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Long v Holland America Line Westours (07/13/2001) sp-5430
Long v Holland America Line Westours (07/13/2001) sp-5430
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
DORICE LONG, )
) Supreme Court No. S-8726
Appellant, )
) Superior Court No.
v. ) 2KB-95-100 CI
)
HOLLAND AMERICA LINE )
WESTOURS, INC., a Washington ) O P I N I O N
Corporation, )
) [No. 5430 - July 13, 2001]
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Kotzebue,
Michael I. Jeffery, Judge.
Appearances: Thomas L. Melaney, Anchorage,
for Appellant. Robert P. Blasco, Robertson, Monagle & Eastaugh,
Juneau, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
EASTAUGH, Justice, with whom FABE, Justice,
joins, dissenting.
I. INTRODUCTION
Dorice Long sued for personal injuries she sustained
during a Holland America tour in Alaska. She filed the suit well
within the time limits of Alaska's tort statute of limitations but
beyond the limit specified by a clause in her tour contract.
Honoring the contract's choice of Washington law, the superior
court upheld the limitations clause and dismissed Long's suit as
untimely. We reverse. Because this case raises fundamental policy
issues that are materially more interesting to Alaska than
Washington, Alaska law applies. Under our law, the limitations
clause was unenforceable without a showing of prejudice.
II. FACTS AND PROCEEDINGS
In the spring of 1994 Dorice Long, a Florida resident,
booked a tour of Alaska with Holland America Line Westours, Inc.,
(Holland America) through a Florida travel agent. The tour,
scheduled to begin on June 1, 1994, included eleven days of land
touring before Long was to board a Holland America vessel for a
cruise down the Inside Passage in Southeast Alaska. Long received
her tickets and other tour information a few days before her
scheduled departure. The packet of information included the tour
contract. The tour contract contained a choice of law provision
stating that, except when maritime law applied, the contract would
be construed according to Washington state law.
While touring in Kotzebue on June 10, Long fell and
sustained serious injuries outside a museum operated by NANA
Regional Corporation, Inc. Long was transported to Anchorage for
treatment of her injuries.
Long's attorney notified Holland America in writing of a
possible claim by Long against Holland America ten and one-half
months after her injury. Sixteen months after her injury, Long
filed a complaint against Holland America and NANA Regional
Corporation, Inc., alleging negligence on the part of both
defendants.
Holland America moved for summary judgment, arguing that
the terms of the tour contract barred Long's claims. It noted that
the tour contract set a specific limitations period, barring all
claims for personal injury unless the claimant provided notice to
Holland America within six months of the alleged injury and filed
suit within one year after the trip was completed. Because Long
had not complied with these terms, Holland America requested that
the court dismiss Long's claims.
The superior court agreed with Holland America and
granted summary judgment, dismissing all of Long's claims against
Holland America. [Fn. 1] Long appeals.
III. DISCUSSION
A. Standard of Review
This court reviews appeals from summary judgment de novo.
[Fn. 2] Summary judgment will be affirmed if there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. [Fn. 3] Here, Long does not dispute
any material facts, but challenges the superior court's ruling as
a matter of law.
B. The Contractual Limitations Provision Is Not Enforceable.
Long asserts that the trial court erred when it held that
the contract's limitations provision is governed by Washington law
and is enforceable in Alaska. Long argues that Alaska's interest
in having uniform statute of limitation periods is greater than
Washington's interest in enforcing contractual provisions in Alaska
and that the limitation provision of the contract is unenforceable
under Alaska law. Holland America responds that the choice-of-law
provision in the contract is enforceable and that Washington law
would uphold the limitations provision. We agree with Long's
conclusion.
1. Alaska law is applicable.
The first issue is whether the trial court correctly
applied Washington law, as specified by the contract's choice-of-
law provision. When deciding choice of law issues, we have in the
past turned to the Restatement (Second) of Conflict of Laws
(Restatement) for guidance. [Fn. 4] Where, as here, the parties'
contract includes a choice-of-law provision, Restatement sec. 187
applies. Section 187 provides, in relevant part:
(1) The law of the state chosen by the
parties to govern their contractual rights and duties
will be applied if the particular issue is one which the
parties could have resolved by an explicit provision in
their agreement directed to that issue.
(2) The law of the state chosen by the
parties to govern their contractual rights and duties
will be applied, even if the particular issue is one
which the parties could not have resolved by an explicit
provision in their agreement directed to that issue,
unless either
(a) the chosen state has no substantial
relationship to the parties or the transaction
and there is no other reasonable basis for the
parties' choice, or
(b) application of the law of the chosen
state would be contrary to a fundamental
policy of a state which has a materially
greater interest than the chosen state in the
determination of the particular issue and
which, under the rule of sec. 188, would be
the state of the applicable law in the absence
of an effective choice of law by the parties.[[Fn. 5]]
The point in dispute here concerns the validity of the
contractual limitations provision. Since parties cannot determine
contractual validity by explicit agreement, [Fn. 6] the superior
court was correct in determining that subsection (1) does not
apply; neither party contests this decision.
Similarly, subsection (2)(a) does not affect the analysis
here. The superior court correctly concluded that Holland America
had a substantial relationship with the state of Washington because
it was headquartered there and that was the location from which the
contract was issued. [Fn. 7] Long does not dispute this.
Therefore, under Restatement sec. 187(2)(b) we should
apply
Alaska law only if three conditions are met: (1) Alaska's law would
apply under Restatement sec. 188 in the absence of an effective
choice
of law; (2) Alaska has a materially greater interest in the issue;
and (3) the application of Washington law would offend a
fundamental policy of Alaska. Here, all three conditions are met.
The first condition is that Alaska's law would apply in
the absence of an effective choice of law. It would. Under
Restatement sec. 188, and in the absence of an effective choice of
law
by the parties, we must apply the principles of Restatement sec. 6
to
determine which state has the most significant relationship. [Fn.
8] In doing so, we must consider the relevant policies of Alaska
and Washington, giving special deliberation to the following:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance, [and]
. . . .
(e) the domicil, residence, nationality,
place of incorporation and place of business of the parties.[ [Fn.
9]]
The place of performance has "so close a relationship to
the transaction and the parties that it will often be the state of
the applicable laws"; [Fn. 10] in this case, the place of
performance is Alaska. The place of negotiation has little impact
where, as here, the parties conduct negotiations from separate
states by mail and telephone. [Fn. 11] Similarly, the place of
contract has little impact on the events at hand. Subsection (e),
however, carries greater weight than either subsection (a) or (b).
Nonetheless, we feel that the parties' domicile, residence, place
of incorporation, or place of business, as listed in subsection
(e), deserves less consideration than the place of contract
performance. [Fn. 12]
Because statutes of limitations are procedural, Alaska
law, as law of the forum, governs in the absence of an effective
choice of law. [Fn. 13] Additionally, there is a presumption that
the "law of the state where the [personal] injury occurred"governs
in the absence of an effective choice of law. [Fn. 14]
The second requirement is that Alaska have a materially
greater interest in the issue than Washington. Alaska has three
interests that are materially greater than Washington's:
(1) establishing uniform filing deadlines; (2) ensuring that fair
compensation is available for personal injuries occurring in
Alaska; and (3) deterring negligent future conduct in the state.
Alaska has an undeniably strong interest in establishing
uniform filing deadlines. [Fn. 15] Uniform deadlines promote
predictability for plaintiffs, defendants, and other interested
parties alike. [Fn. 16] Equally strong is Alaska's interest in
providing victims of negligence who sustain personal injuries
within the state access to a legal system that affords them a fair
opportunity to seek redress from the negligent party. [Fn. 17] So
too is Alaska's interest in promoting public safety by deterring
future negligent conduct within the state. [Fn. 18] In contrast,
the State of Washington's only interest in the issue at hand is in
protecting resident corporations' contract rights relating to torts
that they commit in other states. While this interest is certainly
not insubstantial, we find it decidedly weaker than Alaska's
interests. We hold, then, that Alaska's interests are materially
greater than Washington's. [Fn. 19]
The choice of law in this case thus turns on whether the
third condition of Restatement sec. 187(2)(b) is met -- whether
enforcing Washington law would offend a fundamental policy of the
State of Alaska. In our view, enforcing Washington law would
offend the fundamental policies underlying the three Alaska
interests that we have just identified as being materially greater
than Washington's interest in the issue at hand -- enforcing
uniform standards for commencing litigation in Alaska's courts,
ensuring Alaska personal injury victims reasonable access to the
Alaska legal system, and promoting public safety.
