2d 859
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
ANTONE NELSON, )
) Supreme Court Nos. S-7695/7725
) Superior Court No.
v. ) 3AN-94-10607 CI
PROGRESSIVE CORP., and/or ) O P I N I O N
PROGRESSIVE COMPANIES and/or )
PROGRESSIVE PREFERRED )
INSURED COMPANY, )
Appellees/ ) [No. 5099 - March 26, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Peter Gruenstein, Patricia A.
Vecera, Gruenstein, Hickey & Stewart, Anchorage, for
Appellant/Cross-Appellee. Gary A. Zipkin, Susan M. West, Guess &
Rudd, Anchorage, for Appellees/Cross-Appellants.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
This appeal arises from a disputed claim on uninsured
motorist coverage issued to Antone Nelson by his insurer,
Progressive. Nelson was awarded the policy limits at arbitration.
In the subsequent bad faith lawsuit, the jury found that
Progressive engaged in knowing misrepresentation and awarded
compensatory damages, but did not find that Progressive acted in
bad faith or that punitive damages were warranted. Nelson raises
various claims of error in his bid for a new trial. We affirm
because Nelson has waived his right to challenge any inconsistency
in the jury's verdict, because the jury's punitive damages finding
was not plainly unreasonable, and because we find that the trial
court did not abuse its discretion.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In July 1993 Antone Nelson's left knee was injured when
a vehicle driven by an intoxicated motorist collided with Nelson's
vehicle at an Anchorage intersection. The intoxicated motorist was
uninsured, but Nelson had a policy with Progressive which included
uninsured motorist coverage of $100,000 and medical payments
coverage of $10,000.
Nelson's claim under his Progressive policy was assigned
to adjuster Timothy Intfen. Intfen investigated the claim by
requesting damage information from Nelson's present and past
treating physicians and his employer. During his investigation,
Intfen learned that Nelson had torn his left anterior cruciate
ligament (ACL) in a motocross accident in 1984. This injury had
required reconstructive surgery.
For more than three months following the collision,
Nelson was unable to work. He was seen by two physicians, and
engaged in physical therapy. In November 1993 Progressive offered
to settle Nelson's uninsured motorist claim for $10,000. Nelson
rejected the offer, but did not state a counter-offer. In February
1994 Nelson's knee specialist advised Nelson that he had reached a
plateau, and would either have to learn to live with discomfort or
have arthroscopic surgery. In March 1994 Nelson informed
Progressive that his physician was recommending surgery, and made
a settlement offer of $70,000. Progressive counter-offered
$18,000, which Nelson rejected, and the parties made little
progress toward settlement.
In May 1994 Progressive retained the Stealth Group for
surveillance of Nelson's activities, and Comprehensive Medical
Review for a review of Nelson's medical records. The Stealth Group
documented Nelson's activities over the course of three days in
May, and provided Progressive with a seven-page report and
videotape. A doctor with the Medical Review company, Dr. Curran,
"recommend[ed] that the care Mr. Nelson has received for his left
ACL problems, including any future surgery, should be apportioned
entirely (100%) to the pre-existing condition of this ligament."
In June 1994 Nelson offered to accept $119,377.50 to
settle his claim. Relying upon and providing Nelson with Dr.
Curran's medical report, Progressive responded by reiterating its
offer of approximately $18,000. Nelson maintained that "the
conclusions of the non-examining physician cannot be valid[,]"and
repeated his last settlement offer. As the parties had reached an
impasse, Progressive invoked the arbitration clause in the policy.
Progressive provided Nelson with a copy of what it stated was his
Both Progressive and Nelson retained counsel for the
arbitration. Progressive's counsel instructed the Stealth Group to
prepare a condensed version of the surveillance videotape for the
arbitration hearing. After viewing the condensed videotape at the
hearing, Nelson and his attorney realized that the videotape
previously produced to Nelson was incomplete, because certain
scenes on the condensed tape did not appear on the tape that
Progressive had disclosed earlier.