Uniform application of our statutes of limitations
involves fundamental policy concerns. [Fn. 20] Statutes of
limitations serve dual policies: to protect against prejudice from
stale claims [Fn. 21] and to ensure an adequate opportunity for
filing a claim prior to the statutory bar. [Fn. 22] For cases
involving personal injury, the legislature struck a balance between
these competing policies by adopting a two-year statute of
limitations. [Fn. 23] Since contract provisions altering this
statutory period necessarily run the risk of unbalancing the
legislature's carefully measured policy choice, upholding such
provisions through an uncritical application of another state's
contract law would violate public policy. [Fn. 24]
In analogous settings, we have recognized the need to
preserve the policy balance of our time bar statutes against
unlimited contractual revision. For example, in Johnson v. City of
Fairbanks we invalidated a municipal ordinance that established a
four month notice-of-claim requirement for tort suits, holding that
it violated the "statewide legislative policy"of providing uniform
limitation periods. [Fn. 25] And in Alaska Energy Authority v.
Fairmont Insurance Co., we held that a filing limit imposed in an
insurance policy was unenforceable absent an affirmative showing of
prejudice to the insurer. [Fn. 26] The reasoning of these cases
encompasses the present circumstances. [Fn. 27]
Different, but similarly fundamental, policies underlie
Alaska's laws governing compensation for personal injury. Our tort
system serves multiple purposes. It strives to ensure fair
compensation for victims of negligently inflicted harm. [Fn. 28]
It seeks to treat all responsible parties fairly by allocating
damages in proportion to each party's fault. [Fn. 29] And more
generally, it promotes the safety and welfare of all Alaskans by
deterring negligent conduct and minimizing social costs of
negligence such as unpaid medical expenses, lost wages, and
diminished productivity. [Fn. 30] Hence, a contractual provision
that alters the effect of the tort statute of limitations between
contracting parties presents a matter of fundamental concern.
Moreover, such a provision may have significant and far-reaching
impacts beyond its effect on the rights and interests of
contracting parties. To the extent that Washington contract law
would routinely allow contracting parties to alter their own rights
and interests and the rights and interests of non-contracting
parties in matters concerning compensation for personal injuries
that occur in Alaska, enforcing that law would subvert the basic
purpose of Alaska's system of negligence laws. [Fn. 31]
For example, in adopting a comprehensive regime of
comparative negligence as part of Alaska's 1997 tort reform
legislation, the Alaska Legislature explained that
it is the intent of this legislature as a
matter of public policy to
. . . .
(9) ensure that in actions involving the
fault of more than one person, the fault of
each claimant, defendant, . . . or other person
responsible for the damages and available as a litigant
be determined and awards be allocated in accordance with
the fault of each.[ [Fn. 32]]
As this statement exemplifies, Alaska's standard of pure
comparative negligence embodies a fundamental public policy choice
made by the legislature. [Fn. 33] A rule that mechanistically
upheld all contract provisions shortening the tort statute of
limitations would offend this policy by subjecting various claims
arising from the same negligent act, and various involved parties,
to differing time limits.
For these reasons, we conclude that contractual
provisions like the one at issue here involve matters of
fundamental policy that demand scrutiny under Alaska law.
2. The contractual limitations period is not
enforceable in Alaska.
The next issue, then, is whether the tour contract's
contractual limitations clause is enforceable under Alaska law. In
our view, public policy bars enforcement of the clause at issue
here because Holland America has failed to allege or show that
enforcement of the clause is necessary to avoid prejudice.
As already mentioned, this court has addressed clauses
setting time limits on the commencement of suit in the context of
insurance policies. In those cases, we noted that the purpose of
such clauses is "to avoid prejudice, specifically, to avoid the
extra danger of fraud and mistake associated with stale claims."
[Fn. 34] But we also observed that it would be inequitable to
enforce these clauses unless prejudice could be demonstrated. [Fn.
35] Because the relative bargaining powers of the contracting
parties disproportionately favored the insurers, we reasoned that
contractual limitations clauses should only be enforced to
"advance[] the purpose for which they were included in the policy."
[Fn. 36]
In our view, the rationale that we adopted in these
insurance cases applies with equal force in the present contractual
setting. It is undisputed that Holland America possessed
disproportionate bargaining power in setting the terms of the tour
contract. [Fn. 37] Long could not have negotiated for different
terms. Furthermore, the purpose of the shortened limitation clause
is identical to the purpose of the clauses at issue in our
insurance cases -- to avoid the prejudice of stale claims.
Here, Holland America neither showed nor alleged any
prejudice. In fact, Holland America had immediate notice of Long's
injury. Long's attorney gave the company formal notice of her
claim within eleven months of the injury and filed suit well before
the usual two-year statute of limitations expired. Given the lack
of prejudice, enforcement of the truncated limitations period would
amount to little more than a windfall for Holland America.
Moreover, the record establishes that Holland America
imposed the disputed clause in an unusually one-sided manner. Even
under industry-friendly standards that federal courts have
developed for tour contract cases falling within their
jurisdiction, contract provisions dictating choice of law or
shortening deadlines for filing will not be enforced unless the
tour company makes a reasonable effort to warn passengers of the
restrictions. [Fn. 38] This "reasonable communicativeness"test
entails a two-pronged analysis that delves, first, into the facial
clarity of the ticket contract and, second, into the circumstances
surrounding the individual passenger's possession and familiarity
with the ticket. [Fn. 39]
Under this test, the court determines enforceability on
a case-by-case basis: "Differing circumstances may render the same
ticket binding on one passenger in one case, yet invalid as against
another passenger in another case."[Fn. 40] Hence, a case is
always subject to circumstantial scrutiny for signs of unfairness,
overreaching, or fraud. [Fn. 41]
Looking beyond the face of the tour vouchers in the
present case, there are indications of contractual overreaching by
Holland America. [Fn. 42] The record establishes that Holland
America and its agents made no effort to inform Long of the
contractual limitation until the company sent Long her tour
vouchers. She received the vouchers just days before she was
scheduled to embark on her journey, and after she had already paid
for the tour. Yet the terms of Long's tour contract --
conspicuously printed in the vouchers -- expressly stated that it
was too late for her to cancel the tour and ask for a full refund,
"regardless of the reason for cancellation."[Fn. 43] Thus, if
Long found the newly announced contractual language unacceptable,
she could reasonably have believed that she had no recourse -- that
the contract left her no realistic choice but to travel on Holland
America's unilaterally dictated, last-minute terms. [Fn. 44]
Addressing an almost identical situation presented to the
United States Supreme Court in Carnival Cruise Lines v. Shute,
Justice Stevens persuasively reasoned that a tour company's last-
minute disclosure of a choice-of-forum clause rendered the clause
fundamentally unfair:
Of course, many passengers, like the
respondents in this case, . . . will not have an
opportunity to read paragraph 8 [the disputed clause]
until they have actually purchased their tickets. By
this point, the passengers will already have accepted the
condition set forth in paragraph 16(a), which provides
that "[t]he Carrier shall not be liable to make any
refund to passengers in respect of . . . tickets wholly
or partly not used by a passenger." Not knowing whether
or not that provision is legally enforceable, I assume
that the average passenger would accept the risk of
having to file suit in Florida in the event of an injury,
rather than canceling -- without a refund -- a planned
vacation at the last minute. The fact that the cruise
line can reduce its litigation costs, and therefore its
liability insurance premiums, by forcing this choice on
its passengers does not, in my opinion, suffice to render
the provision reasonable.[ [Fn. 45]]
Given that Holland America confronted Long with a similar
last-minute disclosure -- a fact that Holland America attempts to
sidestep but has never denied -- the record establishes that the
company breached its duty to treat Long fairly, thereby vitiating
the tour contract's filing deadline.
IV. CONCLUSION
Because the record fails to establish prejudice to
Holland America, we hold that it was error to grant summary
judgment by enforcing the contractual limitations clause. [Fn. 46]
We therefore REVERSE the superior court's judgment dismissing
Long's complaint against Holland America.
EASTAUGH, Justice, with whom FABE, Justice, joins, dissenting.
A. Introduction
Restatement (Second) of Conflict of Laws sec. 187(2)(b)
(1971), correctly applied, requires us to apply Washington law in
deciding whether the one-year claims time limit specified in the
parties' written tour contract is enforceable. [Fn. 1] Because the
time limit is enforceable under Washington law, [Fn. 2] the law the
parties chose, we should enforce it. Enforcing it would offend no
fundamental policy of Alaska, and certainly not the sole purpose of
Alaska's statutes of limitations: avoidance of stale claims. The
one-year time limit was legally and factually reasonable. Alaska's
interests do not outweigh either the interest of the contracting
parties in having their permissible bargain enforced or the
interest of Washington in having its law applied when its
domiciliary corporations enter into written contracts choosing
Washington law. The court's opinion identifies and relies on
several Alaska policies and interests. To the extent they actually
exist, those policies and interests would not be prejudiced by
enforcing the contract. And because this is a tour contract, not
an insurance policy, the claim time limit is enforceable as
written, even under Alaska law, without requiring Holland America
to show prejudice. I therefore respectfully dissent.
B. How the Court's Opinion Resolves the Case
The core of my disagreement with the court's opinion lies
in the Alaska policies and interests that it identifies and relies
on to resolve the choice-of-law issue. It first identifies three
Alaska interests: (1) enforcing uniform standards for commencing
litigation in Alaska's courts; (2) ensuring Alaska personal injury
victims reasonable access to the Alaska legal system; and (3)
promoting public safety. [Fn. 3] It reasons that these three
interests are "materially greater"than Washington's, satisfying
the second requirement of Restatement sec. 187(2)(b). [Fn. 4] It
then
reasons that sec. 187(2)(b)'s third requirement is satisfied
because
enforcing Washington law "would offend the fundamental policies
underlying"these same three interests. [Fn. 5] It asserts that
"[u]niform application of our statutes of limitations involves
fundamental policy concerns."[Fn. 6] It also asserts that
statutes of limitations serve the "dual policies"of (1) protecting
"against prejudice from stale claims"; and (2) ensuring "an
adequate opportunity for filing a claim prior to the statutory
bar."[Fn. 7] Having already concluded that the first requirement
of sec. 187(2)(b) -- Alaska law would apply absent an effective
choice -- was met, [Fn. 8] the opinion holds that the parties'
choice of
law is ineffective as to the issue of the enforceability of the
time limit.
Applying Alaska law, the court's opinion then concludes
that because Holland America had "disproportionate bargaining
power,"the time limit is not enforceable as written. [Fn. 9] It
further reasons that enforcement would be unfair because Holland
America "overreached."[Fn. 10] It nonetheless does not preclude
Holland America from attempting on remand to enforce the filing
deadline by showing that it was prejudiced by Long's delay in
bringing suit. [Fn. 11]
C. Why the Court's Opinion Reaches the Wrong Result
1. Policies and interests
I think that the court's opinion foundationally errs in
describing Alaska's interests and its "fundamental"policies.
a. Purpose of the statutes of limitations
These errors originate in misconceptions about the
purpose of statutes of limitations. The court's opinion asserts
that statutes of limitations, in addition to avoiding stale claims,
serve a second "fundamental"policy: "ensur[ing] an adequate
opportunity for filing a claim prior to the statutory bar."[Fn.
12]
I disagree with that proposition because I think that the
relevant statute of limitations has no purpose of ensuring an
adequate time for filing suit. No doubt the legislature set
statutory deadlines that it thought would give claimants an
adequate opportunity to investigate possible claims and file suit.
But a conclusion that two years is adequate is not the same as a
conclusion that anything less is inadequate. Adopting a maximum
time differs from guaranteeing a minimum time. Statutes of
limitations have the purpose of preventing stale claims. [Fn. 13]
This purpose serves public interests, [Fn. 14] even though these
deadlines inevitably benefit defendants at the expense of
plaintiffs. This purpose does not guarantee an unalterable minimum
time for suit. It does not explicitly or implicitly address the
parties' ability to agree to a reduced period. And no other
purposes recognized by us or commentators guarantee some minimum
time for filing a personal injury lawsuit. [Fn. 15]
In support of the "ensuring"proposition, the court's
opinion cites Johnson v. City of Fairbanks, where we invalidated a
city charter provision that imposed a 120-day notice-of-claim
requirement as a precondition for tort suits against the city. [Fn.
16] We reasoned that the notice requirement violated the
"statewide legislative policy"of providing a uniform limitations
periods for victims of tortious conduct. [Fn. 17]
Johnson is unpersuasive authority for the proposition
that parties violate public policy by entering into a written
contract requiring suit within one year of injury. Johnson did not
involve contracting parties. It concerned a city's authority to
unilaterally impose requirements on persons asserting tort claims
against it. [Fn. 18] Those requirements denied those claimants a
remedy in the state courts unless the claimants first did things
the state did not require them to do to commence suit. [Fn. 19]
Requiring claimants to give the city a written pre-suit notice of
claim was itself alien to the state's scheme for beginning
litigation. And the notice deadline, 120 days, was unreasonably
short by any standard. Johnson establishes that the state's
political subdivisions cannot unilaterally alter the legislative
and judicial norms and rules which govern interactions between
themselves and individuals to whom they owe a duty of care. I do
not read it as holding that the statutes of limitations set a
minimum time for filing suit that cannot be reduced by agreement.
And such a holding would represent a marked departure from what
commentators say and what this court has said about the purpose of
the statutes of limitations. [Fn. 20]
Establishing the existence of a "fundamental policy"
requires much more. The commentary to Restatement sec. 187 states
that "a fundamental policy may be embodied in a statute which makes
one or more kinds of contracts illegal or which is designed to
protect a person against the oppressive use of superior bargaining
power."[Fn. 21] The Maryland statute at issue in General
Insurance Co. of America v. Interstate Service Co. [Fn. 22]
provides an example. It expressly stated that contractual time
limitations provisions in insurance contracts were "'against State
public policy, illegal and void . . . .'"[Fn. 23] But our
statutes contain no comparable general prohibition, and AS
09.10.070 does not prohibit parties from contracting for a shorter
limitations period. Johnson is far too tangential to be a basis
for divining a "fundamental"Alaska policy that would have the
effect of reading the statutes of limitations as guaranteeing a
minimum time for suit.
Moreover, our general legal principles do not support a
conclusion that Alaska policy would be offended by enforcing a
contractual limitations provision. We have approvingly quoted
Professor Corbin's observation that "it is not against the public
interest [for parties to] agree upon a shorter time limit than that
fixed by statute if the time agreed upon is not so short as to be
unreasonable."[Fn. 24] We quoted Professor Corbin at length on
this topic:
Although the parties can not at the time of
contracting effectively bargain not to plead the statute or that
the time for suit shall be longer than that allowed by statute, it
is not against the public interest that they shall then agree upon
a shorter time limit than that fixed by statute if the time agreed
upon is not so short as to be unreasonable in the light of the
provisions of the contract and the circumstances of its performance
and enforcement. Such time limits in insurance policies have often
been held valid. These agreements are not at all inconsistent with
the purposes underlying the statute of limitations. Those purposes
are to prevent the bringing and enforcement of stale claims,
involving extra danger of fraud and mistake, unless the debtor has
expressed a voluntary assent within the statutory period. An
express provision fixing a shorter limit merely hastens the
enforcement; and it is not made invalid by being included from the
beginning in the contract to be enforced. If held invalid, it must
be on the ground that the terms are unconscionable and that unfair
advantage has been taken of a claimant whose bargaining position
was inferior.[ [Fn. 25]]
This passage is important for at least two reasons.
First, it discusses the avoidance-of-stale-claims purpose and says
nothing of any possible fundamental legislative policy of setting
a minimum time for suit. Because the dispute in Fireman's Fund
concerned an insurer's attempt to reduce the claim period by
contract, [Fn. 26] one would expect that we would have recognized
the existence of a fundamental policy ensuring a minimum time for
suit in that case if we had thought that such a policy existed.