At arbitration, Nelson was awarded $195,000 plus
prejudgment interest. Progressive subsequently paid Nelson's
B. Procedural Background
Based on events taking place during the claims settlement
process, Nelson filed a bad faith lawsuit against Progressive,
seeking both compensatory and punitive damages. A jury trial began
before Judge Joan Woodward on February 27, 1996, and lasted
approximately three weeks. The jury awarded compensatory damages
of $48,000 on Nelson's misrepresentation claim, but that amount was
later reduced to $30,134.60 on an unopposed motion for remittitur.
The jury found that Progressive did not act in bad faith, and that
punitive damages were not warranted. The trial court held that
Progressive was the prevailing party for the purpose of Civil Rule
82 attorney's fees. The court awarded Progressive a total judgment
of $80,971.37, calculated by offsetting Nelson's judgment of
$30,134.60, plus $3,796.04 in prejudgment interest from Progres-
sive's costs of $44,902.01, and attorney's fees in the amount of
Nelson now appeals, and Progressive cross-appeals in the
event of remand for a new trial.
A. The Trial Court Did Not Abuse Its Discretion in Denying
Nelson a New Trial.
After the jury returned its special verdicts finding that
Progressive engaged in knowing misrepresentation but not bad faith,
and awarding Nelson $48,000 in compensatory damages but not
awarding punitive damages, Nelson orally moved for judgment
notwithstanding the verdict (jnov) before the jury was discharged.
Nelson argued that a reasonable jury could not have found that
punitive damages were not justified on the evidence presented. The
superior court denied the motion. The court reasoned that a
reasonable jury could have concluded that punitive damages had not
been proved by clear and convincing evidence, but nevertheless
awarded compensatory damages under a preponderance of the evidence
After the jury was excused, Nelson moved for a new trial,
arguing for the first time that the special verdicts on bad faith
and knowing misrepresentation were inconsistent. The superior
court denied the motion on two grounds. First, it held that Nelson
had waived his argument of inconsistent verdicts by failing to
challenge any alleged inconsistency before the jury was discharged.
And second, the court held that reasonable jurors could disagree as
to whether Nelson had proved entitlement to punitive damages by
clear and convincing evidence.
On appeal, Nelson argues that the trial court abused its
discretion in denying a new trial. [Fn. 1] Nelson argues that the
special verdicts on intentional misrepresentation and bad faith are
inconsistent. Nelson alternatively contends that the jury's
decision not to award punitive damages was against the weight of
1. Nelson waived his right to challenge any
inconsistency in the jury's verdict.
Nelson argues that he did not waive his right to
challenge the inconsistency of the special verdict. The superior
court applied the "waiver rule"first expressed in City of Homer v.
Land's End Marine. [Fn. 2] Under this rule, a litigant waives his
right to challenge the consistency of a jury's verdict if he fails
to raise the issue and move for resubmission prior to the jury's
discharge. [Fn. 3] The reasons for the rule are to promote the
efficient operation of the courts and to prevent jury-shopping by
litigants, who would otherwise be able to choose between moving for
resubmission to the same jury or, by remaining silent, seeking a
new trial before a new jury. [Fn. 4] The waiver rule has been
consistently followed by this court. [Fn. 5] Nelson failed to
raise the issue of verdict inconsistency before the jury was
discharged and thus has waived his right to challenge the verdict
on that basis.
After the jury returned its special verdict and before
the jury was discharged, Nelson moved for judgment notwithstanding
the verdict and asked the court to overturn the jury's verdict on
the basis that no reasonable jury could have concluded that
punitive damages were not warranted. Nelson's counsel stated:
My proposal to the Court is that the --
that we -- the Court send the jury back with respect to question
No. 6, with appropriate instructions, and -- or, I'm sorry, not
back with respect to question No. 6, but that enter a judgment
notwithstanding the verdict on 6 and proceed to phase two. Now,
recognizing that we're probably gonna have an uphill battle there
if the jury is so reluctant to award monetary damages with respect
to punitive damages, but it is absolutely clear from that verdict
that they found conduct that ex-- that well exceeds the minimum
required for punitive damages, and I would submit to the Court that
no reasonable jury could find otherwise in this case, based on the
overwhelming evidence. And that is what, more than anything, that
verdict means. They found knowing misconduct.
(Emphasis added.) Nelson did not argue that the jury's finding of
knowing misrepresentation was inconsistent with its finding that
Progressive did not act in bad faith. Nor did Nelson move for
resubmission to the jury, requesting that the jury reconsider the
claimed inconsistency. Instead, Nelson's motion was a motion for
jnov directed toward the court and asking the court to overturn the
jury's verdict as a matter of law.
In conclusion on this point, Nelson neither raised an
inconsistent verdict argument nor sought resubmission of the
inconsistent verdicts before the jury was discharged. Nelson
therefore waived his right to challenge any alleged inconsistency
in the special verdicts.
2. The jury's punitive damages finding was not plainly
unreasonable and unjust.
Nelson alternatively argues that the jury's decision not
to award punitive damages was against the weight of the evidence,
and that the trial court therefore abused its discretion in denying
a new trial. "When reviewing a jury verdict under [jnov or new
trial] standards, this court necessarily considers hypothetical
explanations for the jury's determination. Otherwise, we would not
be able to review verdicts at all."[Fn. 6]
In order to recover punitive damages,
the plaintiff must prove that the wrongdoer's
conduct was outrageous, such as acts done with malice or bad
motives or a reckless indifference to the interests of another.
Actual malice need not be proved. Rather, [r]eckless indifference
to the rights of others, and conscious action in deliberate
disregard of them . . . may provide the necessary state of mind to
justify punitive damages. Punitive damages require proof by clear
and convincing evidence.[ [Fn. 7]]
Thus, although a plaintiff may have enough evidence to support the
underlying cause of action by a preponderance of the evidence, the
plaintiff is required to further establish outrageous conduct on
the part of the defendant by clear and convincing evidence before
punitive damages are justified.
The jury's decision to refrain from awarding punitive
damages even though it found knowing misrepresentation can be
explained on two grounds. First, with respect to the substantive
standard, even though the jury found that Progressive knowingly
misrepresented some facts, it may not have found the
misrepresentations sufficiently egregious to constitute outrageous
conduct. "Not all conduct which amounts to [an intentional tort]
is sufficiently outrageous to warrant an award of punitive
damages."[Fn. 8] Second, with respect to the burden of proof,
although the jury found by a preponderance of the evidence that
Progressive had engaged in knowing misrepresentation, the jury may
not have found that Nelson had established that the acts were
sufficiently outrageous by clear and convincing evidence.
We conclude therefore that the superior court did not
abuse its discretion in denying Nelson's motion for a new trial.
B. The Trial Court Did Not Abuse Its Discretion in
Precluding Robert Wainscott's Rebuttal Testimony.
Progressive's insurance expert George Broatch opined at
trial that Nelson had "set-up"Progressive for a bad faith lawsuit.
Nelson contends that he was surprised by this testimony and that
the trial court should have allowed him to rebut it with his own
expert witness, Robert Wainscott. [Fn. 9]
Nelson did not timely disclose his rebuttal witness,
however. The trial court had earlier ruled that each side must
provide one day's notice of the witnesses it intended to call. At
the end of the trial day on which Broatch testified, Progressive
notified Nelson that it would be resting, and requested that Nelson
identify any rebuttal witnesses. It was not until the next morning
that Nelson gave the court and Progressive notice that he intended
to call Robert Wainscott on that, the last trial day. When
Progressive objected, the trial court ruled that the notice was not
timely because it violated the one-day notice ruling and denied
Progressive the ability to prepare effectively for cross-
Nelson argues that the trial court abused its discretion
in strictly enforcing its one-day notice ruling. He contends that
he was surprised by Broatch's trial testimony because it conflicted
with Broatch's deposition, that Progressive had a duty to give
advance notice of Broatch's new testimony, and that these circum-
stances excused his failure to give timely notice of Wainscott's
rebuttal testimony. He also argues that Progressive would not have
been prejudiced by his failure to give timely notice, for the trial
could have been delayed to give Progressive ample time to prepare
for the cross-examination of Wainscott. [Fn. 10]
While Nelson's excuses for not giving timely notice and
argument that any prejudice to Progressive could easily have been
cured would certainly have justified permitting Wainscott to
testify, either immediately or after some delay, we are unable to
say that the court abused its discretion by precluding his
testimony. Decisions of this nature involve a complex balance of
interests and objectives. The trial court must evaluate matters
such as the effects of delay, the reasons offered for noncompliance
with time deadlines, the importance of the testimony sought to be
rebutted, the nature of the offered rebuttal, and the nature of the
claimed prejudice. This process is committed to the sound
discretion of the trial court. Only in rare cases where an
appellate court is "left with a definite and firm conviction"that
the trial court erred in striking the balance reflected by its
ruling is reversal warranted. [Fn. 11] This is not such a case.