Second, this passage recognizes that enlarging, but not
reducing, the statutory period may offend the only recognized
statutory purpose. [Fn. 27]
To support the existence of the fundamental policy it
perceives, the court's opinion also relies on an alleged
legislative policy choice. [Fn. 28] The court reasons that
contract terms altering the statutory period "necessarily run the
risk of unbalancing the legislature's carefully measured policy
choice,"and asserts that upholding such terms "through an
uncritical application of another state's contract law would
violate public policy."[Fn. 29] This perception of a "carefully
measured policy choice"seems to rest on the opinion's erroneous
assumption, discussed above, that Alaska's statutes of limitations
set minimum times for bringing suit.
Further, the balance the legislature actually struck
bears little resemblance to the balance the court's opinion
perceives. Our statutes contain several provisions which can
enlarge the time for suit by delaying the running of an applicable
limitations period for specific reasons. [Fn. 30] None of those
reasons applies here. It is significant that the legislature has
not prohibited parties from contracting to reduce the applicable
statutory limitations period. [Fn. 31] If the legislature had
believed that contractual terms would pose a threat to the balance
it struck, one would assume that it would have prohibited any
contracted-for reduction.
Nor do our cases evidence a carefully balanced
legislative scheme that forbids such a deviation. So far as I
know, this court has not previously mentioned a notion that the
statutes of limitations reflect a balanced legislative scheme that
sets both maximum and minimum times for suit. And in addressing
limitations issues, we have adopted various legal principles as
part of Alaska's common law without bothering to discuss their
potential for unbalancing any possible "carefully measured"
legislative policy choices. [Fn. 32]
Further, allowing contracting parties to agree to a
shorter limitations period does not conflict with the purpose
underlying statutes of limitations, encouraging promptness in the
prosecution of actions to avoid the injustice which may result from
the prosecution of stale claims. [Fn. 33] "An express provision
fixing a shorter limit merely hastens the enforcement."[Fn. 34]
b. Uniform standards for commencing litigation
The court's opinion also asserts that "Alaska has an
undeniably strong interest in establishing uniform filing
deadlines. Uniform deadlines promote predictability for
plaintiffs, defendants, and other interested parties alike."[Fn.
35]
I think that any Alaska policy favoring a uniform
standard for commencing suit is not so "fundamental"that it
overrides the parties' contractual choice. Common law [Fn. 36] and
statutory exceptions [Fn. 37] abound in Alaska. Although these
exceptions relax statutory limitations periods, they demonstrate
that there is no "uniform"standard. Circumstances in each case
can affect the time for beginning suit. [Fn. 38] Shifting
decisional law has also contributed to the uncertainty about what
limitations period governs, [Fn. 39] and about when the applicable
statute begins to run. [Fn. 40] No greater uncertainty arises when
contracting parties agree to reduce the time for suit to a specific
period.
But assuming Alaska actually has a "strong"interest in
establishing uniform filing deadlines, it would be satisfied by
consistently applying the statutory limitations periods to like
classes of claims absent an agreement by the parties to be bound by
a different limitations period. [Fn. 41]
c. Predictability
It is irrelevant that uniform deadlines may promote
predictability. Predictability is a byproduct of statutory
deadlines, not a purpose. Moreover, predictability does not weigh
against contractual deviation. By agreeing to particular terms,
contracting parties adopt their own predictable limits. Consider
a tour contract between an out-of-state tour operator and an out-
of-state tourist. The parties' access to the terms of their
written contract in the event of injury is superior to their access
to the subtleties of the statutory and case law of the state where
the injury occurs. The contract thus enhances predictability. Nor
would it appear that Alaska institutionally has any interest in
being able to predict when a suit must be filed so long as those
most interested have contracted for terms known or readily knowable
to themselves. Nothing said in the cases the court cites to
demonstrate this interest's existence intimates that it outweighs
the interests of contracting parties in changing those deadlines.
Nor does enforcing the claim deadline defeat party
expectations. There is no reason to think that a Florida resident
touring Alaska has any pre-contract or pre-injury expectations
about how much time Alaska's statutes and case law would give her
to file suit in the event of injury. And after injury, one would
expect a Florida resident to read her tour contract even before
researching Alaska (and Washington) statutory and decisional law.
d. Access to fair opportunity to seek redress
The court also relies on Alaska's interest in "ensuring
that fair compensation is available for personal injuries occurring
in Alaska."[Fn. 42] It asserts that Alaska has an interest in
providing negligence victims "access to a legal system that affords
them a fair opportunity to seek redress from the negligent party."
[Fn. 43]
I agree that Alaska has those interests. [Fn. 44] But
they are irrelevant to the narrow choice-of-law issue presented
here. The contract did not prohibit Long from asserting a tort
claim against Holland America. It did not limit the damages she
could seek. Because the one-year claim period is not legally
inadequate, it does not limit fair compensation or access to the
courts. Compare a complete waiver of any cause of action, or
contract terms that would prevent third persons from obtaining any
compensation from one of the contracting parties. Alaska's
interest does not outweigh an interest in allowing parties to
contract in ways that affect the procedure for asserting a tort
claim without depriving a claimant of a fair opportunity to be made
whole. And it does not outweigh Washington's interest.
The court's opinion may imply that there is an enhanced
public interest in giving personal injury claimants the full
statutory period in which to sue. But that interest is not
offended if they agree by contract to a shorter, but still
reasonable, deadline. Nothing about personal injury claims alters
this conclusion. Indeed, personal injury and other personal
interest plaintiffs are disfavored with the shortest limitations
periods in Alaska. [Fn. 45] That the period for commencing
contract suits is longer than the period for commencing personal
injury suits suggests that no fundamental policy recognized by the
legislature favors personal injury plaintiffs. And notably the
court's opinion does not discuss whether the one-year claims time
limit afforded Long a "fair opportunity"to seek redress for her
injuries.
e. Deterring negligent conduct
The third interest, deterring negligent conduct, is also
irrelevant. Refusing to enforce the parties' bargain as written
and Washington's interest in enforcing their bargain will at best
only marginally help deter negligent conduct in Alaska, and
enforcing their bargain will not encourage negligent behavior.
Despite such contract terms, tour operators have ample incentive to
avoid negligent conduct because they must anticipate that their
negligent conduct may threaten persons to whom the contract does
not apply, or that their passengers will simply file timely suits.
[Fn. 46]
2. Reliance on insurance policy cases
The court's opinion relies on cases involving insurance
policy provisions that reduce the time for suit. [Fn. 47]
Classifying this tour contract as an adhesion contract, it reasons
that cases concerning time-for-suit clauses in insurance policies
are relevant. [Fn. 48]
Even if Long's contract were a contract of adhesion, our
insurance cases would be irrelevant. Insurance policies are sui
generis in Alaska. [Fn. 49] Our unique treatment of insurance
policies and insurers originates in the fiduciary relationship
between insurers and their insureds. [Fn. 50] There is no such
relationship between a tour operator and its client. And
underlying our insurance cases are the insureds' reasonable
expectations: the expectation of coverage. Insurance has one
fundamental purpose, protecting against loss. That is why insureds
buy it. In comparison, a tour client's reasonable expectations
focus on the tour itself. There is no basis for thinking that a
tour client has any reasonable expectations whatsoever about the
procedures for making a claim if an injury occurs. In a tour
contract, neither the inherent nature of the parties' relationship
nor the purchaser's reasonable expectations resemble their
counterparts that drive our analysis in insurance cases.
There are other relevant differences. There is nothing
fundamentally mystifying about tour contracts compared to the
subtleties of insurance policies. Insurance is a heavily regulated
industry. Insurance policies often follow standardized forms,
subject to agency approval in some states. [Fn. 51] Their terms,
if not impenetrable, are not self-evident. Most insureds would
rather visit the dentist than read an insurance policy for content.
And human nature makes it more likely that a purchaser will read a
tour contract, whose purpose presages pleasure, than an insurance
policy, whose purpose connotes misfortune. Tour clients are
consequently more likely to read and understand their tour
contracts. [Fn. 52]
Long's contract was simply for a vacation tour. I would
not treat it like we treat insurance policies. [Fn. 53]
Moreover, I doubt that this contract met the second
prerequisite for a contract of adhesion. Just because it was a
"standard form printed contract[] prepared by one party and
submitted to the other on a 'take-it-or-leave-it' basis,"[Fn. 54]
does not mean it was an adhesion contract. [Fn. 55] The
transaction "should be one which as a practical matter is
essential, or nearly so, from the standpoint of the weaker party."