C. The Trial Court Did Not Abuse Its Discretion by Allowing
Dr. Curran's Testimony.
Dr. Curran is a southern California physician who
provided Progressive with an expert medical opinion during the
claims settlement process, and testified as an expert witness for
Progressive at arbitration. At trial, Nelson presented Dr.
Curran's arbitration testimony as evidence of Progressive's bad
faith with respect to the edited videotape and the allegedly
fraudulent medical report. When Progressive called Dr. Curran to
testify that his opinion was only strengthened after viewing the
complete and unedited surveillance videotape, Nelson objected on
the ground that Dr. Curran was an expert witness, and that
Progressive had failed to list Dr. Curran on its expert witness
disclosures. The trial court ruled that Dr. Curran's testimony was
not expert testimony under Evidence Rule 702(a), and was not
subject to prior disclosure.
Nelson makes two arguments on appeal. First, Nelson
argues that Dr. Curran's trial testimony was irrelevant to the
issue of Progressive's bad faith. Second, Nelson argues that Dr.
Curran's trial testimony was expert testimony under Evidence Rule
702(a), and was thus subject to pretrial disclosure. [Fn. 12]
With respect to relevancy, Nelson sought to establish
that Progressive acted in bad faith by improperly influencing or
procuring an expert medical opinion through the use of a
strategically edited videotape. Nelson raised the issue by
introducing Dr. Curran's arbitration testimony in conjunction with
the edited videotape. The question of whether Progressive's
editing of the videotape would have influenced Dr. Curran's opinion
was at issue, and Dr. Curran's testimony was probative on that
issue. Dr. Curran's testimony was thus relevant.
The next question is whether Dr. Curran appeared as an
expert trial witness who was subject to the disclosure requirements
of Civil Rule 26(a)(2), or appeared as a fact witness. An expert
witness may be called when "scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue."[Fn. 13] An expert
witness is therefore defined as a witness whose testimony assists
the fact finder with an issue requiring scientific, technical, or
other specialized knowledge.
In this case, Dr. Curran's testimony was not probative on
an issue requiring specialized medical knowledge. Nelson's
position at trial was that Progressive acted in bad faith and
misrepresented the extent of Nelson's injuries by deliberately
withholding unfavorable footage so as to influence Dr. Curran's
medical opinion. Progressive sought to rebut that contention by
demonstrating that Dr. Curran's opinion would not have been
influenced by its videotape editing. However, we conclude that Dr.
Curran's trial testimony was not intended to assist the trier of
fact in understanding medical evidence relating to Nelson's injury.
Instead, Dr. Curran testified at trial as a fact witness, and
offered his opinion that his earlier expert opinion would not have
been different had Progressive supplied him with the unedited
The trial court did not abuse its discretion by refusing
to exclude Dr. Curran's opinion testimony as a witness. In this
case, Nelson raised the issue of whether Progressive's editing
would have influenced Dr. Curran's expert medical opinion. Dr.
Curran's opinion was based upon his review of both the edited and
unedited videotapes, and was helpful to a determination of the
improper editing issue. The trial court's decision to permit Dr.
Curran's testimony did not constitute an abuse of discretion. [Fn.
D. The Trial Court Properly Granted a Directed Verdict on
Nelson's Claim for Emotional Distress Damages.
The trial court granted Progressive's motion for a
directed verdict on the issue of emotional distress damages.
Although Nelson only pled the torts of bad faith and intentional
misrepresentation in his complaint, the trial court applied the
standard for the independent tort of intentional infliction of
emotional distress in directing a verdict in favor of Progressive.
The trial court held that plaintiffs claiming emotional distress
damages are required to make a threshold showing of "severe"
emotional distress. The trial court recognized that Nelson
experienced "frustration, anger, [and] grief,"but held that there
was no evidence of severe emotional distress to warrant emotional
On appeal, Nelson argues that emotional distress damages
may be recovered under other intentional tort theories even if a
threshold showing of severity is not made. [Fn. 15]
At the outset, we note that we are not reaching the issue
of whether emotional distress damages may be recovered under the
tort of bad faith. Because the jury did not find Progressive
liable for bad faith, the jury had no occasion to consider damages
for the tort, and any erroneous ruling with respect to damages for
bad faith would be harmless. [Fn. 16] The jury did find
Progressive liable for knowing misrepresentation, however, and the
trial court's ruling restricted the damage theories available for
this claim. Accordingly, our discussion is limited to the tort of
intentional misrepresentation, or fraud.
Black letter law indicates that emotional distress
damages are not recoverable for fraud. The Restatement limits
recovery for fraud to "pecuniary loss." Restatement (Second) of
Torts sec.sec. 525, 549 (1977). A leading treatise on remedies
recognizes that fraud may often be accompanied by emotional
distress, but states that emotional distress damages are generally
not recoverable in fraud actions:
Fraud, deceit and negligent misrepresentation
are economic torts. Although the invasion of an economic interest
by tort or contract breach will often cause the plaintiff personal
distress, the interest ordinarily protected in such cases is purely
an economic interest and does not include interests in personality.
Accordingly, the usual rule is that the plaintiff must show
pecuniary loss in misrepresentation cases and the damages are
limited to such pecuniary loss, with no recovery for emotional
distress.[ [Fn. 17]]
A wide divergence of authority nevertheless exists among
the courts on this issue. Of the jurisdictions specifically
addressing the issue and not allowing recovery, the usual rationale
is that fraud is an economic tort rather than a dignitary tort,
that fraud protects interests more akin to a contract claim than a
tort claim, and that emotional distress damages are thus
inappropriate. [Fn. 18]
On the other hand, some commentators have surveyed the
legal support for emotional distress damages and advocated policy
arguments for widespread acceptance by the courts. [Fn. 19] Many
jurisdictions have allowed plaintiffs to recover emotional distress
damages in fraud actions. [Fn. 20] These courts focus on the moral
culpability of the defendant, view fraud within the broader
framework of intentional torts, and regard fraud as protecting both
economic and dignitary interests. [Fn. 21]
Of the courts allowing recovery, many have adopted hybrid
approaches which allow recovery for emotional distress in fraud
actions under some circumstances. They impose additional require-
ments that the plaintiff must satisfy before recovery is allowed.
Examples include limiting recovery to severe emotional distress,
[Fn. 22] requiring that the tortious conduct be committed in a
wanton or malicious manner, [Fn. 23] requiring that bodily illness
or injury be highly foreseeable, [Fn. 24] and allowing emotional
distress damages as part of exemplary or punitive damages. [Fn. 25]
We believe that the best approach is to permit emotional
distress damages under a fraud theory only when such damages are
severe. It would be anomalous to relax the severity requirement in
economic torts where emotional distress is an unintended by-product
of the wrong, while maintaining it in intentional infliction of
emotional distress cases where such emotional distress is the only
element of damage. Imposing a threshold severity requirement is
thus consistent with our case law and the trial court did not err
in so ruling.
The next question, then, is whether the trial court
properly directed a verdict against Nelson because it found the
evidence did not rise to the level of "severe"emotional distress.
Nelson submitted some evidence of emotional distress at
trial. He testified that his dealings with Progressive made him
"aggravat[ed],""angry,""upset,"and "red in the face." Nelson
also testified that he felt as if he was being "leverage[d]"by
Progressive in its handling of his claim. Nelson's father
testified that Nelson was "emotionally different"after the
accident, was increasingly bothered that the claim was not settled,
and was exhibiting a great deal of anger and anguish over
Progressive's handling of his claim. Moreover, Nelson read aloud
letters that he had written to Progressive two years prior to trial
in which he had stated that Progressive's actions were causing him
"emotional distress and mental anguish."