[Fn. 56] A tour is not an "essential"transaction, unlike
insurance. Finding both prerequisites, we have held that insurance
contracts are contracts of adhesion. [Fn. 57] We have consequently
enforced limitation provisions in insurance contracts only when
they serve the purpose for which they were included in the
contract. [Fn. 58] We require insurers seeking to enforce time-
for-suit clauses in insurance policies to demonstrate prejudice.
[Fn. 59] That is because an untimely claim would altogether defeat
coverage and would therefore defeat the insured's reasonable
expectations and the whole purpose for purchasing the policy. But
a time-for-suit clause in a tour contract does not defeat the
client's reasonable expectation, which is that the tour take place
as promised. And the non-fiduciary relationship cannot be the
source of imposing a special duty on the tour operator to prove
prejudice to enforce the clause. [Fn. 60]
Finally, one of the Alaska insurance cases cited by the
court's opinion supports my conclusion that contractually adopting
a one-year claim period that begins to run when the cause of action
accrues is not contrary to public policy, even in an insurance
context. In Fireman's Fund Insurance Co. v. Sand Lake Lounge, Inc.
the insurance policy contained a one-year claim deadline. [Fn. 61]
But we held that this deadline was not itself unreasonable, so long
as it was read to begin running not on the date of the fire, but on
the date the cause of action accrued, when the fire insurer denied
coverage. [Fn. 62] That holding is inconsistent with the analysis
that the court's opinion applies here.
3. Adequacy of time
Given that the court invokes a policy of ensuring "an
adequate opportunity for filing a claim,"[Fn. 63] it also seems
inconsistent to find a policy violation without considering the
adequacy of the time the contract specifies. The court would
seemingly find a violation whenever a contract specifies a claim
period shorter than the applicable statutory period, without regard
to the adequacy of the time specified in the contract. The court's
analysis does not differentiate between reductions of one day or
eighteen months. It does not look to see whether the contractually
specified period at least equals other statutory limitations
periods, or the equivalent statutory limitations periods of other
states. [Fn. 64] Even a reduction of one day would offend the
policies the court perceives.
I can agree that it would violate Alaska's public policy
to reduce the time for suit so greatly that it would give a
claimant inadequate time to investigate a possible claim and file
suit. But if the period agreed upon does not unduly interfere with
filing suit, Alaska's interest does not outweigh Washington's
interest in enforcing Washington contracts. Alaska has no interest
in an irreducible period; at most it is interested in a period that
does not unduly restrict access to the courts. Given that the one-
year period agreed upon here is no shorter than the one-year period
the legislature specified for certain personal actions, [Fn. 65] I
think Alaska's public policy does not govern the choice-of-law
issue. We could not hold that Alaska's public policy of access was
offended by legislation reducing the personal injury statutory
period to one year. [Fn. 66] The time specified in the contract
was adequate. This confirms that Alaska's policy interest is much
narrower than the court finds it.
The court would apparently permit enforcement of the
deadline upon a demonstration of prejudice. [Fn. 67] But because
the contract term itself requires no showing of prejudice, and
because prejudice can rarely be demonstrated in any limitations
case, the court is not enforcing the parties' agreement as written.
D. Overreaching
The second main proposition underlying the court's
decision is its conclusion that Holland America overreached when
the contract was formed. I think any overreaching is irrelevant
here. The court should distinguish contractual terms which give a
party no opportunity to protect itself. Perhaps overreaching can
vitiate particular contract provisions. For example, many of the
cruise contract cases deal with choice-of-law and forum-selection
clauses. [Fn. 68] In those cases, the passenger is bound by the
contract terms as soon as the adverse event occurs. Assuming that
it is appropriate in those sorts of cases to determine whether
there was overreaching when the contract was formed, this case
instead concerns a time-for-suit clause. The passenger has an
opportunity (and an acute interest) post-injury to determine
whether to assert a claim and to find out what law controls that
claim. [Fn. 69] Long had one year in which to investigate and sue.
That is not an inadequate or unreasonable amount of time. [Fn. 70]
She had every incentive to read her tour contract promptly and
ample opportunity to investigate her claim and bring suit within
one year. Any possible prejudice the one-year term potentially
posed to her could have been avoided with a modicum of diligence
during the presumptively sufficient one-year period.
The shortness of time in which to seek a refund without
forfeiture or in which to seek recission or reformation is of no
significance to a contract condition whose adverse consequences can
be avoided with modest post-injury effort.
The one-year limitations period does not establish
overreaching.
E. Conclusion
In short, the court's opinion reaches the wrong result.
The purposes underlying Alaska's statutes of limitations are much
more limited than those the court perceives. And those interests
and policies the court relies on that actually exist are either not
relevant here or are not offended by applying Washington law. Any
overreaching by Holland America is also irrelevant to enforcing the
one-year deadline. I therefore disagree that Holland America must
demonstrate prejudice in order to rely on the terms of its
contract. I would enforce the parties' contract and affirm the
superior court's dismissal of Long's complaint.
FOOTNOTES
Footnote 1:
The court also granted Holland America's motion to enter final
judgment under Alaska Civil Rules 54(b) and 58.
Footnote 2:
See Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).
Footnote 3:
See id.; Alaska R. Civ. P. 56(c).
Footnote 4:
See, e.g., Palmer G. Lewis, Co. v. ARCO Chem. Co., 904 P.2d
1221, 1227 & n.14 (Alaska 1995) (applying Restatement sec. 188 to
determine applicable law where parties' contract did not contain
choice-of-law provision); Ehredt v. DeHavilland Aircraft Co. of
Canada, 705 P.2d 446, 453 (Alaska 1985) (applying Restatement to
determine which law governs measure of damages in wrongful death
suit when representative of deceased resided out of state).
Footnote 5:
Restatement (Second) of Conflict of Laws sec. 187 (1971).
Footnote 6:
See id. cmt. d (stating that parties cannot resolve questions
involving capacity, formalities, and substantial validity by
agreement); cf. General Ins. Co. of Am. v. Interstate Serv. Co.,
701 A.2d 1213, 1219 (Md. App. 1997) (analyzing validity of
contractual limitations provision under Restatement sec. 187(2)).
Footnote 7:
See Restatement sec. 187 cmt. f (reasonable basis for a choice
of
law exists "where one of the parties is domiciled or has his
principal place of business"in chosen state).
Footnote 8:
See Restatement sec. 188(2). Restatement sec. 6(2) provides
that
when there is no statutory directive, the factors to be considered
in determining choice of law include:
(a) the needs of the interstate and
international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the
particular field of law,
(f) certainty, predictability and uniformity
of result, and
(g) ease in the determination and application
of the law to be applied.
Footnote 9:
Id. at sec. 188(2) & cmt. e.
Footnote 10:
Id. at sec. 188 cmt. e.
Footnote 11:
See id.
Footnote 12:
See infra note 19 and accompanying text.
Footnote 13:
See Marine Constr. & Design Co. v. Vessel Tim, 434 P.2d 683,
686 (Alaska 1967).
Footnote 14:
Restatement sec. 146.
Footnote 15:
See Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1045 (Alaska
1981) ("Setting appropriate statutes of limitation is indeed a
function within the legislature's purview, as such statutes
represent judgments on questions of public policy."); see also
Industrial Indem. Ins. Co. v. United States, 757 F.2d 982, 986, 988
(9th Cir. 1985).
Footnote 16:
See Marks v. State, 496 P.2d 66, 68 n.4 (Alaska 1972)
(commenting that uniform statutes of limitations provide
predictability in legal proceedings).
Footnote 17:
Cf. Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998). As the
Alaska Legislature recently stated, it is the public policy of
Alaska to protect "Alaskans' rights to reasonable, but not
excessive, compensation for tortious injuries caused by others."
See also ch. 26, sec. 1, SLA 1997.
Footnote 18:
As a New Jersey court recently explained:
The policy of deterrence is based on the
thesis that exacting compensation from a wrongdoer will
deter his or her future misconduct, and is ordinarily
associated with the sovereignty in which the past
misconduct took place and in which future misconduct may
occur. The state in which the accident occurred has an
interest in maintaining safety and deterring such
conduct.