Although Nelson presented sufficient evidence for
reasonable people to conclude that he suffered mental distress, we
agree with the trial court that no reasonable jury could make the
requisite finding of severity. The level of aggravation and
frustration testified to is not, in our judgment, arguably severe.
E. Any Error Committed by the Trial Court in Excluding
Parent and Co-Subsidiary Corporations as Defendants Was Harmless.
The trial court granted summary judgment in favor of
Progressive Preferred Insurance Company (PPIC), the corporation
issuing Nelson's insurance policy, on the issue of whether The
Progressive Corporation (TPC), the parent corporation of PPIC, and
"The Progressive Companies,"a non-entity and popular trade name
for the corporations in the Progressive family, were directly
liable to Nelson. The trial court denied Nelson's motion for
reconsideration as well. The trial court also denied Nelson's
motion for leave to amend his complaint on the eve of trial so as
to add TPC and Progressive Casualty Insurance Company (PCIC), the
subsidiary of TPC responsible for adjusting claims, as defendants
under newly-articulated alter-ego, instrumentality, or piercing-
the-corporate-veil theories. On appeal, Nelson argues that the
superior court erroneously dismissed TPC as a defendant at summary
judgment, and erroneously denied Nelson's motion to amend his
complaint to add TPC and PCIC as defendants.
Even assuming that the trial court may have erred on this
related issue, any error would be harmless under Civil Rule 61. It
is difficult to discern any effect that the presence of TPC and
PCIC would have had on the issues of liability, the amount of
compensatory damages, or liability for punitive damages. Nelson
would have presented the same evidence and tried the same claims at
trial, but with three Progressive defendants instead of one.
Nelson's attempts to include the parent and a co-subsidiary of PPIC
were perhaps efforts to portray the wealth available to the
defendant in higher figures and thus possibly increase the amount
of any punitive damages award. [Fn. 26] But the jury did not find
outrageous conduct warranting punitive damages. Accordingly it did
not have cause to consider the size of any punitive damages award.
The trial court's ruling on this issue therefore was harmless as it
did not "affect the substantial rights"of Nelson. [Fn. 27]
The judgment entered below is AFFIRMED. [Fn. 28]
The decision to grant or deny a new trial
is within the trial court's discretion. If there is an evidentiary
basis for the jury's decision, the denial of a new trial must be
affirmed. However, if the evidence supporting the verdict was
completely lacking or so slight and unconvincing as to make the
verdict plainly unreasonable and unjust, we must reverse the denial
of the motion for a new trial. In reviewing such denials, we must
view the evidence in the light most favorable to the non-moving
Hayes v. Xerox Corp., 718 P.2d 929, 933 (Alaska 1986).
459 P.2d 475 (Alaska 1969).
See id. at 480.
See, e.g., Zok v. State, 903 P.2d 574, 576-77 (Alaska 1995);
Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994); Grow v.
Ruggles, 860 P.2d 1225, 1226-27 (Alaska 1993); Buoy v. ERA
Helicopters, Inc., 771 P.2d 439, 442 n.1 (Alaska 1989); State v.
Haley, 687 P.2d 305, 321 (Alaska 1984); City of Fairbanks v. Smith,
525 P.2d 1095, 1097-98 (Alaska 1974); Nordin Constr. Co. v. City of
Nome, 489 P.2d 455, 472 (Alaska 1971).
Diamond v. Wagstaff, 873 P.2d 1286, 1290 (Alaska 1994).
Cummings v. Sea Lion Corp., 924 P.2d 1011, 1022 (Alaska 1996)
(quoting Barber v. National Bank, 815 P.2d 857, 864 (Alaska 1991)
(citations omitted) (alteration and omission in original).
State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264, 1266
We review the trial court's rulings on the admissibility of
evidence, including the testimony of expert witnesses, for an abuse
of discretion. See, e.g., Cummings v. Sea Lion Corp., 924 P.2d
1011, 1018 (Alaska 1996); Spenard Action Comm. v. Lot 3, Block 3,
Evergreen Subdivision, 902 P.2d 766, 780-81 (Alaska 1995).
Nelson expressed his willingness for the court to postpone the
trial for at least a half day to enable Progressive to prepare for
Harris v. Keys, 948 P.2d 460, 466 (Alaska 1997).
This court reviews the trial court's rulings on the
admissibility of evidence for an abuse of discretion. See id. n.3.
Alaska R. Evid. 702(a); see also Spenard Action Comm., 902
P.2d at 780-81.
See Miller v. Phillips, 959 P.2d 1247, 1249-51 (Alaska 1998).
The appropriate standard for recovery of emotional distress
damages involves a question of law which this court reviews de
novo. See Jones v. Jones, 942 P.2d 1133, 1135-36 (Alaska 1997).
We adopt the rule of law that is most persuasive in light of
precedent, reason, and policy. See id.
In reviewing motions for a directed verdict, this court
views the evidence "in the light most favorable to the non-moving
party"and determines whether "reasonable minds could not differ in
their judgment." Chizmar v. Mackie, 896 P.2d 196, 200 (Alaska
1995) (quoting City of Whittier v. Whittier Fuel & Marine Corp.,
577 P.2d 216, 220 (Alaska 1978) (internal citations omitted)).
This court does not "weigh conflicting evidence or judge the
credibility of witnesses if there is room for diversity of opinion
among reasonable people, the question is one for the jury." Id.
See Baker v. Werner, 654 P.2d 263, 267 n.6 (Alaska 1982).
Dan B. Dobbs, Law of Remedies sec. 9.2(4), at 559-60 (2d ed.
See Cornell v. Wunschel, 408 N.W.2d 369, 382 (Iowa 1987). See
also Jourdain v. Dineen, 527 A.2d 1304, 1307 (Maine 1987); Turner
v. General Adjustment Bureau, Inc., 832 P.2d 62, 67-69 (Utah App.
1992) cert. denied sub nom. Turner v. Norton, 843 P.2d 1042 (Utah
1992). See generally Steven J. Gaynor, Annotation, Fraud Actions:
Right to Recover for Mental or Emotional Distress, 11 A.L.R. 5th
88, 113-17 (1993).
See Andrew L. Merritt, Damages for Emotional Distress in Fraud
Litigation: Dignitary Torts in a Commercial Society, 42 Vand. L.
Rev. 1 (1989) (hereinafter Merritt, Damages for Emotional
See, e.g., Kilduff v. Adams, Inc., 593 A.2d 478, 484-85 (Conn.
1991); Nord v. Shoreline Sav. Ass'n, 805 P.2d 800, 803-05 (Wash.
1991). See generally Annotation, 11 A.L.R. 5th at 103-13.
See Merritt, Damages for Emotional Distress supra, at 6.
See, e.g., McGregor v. Mommer, 714 P.2d 536, 545 (Mont. 1986);
Roberts v. U.S. Home Corp., 694 S.W.2d 129, 136 (Tex. App. 1985).
See, e.g., Umphrey v. Sprinkel, 682 P.2d 1247, 1259 (Idaho
1983); Crowley v. Global Realty, Inc., 474 A.2d 1056, 1058 (N.H.
See, e.g., Kilduff, 593 A.2d at 485.
E.g., Kewin v. Massachusetts Mut. Life Ins. Co., 295 N.W.2d
50, 55 (Mich. 1980). See generally Merritt, Damages for Emotional
Distress supra, at 7-15; Annotation, 11 A.L.R. 5th at 103-13.
See, e.g., Lundquist v. Lundquist, 923 P.2d 42, 50 n.8 (Alaska
1996) (among other factors, this court looks to the wealth of the
defendant in determining whether a punitive damages award is
See Alaska R. Civ. P. 61.
Although Nelson argued in his briefs that the trial court
erroneously awarded attorney's fees to Progressive under Civil Rule
82, we have no cause to address that argument here because Nelson
subsequently withdrew the issue after oral argument. Nor do we
address Progressive's cross-appeal since it was contingent on our
remanding for a new trial.