Erny v. Russo, 754 A.2d 606, 612 (N.J. Super. 2000) (citation
omitted); cf. Sturm, Ruger & Co. v. Day, 594 P.2d 38, 47 (Alaska
1979) (noting that punitive damages available in products liability
serve deterrence function) modified, 615 P.2d 621 (Alaska 1980),
overruled, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985).
Footnote 19:
See Industrial Indem. Ins. Co., 757 F.2d at 987.
Footnote 20:
See Nolan, 627 P.2d at 1045.
Footnote 21:
See West v. Buchanan, 981 P.2d 1065, 1068 (Alaska 1999)
(citing Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991)).
Footnote 22:
See Johnson v. City of Fairbanks, 583 P.2d 181, 186-87 (Alaska
1978).
Footnote 23:
See AS 09.10.070.
Footnote 24:
We have stated: "We look upon the defense of statute of
limitations with disfavor and will strain neither the law nor the
facts in its aid." Fred Meyer of Alaska, Inc. v. Adams, 963 P.2d
1025, 1027 n.6 (Alaska 1998) (citing Tipton v. ARCO Alaska, Inc.,
922 P.2d 910, 912-13 (Alaska 1996) and Lee Houston & Assocs., Ltd.
v. Racine, 806 P.2d 848, 854-55 (Alaska 1991)).
Footnote 25:
583 P.2d at 187.
Footnote 26:
845 P.2d 420, 423 (Alaska 1993).
Footnote 27:
And notably, at least one other court applying Restatement
sec.
187(b)(2) has specifically ruled that a forum state's interest in
enforcing uniform filing deadlines overrides a contractual choice-
of-law clause that would apply another state's shorter deadlines.
See Industrial Indem. Ins. Co., 757 F.2d at 987-88.
Footnote 28:
In Kooly v. State, we observed that the objective of our
negligence law is to provide "a means whereby a person may recover
for losses caused by a danger which another's unreasonable behavior
created." 958 P.2d 1106, 1108 (Alaska 1998) (quoting Schumacher v.
City & Borough of Yakutat, 946 P.2d 1255, 1257 (Alaska 1997)
(footnotes omitted)).
Footnote 29:
See infra notes 32 & 33 and accompanying text.
Footnote 30:
See supra notes 17 & 18 and accompanying text.
Footnote 31:
Compare, e.g., AS 45.45.900 (providing that indemnification
clauses concerning construction contracts which protect the
promisee from liability for damage caused by the promisee's
negligence are against Alaska's public policy).
Footnote 32:
Ch. 26, sec. 1, SLA 1997.
Footnote 33:
See AS 09.17.080; Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d
98, 104-05 (Alaska 2000).
Footnote 34:
Estes v. Alaska Ins. Guar. Ass'n, 774 P.2d 1315, 1318 (Alaska
1989) (citing Fireman's Fund Ins. Co. v. Sand Lake Lounge, Inc.,
514 P.2d 223, 226 (Alaska 1973)).
Footnote 35:
See Alaska Energy Auth. v. Fairmont Ins. Co., 845 P.2d 420,
422 (Alaska 1993); Estes, 774 P.2d at 1318.
Footnote 36:
Estes, 774 P.2d at 1318.
Footnote 37:
Holland America disputes that the tour contract was an
"adhesion contract,"but not that it dictated the terms of the
contract and possessed disproportionate bargaining power.
Footnote 38:
See Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 8 (1st
Cir. 1991).
Footnote 39:
See id. at 8-9.
Footnote 40:
Id. at 9 (quoting Shankles v. Costa Armatori, S.P.A., 722 F.2d
861, 863-64 (1st Cir. 1983)).
Footnote 41:
See Dempsey v. Norwegian Cruise Line, 972 F.2d 998, 999 (9th
Cir. 1992); cf. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585,
595 (1991) ("It bears emphasis that forum-selection clauses
contained in form passage contracts are subject to judicial
scrutiny for fundamental fairness.").
Footnote 42:
Because the trial court decided this case on summary judgment,
we construe the record in the light most favorable to Long.
Footnote 43:
The tour vouchers provided, in relevant part:
Cancellations Policy: Holland America's
Cancellations Policy for the cruise or tour
you have selected is specified in the applicable Holland America
brochure. In most cases, this policy permits a full refund of
amounts received by Holland America . . . if written cancellation
is received by Holland America at least 76 days prior to the date
on which you are to commence travel . . . . Note that certain
voyages require that written cancellation be received more than 76
days prior to travel commencement. Partial refunds may be
available for later cancellations. No refunds are made in the case
of cancellations received less than a certain number of days prior
to travel commencement. The applicable brochure specifies the
exact cancellation deadlines and refund amounts. Cancellation fees
apply regardless of the reason for cancellation, including medical
and family matters.
(Emphasis added.)
Footnote 44:
We do not suggest that this is the only possible interpreta
tion of the tour contract's refund provisions. A notice printed on
the first page of the contract stated:
If any term or condition of this contract
. . . is unacceptable to you, this contract
. . . will be cancelled and the "refund
amount"paid to you (without deducting cancellation fees) but only
if this contract is surrendered to HALW for cancellation within 10
days after receipt of this contract by you or your travel agent
(whichever occurs first), but in any event prior to commencing your
cruise or cruisetour.
In contrast to the contract's Cancellations Policy, this notice
seems to provide for a full refund under certain circumstances.
And the notice's language could arguably be construed to override
the Cancellations Policy's potentially conflicting provisions. But
the possibility of interpreting the contract in a way that would
harmonize this internal tension is irrelevant for present purposes.
The important point here is that a traveler in Long's position --
one who receives the contract at the last minute and has no clear
indication of how these potentially conflicting provisions would
ultimately be reconciled -- could reasonably conclude that a full
refund might be denied, or at least that the risk of denial was too
great to make cancellation a realistic option.
Footnote 45:
499 U.S. at 597-98 (Stevens, J., dissenting). Notably, the
majority opinion of the Court in Carnival Cruise Lines avoided this
issue, electing instead to rely on the respondents' concession that
they received sufficient notice of the forum selection clause
before entering the contract for passage. See id. at 590.
Footnote 46:
Because this case arises on summary judgment, our ruling is
necessarily based on the evidentiary record that existed when the
superior court entered its order. Our holding does not preclude
the superior court, in its discretion, from allowing Holland
America to present further evidence on the issue of prejudice.
FOOTNOTES (Dissent)
Footnote 1:
As the court's opinion correctly notes, "under Restatement
sec.
187(2)(b) we should apply Alaska law only if three conditions are
met: (1) Alaska's law would apply under Restatement sec. 188 in the
absence of an effective choice of law; (2) Alaska has a materially
greater interest in the issue; and (3) the application of Washing
ton law would offend a fundamental policy of Alaska." Slip Op. at
6.
Footnote 2:
See Southcenter View Condominium Owners' Ass'n v. Condominium
Builders, Inc., 736 P.2d 1075, 1076-78 (Wash. App. 1986) (enforcing
one-year contractual limitation provision against plaintiff's
negligence and contract claims, and holding that contractual
limitations provisions are enforceable if reasonable (citing
Wilhelmy v. Northwest Airlines, 86 F. Supp. 565, 567-68 (W.D. Wash.
1949) (barring passenger's personal injury claims against airline
because she failed to comply with ticket's requirements that she
give written notice of claim within thirty days and commence suit
within one year of occurrence of injury)); see also Yakima Asphalt
Paving Co. v. Washington State Dep't of Transp., 726 P.2d 1021,
1023 (Wash. App. 1986) ("Parties to a contract can agree to a
shorter limitations period than that called for in a general
statute.").
Footnote 3:
See Slip Op. at 9.
Footnote 4:
Slip Op. at 9.
Footnote 5:
Slip Op. at 9.
Footnote 6:
Slip Op. at 10. In support of this proposition, the court
cites Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1045 (Alaska
1981). See Slip Op. at 10 n.20. Nolan did not involve parties who
agreed to reduce the deadline for filing actions. See Nolan, 627
P.2d at 1037-38.
Footnote 7:
Slip Op. at 10-11 (citing West v. Buchanan, 981 P.2d 1065,
1068 (Alaska 1999) (citing Pedersen v. Zielski, 822 P.2d 903, 907
(Alaska 1991)), for the first proposition, and Johnson v. City of
Fairbanks, 583 P.2d 181, 186-87 (Alaska 1978), for the second).
Footnote 8:
See Slip Op. at 6-8.
Footnote 9:
Slip Op. at 14.
Footnote 10:
Slip Op. at 16-18.
Footnote 11:
See Slip Op. at 18 n.46.
Footnote 12:
Slip Op. at 10.
Footnote 13:
See West v. Buchanan, 981 P.2d 1065, 1068 (Alaska 1999)
("[T]he purpose of statutes of limitations is to protect defendants
from the injustices that may result from the prosecution of stale
claims."(emphasis added)); Pedersen, 822 P.2d at 907 ("The purpose
of statutes of limitations is to eliminate the injustice which may
result from the litigation of stale claims."(emphasis added)); Lee
Houston & Assocs. v. Racine, 806 P.2d 848, 855 (Alaska 1991)
("[T]he primary purpose of the statutes of limitations . . . [is]
to encourage prompt prosecution of claims and thus avoid injustices
which may result from lost evidence, faded memories and disappear
ing witnesses. . . . [A] shorter limitations period is consistent
with the more evanescent nature of evidence which is frequently
found in cases involving personal, reputational or dignity
injuries."(emphasis added, citation omitted)); Byrne v. Ogle, 488
P.2d 716, 718 (Alaska 1971) ("It is generally recognized that the
purpose of statutes of limitations is to encourage promptness in
the prosecution of actions and thus avoid the injustice which may
result from the prosecution of stale claims."(citation omitted));
see also Note, Developments in the Law: Statutes of Limitations,
63 Harv. L. Rev. 1177, 1185 (1950) [hereinafter Developments] ("The
primary consideration underlying [the statutes of limitations] is
undoubtedly one of fairness to the defendant."). The "collateral
purposes"that have been identified do not include setting a
minimum time for suit. See id. at 1185-86.
Footnote 14:
See Developments, supra note 13, at 1185 ("Another factor may
be an estimate of the effectiveness of the courts, and a desire to
relieve them of the burden of adjudicating inconsequential or
tenuous claims."(citation omitted)).
Footnote 15:
See, e.g., Byrne, 488 P.2d at 718; Developments, supra note
13, at 1183. But compare Johnson v. City of Fairbanks, 583 P.2d
181, 187 (Alaska 1978), which I discuss below in text.
Footnote 16:
583 P.2d 181, 187 (Alaska 1978), cited in Slip Op. at 10 n.22.
Footnote 17:
Id.
Footnote 18:
See id. at 182 & n.3.
Footnote 19:
See id.
Footnote 20:
See supra note 13.
Footnote 21:
Restatement (Second) of Conflict of Laws sec. 187 cmt. g
(1971).
Footnote 22:
701 A.2d 1213 (Md. App. 1997).
Footnote 23:
Id. at 1219 (quoting Md. Ann. Code art. 48A, sec. 377B (1994)
(recodified at Md. Code Ann., Ins. sec. 12-104 (2000))); see also
Dunlop Tire & Rubber Corp. v. Ryan, 108 N.W.2d 84, 88 (Neb. 1961)
(stating that contractual limitations periods in insurance
contracts are void because Nebraska state statute expressly forbids
such provisions when they vary from general statute of limita
tions). Similarly distinguishable is Industrial Indemnity
Insurance Co. v. United States, 757 F.2d 982, 986 (9th Cir. 1985)
(applying Idaho Code sec. 29-110 (1980), which declares "void"any
contract condition "which limits the time within which [a party]
may thus enforce his rights"), on which the court's opinion relies
for a variety of propositions. See Slip Op. at 8 n.15, 9 n.19, &
11 n.27.
Footnote 24:
Fireman's Fund Ins. Co. v. Sand Lake Lounge, Inc., 514 P.2d
223, 226 (Alaska 1973) (quoting 1A Arthur Linton Corbin, Contracts
sec. 218, at 311-12 (1963)). The revised version of Corbin on
Contracts contains an almost identical statement. See 3 Eric M.
Holmes, Corbin on Contracts sec. 9.9, at 278 (1996).
Footnote 25:
Fireman's Fund, 514 P.2d at 226 (quoting 1A Corbin, supra note
24, sec. 218, at 311-12 (emphasis deleted)).
Footnote 26:
Fireman's Fund, 514 P.2d at 224.
Footnote 27:
See Developments, supra note 13, at 1181 ("In the absence of
controlling legislation, the courts generally uphold agreements
shortening the period for bringing suit, for of course there is no
conflict with the general policy favoring prompt settlement.").
Footnote 28:
See Slip Op. at 10-13.
Footnote 29:
Slip Op. at 10.
Footnote 30:
See AS 09.10.130 (tolling statutes of limitations when
defendant is out of state or concealed in state until defendant
returns or concealment ceases); AS 09.10.140 (tolling statutes of
limitations for minority and incompetency).
Footnote 31:
See, e.g., Margolies v. State Farm Fire & Cas. Co., 810 F.
Supp. 637, 641 (E.D. Pa. 1992) (holding that Pennsylvania statute
prohibiting insurer from substituting contractual provisions less
favorable to insured embodies public policy sufficient to invali
date insurance contract provisions which purport to substitute
one-year limitations period for claims which by statute have three-
year limitations period); Sun Ins. Office, Ltd. v. Clay, 133 So. 2d
735, 737-38 (Fla. 1961) (holding that Florida statute declaring
that any contractual stipulation fixing time for instituting suit
under the contract at a period of time less than that prescribed by
statute of limitations should be illegal and void was applicable to
policy applied for in Illinois by Illinois resident, who moved to
Florida where loss occurred); St. Louis & S.F.R. Co. v. James, 128
P. 279, 285 (Okla. 1912) (holding that stipulation in shipment
contract requiring suit to be brought thereon within six-months of
accrual of cause of action violated Oklahoma statute providing
"[e]very stipulation or condition in a contract, by which any party
thereto is restricted from enforcing his rights under the contract
by the usual legal proceedings in the ordinary tribunals, or which
limits the time within which he may thus enforce his rights, is
void"); see also supra note 23.
Footnote 32:
See, e.g., Turner Constr. Co. v. Scales, 752 P.2d 467, 470-72
(Alaska 1988) (holding that six-year statute of repose on suits
against design professionals violated equal protection clause of
state constitution); Greater Area Inc. v. Bookman, 657 P.2d 828,
829-30 (Alaska 1982) (adopting discovery rule); see also Hanebuth
v. Bell Helicopter Int'l, 694 P.2d 143, 148 (Alaska 1984) (Moore,
J., dissenting) (stating that "[t]his court should not blithely
interfere with the balance struck by the legislature"by applying
discovery rule to statutory two-year limitations period for
wrongful death actions).
Footnote 33:
See Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971).
Footnote 34:
Fireman's Fund, 514 P.2d at 226.
Footnote 35:
Slip Op. at 8 (citations omitted).
Footnote 36:
See, e.g., Law Offices of Steven D. Smith, P.C. v. Borg-Warner
Sec. Corp., 993 P.2d 436, 444 (Alaska 1999) (estoppel); Abbott v.
State, 979 P.2d 994, 999 (Alaska 1999) (equitable tolling); Greater
Area Inc. v. Bookman, 657 P.2d 828, 829-30 (Alaska 1982) (discovery
rule).
Footnote 37:
See, e.g., supra note 30.
Footnote 38:
See Pedersen v. Zielski, 822 P.2d 903, 907 (Alaska 1991)
("Application of the discovery rule, however, is dependent on facts
that are often unclear.").
Footnote 39:
See, e.g., Van Horn Lodge, Inc. v. White, 627 P.2d 641, 643
(Alaska 1981) (holding that in absence of express promise by
attorney to client, two-year statute of limitations applied to
malpractice claim), overruled by Lee Houston & Assocs., Ltd. v.
Racine, 806 P.2d 848, 854-55 (Alaska 1991) (holding six-year
statute of limitations for contract applied to malpractice claim
involving primarily economic injury).
Footnote 40:
See State, Dep't of Corrections v. Welch, 805 P.2d 979, 981-82
(Alaska 1991) (stating that statute of limitations on claim for
negligent supervision of probationer began to run when plaintiffs
had information reasonably sufficient to prompt inquiry into
claim); Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292
(Alaska 1988) (stating that statute of limitations begins to run
when tort victim regains competency shortly after accident).
Footnote 41:
Compare Johnson, where the parties had no contractual
relationship. The court there discussed the prospect of inconsis
tency between state and local government entities, and the effect
of place of residence and whether it was a governmental unit that
acted tortiously. 583 P.2d at 186-87.
Footnote 42:
Slip Op. at 8.
Footnote 43:
Slip Op. at 8.
Footnote 44:
See Savage Arms, Inc. v. Western Auto Supply Co., 18 P.3d 49,
53-54 (Alaska 2001) (concluding that tort liability of corporate
successor should be evaluated using choice-of-law rules governing
tort rather than contract or corporate law, in order to preserve
public policy behind products liability law -- to ensure that
responsible parties bear costs of injuries).
Footnote 45:
See AS 09.10.070-.090; see also McDowell v. State, 957 P.2d
965, 971 (Alaska 1998) ("[T]he defense of the statute of limita
tions is a legitimate, but disfavored, defense.").
Footnote 46:
In comparison, see AS 45.45.900, discussed in the court's
Opinion at page 12 in footnote 31. That statute unequivocally
expresses the legislature's intention to prohibit certain indemnity
clauses as contrary to Alaska's public policy; such clauses tend to
deprive actors of an incentive to act nonnegligently, because they
cannot be held liable for the consequences of their actionable
conduct. The contract term in issue here has no such tendency.
Footnote 47:
See Slip Op. at 13-14 (citing Alaska Energy Auth. v. Fairmont
Ins. Co., 845 P.2d 420, 422 (Alaska 1993); Estes v. Alaska Ins.
Guar. Ass'n, 774 P.2d 1315, 1318 (Alaska 1989); Fireman's Fund Ins.
Co. v. Sand Lake Lounge, Inc., 514 P.2d 223, 226 (Alaska 1973)).
Footnote 48:
Slip Op. at 14 & n.37.
Footnote 49:
See, e.g., Makarka v. Great Am. Ins. Co., 14 P.3d 964, 966
(Alaska 2000) ("[W]e treat insurance contracts as contracts of
adhesion and construe them to provide coverage that a layperson
would reasonably have expected, given a lay interpretation of the
policy language.") (citations omitted).
Footnote 50:
See, e.g., O.K. Lumber Co. v. Providence Washington Ins. Co.,
759 P.2d 523, 525 (Alaska 1988) (stating that a "fiduciary
relationship [is] inherent in every insurance contract"); Continen
tal Ins. Co. v. Bussell, 498 P.2d 706, 710 (Alaska 1972) (stating
that finding policy is contract of adhesion turns not on its terms
but on relationship of parties).
Footnote 51:
See Fireman's Fund, 514 P.2d at 226 n.4 (discussing standard
policy forms).
Footnote 52:
The contract here was both legible and understandable.
Footnote 53:
See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 593-94
(1991) (enforcing forum selection clause in cruise ticket even
though term was not bargained for because cruise line has special
interest in limiting fora, ex ante forum selection has salutory
effect of dispelling uncertainty as to where suits must be brought
and defended, and passengers who purchase tickets with forum
selection clause benefit in form of reduced fares reflecting cruise
lines' savings from reduced litigation costs).
Footnote 54:
Burgess Constr. Co. v. State, 614 P.2d 1380, 1383 (Alaska
1980) (quoting Standard Oil Co. v. Perkins, 347 F.2d 379, 384 n.5
(9th Cir. 1965)).
Footnote 55:
See id. at 1383-84.
Footnote 56:
Id. at 1383. As a practical matter, the form of most public
works construction contracts is unalterable. As we noted, "Burgess
was not without options . . . it could refuse to bid." Id. at
1384.
Footnote 57:
See, e.g., Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d
1292, 1294 (Alaska 1994).
Footnote 58:
See Alaska Energy Auth. v. Fairmont Ins. Co., 845 P.2d 420,
423-24 (Alaska 1993) (declining to enforce limitations provision
absent showing by insurer that it had been prejudiced by insured's
delay in filing suit); Estes v. Alaska Ins. Guar. Ass'n, 774 P.2d
1315, 1318 (Alaska 1989) (holding that to bar insured's claim for
failure to comply with policy's one-year time limit, insurer must
establish that insured's delay caused insurer to suffer such
prejudice as limit was intended to avoid).
Footnote 59:
See Estes, 774 P.2d at 1318.
Footnote 60:
The "three common judicial responses"to adhesion contracts
are all inappropriate here, where there was (1) no ambiguity; (2)
the one-year provision was not an unexpected term outside Long's
reasonable expectations and was expressed in clear, plain, and
conspicuous language; and (3) the one-year term is not unenforce
able as against public policy. See Burgess, 614 P.2d at 1384.
Footnote 61:
514 P.2d 223, 224 (Alaska 1973).
Footnote 62:
See Fireman's Fund, 514 P.2d at 227.
Footnote 63:
Slip Op. at 10.
Footnote 64:
See, e.g., Cal. Civ. Proc. Code sec. 340 (West 2000) (one-year
period in which to sue for "injury or death from wrongful act or
neglect"); Ky. Rev. Stat. Ann. sec. 413.140 (Banks-Baldwin 2000)
(one-year period in which to bring "[a]n action for an injury to
the
person of the plaintiff, or of her husband, his wife, child, ward,
apprentice, or servant").
Footnote 65:
See AS 09.10.080 (prohibiting action for escape unless brought
within one year); AS 09.10.090 (prohibiting private party's action
for penalty unless brought within one year).
Footnote 66:
In Fireman's Fund we reasoned that a one-year deadline on suit
against a fire insurer would "smack of unreasonableness"if the
"operational effect . . . would be to reduce the limitation period
to considerably less than one year from the date the cause of
action accrued." 514 P.2d at 227. Here, of course, Long's cause
of action accrued at the moment of injury. In Fireman's Fund we
implicitly recognized that a one-year claim period was not in
itself unreasonably short.
Footnote 67:
See Slip Op. at 14.
Footnote 68:
See McTigue v. Regal Cruises, Inc., No. 97 Civ. 7444(JSM),
1998 WL 191430, at *1-2 (S.D.N.Y. Apr. 22, 1998) (refusing to
enforce forum-selection clause when passenger received ticket five
weeks before departure and after payment); Corna v. American Hawaii
Cruises, Inc., 794 F. Supp. 1005, 1008-12 (D. Haw. 1992) (refusing
to enforce forum-selection clause when passengers received tickets
two to three days before departure and would have forfeited entire
purchase price if they canceled); Johnson v. Holland Am. Line-
Westours, Inc., 557 N.W.2d 475, 478-79 (Wis. App. 1996) (refusing
to enforce forum-selection clause where express terms of ticket
prevented passengers from rejecting it without forfeiting several
thousand dollars). But see Lauri v. Cunard Line Ltd., No. 00-CV-
70656-DT, 2000 WL 791771, at *4 (E.D. Mich. May 15, 2000) (enforc
ing forum-selection clause even though passenger received ticket
only nineteen days before sailing and would have forfeited entire
purchase price if she canceled; relying on two shortened-limita
tions clause cases, Natale v. Regency Maritime Corp., No. 94 Civ.
0256(LAP), 1995 WL 117611 (S.D.N.Y. Mar. 17, 1995), and Boyles v.
Cunard Line Ltd., No. 93 Civ. 5472(CES), 1994 WL 449251 (S.D.N.Y.
Jan. 11, 1994).
Footnote 69:
See Ames v. Celebrity Cruises, Inc., 97 Civ. 0065(LAP), 1998
WL 427694, at *5 (S.D.N.Y. July 29, 1998) (enforcing shortened
limitations provision and stating that "[b]ecause plaintiffs were
unaffected by the time limitations until they suffered injury, they
had a duty at that time to consult their tickets or to contact [the
cruise line] in order to learn of any limitations affecting their
right to sue") (citation omitted); Sasso v. Travel Dynamics, Inc.,
844 F. Supp. 68, 71-73 (D. Mass. 1994) (enforcing shortened
limitations provision even though injured passenger received ticket
less than four weeks before departure, reasoning that important
factor was plaintiff's consultation with counsel within three
months of accident and stating that defendant should not be made to
bear responsibility for plaintiff's counsel's inexplicable delay in
requesting ticket or reading limitations period).
Footnote 70:
Long's attorney submitted a written claim to Holland America
about ten months after Long was injured.
