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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gibson v. GEICO General Insurance Company (03/02/2007) sp-6106
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MARY GIBSON, | ) |
| ) Supreme Court No. S- 12109 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-3508 CI |
| ) | |
| GEICO GENERAL INSURANCE | ) O P I N I O N |
| COMPANY, | ) |
| ) | |
| Appellee. | ) No. 6106 - March 2, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Michaela Kelley Canterbury,
Kelley & Canterbury, LLC, Anchorage, for
Appellant. Susan D. Mack, Call Hanson &
Kell, P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
MATTHEWS, Justice.
I. INTRODUCTION
GEICO refused to pay on Mary Gibsons underinsured
motorist policy, claiming that her damages did not exceed $50,000
and therefore were not high enough to trigger her policy. Gibson
sued GEICO, and a jury determined that her damages amounted to
$68,611. Gibson appeals several of the superior courts
determinations, namely: preventing her from deposing two GEICO
employees, preventing a GEICO employee from testifying at trial,
improperly identifying GEICO to the jury, offsetting the jury
verdict, inappropriately calculating attorneys fees and
prejudgment interest, and refusing to review the clerks cost
determination. Perceiving no error, we affirm.
II. FACTS AND PROCEEDINGS
Mary Gibson was injured when Mary Kudlacik drove
through a stop light and hit Gibsons car. Both Gibson and
Kudlacik were covered by GEICO insurance. Gibson offered to
settle for Kudlaciks policy limits of $50,000, and this was
accepted. Gibson received the $50,000 facial policy limits of
Kudlaciks policy, plus $12,747.89 in add-ons for a total of
$62,747.89. Gibson informed GEICO that the policy limits
settlement would trigger an underinsured motorist (UIM) claim
under Gibsons policy. Gibson appears to have requested policy
limits under her UIM coverage. GEICO rejected the policy limits
demand and declined arbitration. Gibson demanded arbitration,
which GEICO again declined.
Gibson then filed a complaint against GEICO in superior
court requesting (1) recognition of her UIM claim, (2) a court-
tried case, (3) damages for her injuries, and (4) attorneys fees,
interest, and costs. Gibsons complaint did not allege bad faith
on the part of GEICO. GEICO denied the magnitude of Gibsons
injuries and asserted that Kudlacik was not an underinsured
driver because Gibsons injuries did not exceed the $50,000 policy
limits she received under Kudlaciks policy. GEICO demanded a
jury trial, which the superior court granted over Gibsons
opposition and cross-motion for a court-tried case.
The parties proceeded with discovery. Gibson sought to
depose two GEICO employees, Sue Smith and Michael Lina. Lina was
identified in GEICOs Civil Rule 26(a)(1) initial disclosures as a
person likely to have discoverable information, and Smith was
listed on GEICOs preliminary witness list. GEICO moved for a
protective order pursuant to Civil Rule 26(c) preventing Gibsons
attempts to depose its two employees, arguing that Gibsons motive
was to harass, annoy and burden GEICO employees by seeking
irrelevant and inadmissible testimony. Gibson opposed the
protective order motion and moved to compel the depositions. The
court heard oral argument on GEICOs motion for a protective order
and Gibsons motion to compel.
At oral argument, the court decided that the case would
look at trial . . . just as any auto injury
case would. Here are our medical bills. The
jury is not going to know what has been paid
up to date, what insurance policy limits are,
that there are two carriers. None of that is
relevant to their determination, and all of
it tends in fact to corrupt their
determination, which is . . . what . . . this
auto accident is worth . . . . So Im going
to deny any discovery which goes beyond what
happened in the case . . . . [Plaintiffs
attorney can call] plaintiff, occurrence
witnesses, doctors, an economist, if he
wishes, and then were done.
Basically, the court appears to have denied Gibsons motion to
compel on the grounds that Smith and Lina did not possess
information relevant to the issues before the jury; that is, they
possessed no relevant information regarding Gibsons damages.
Gibson then subpoenaed Lina to testify at trial. GEICO
filed a motion to quash the subpoena based on the courts ruling
in response to Gibsons motion to compel Linas deposition. The
court issued an order stating that Lina would not testify at
trial unless Gibson could demonstrate that he had admissible
testimony to offer as to disputed facts. The only facts being
disputed, of course, were those surrounding the extent of Gibsons
damages.
Gibson then sought an order establishing the law of the
case. Specifically, Gibson argued that the courts orders
impermissibly redacted GEICOs role from the proceedings. GEICO
responded that it should not be identified as an underinsured
carrier because that would be tantamount to disclosing the
underlying settlement, and that the adjusters analysis of the
case, terms of the insurance policy, the underlying settlement
for policy limits, settlement discussions and the amount of
coverage available in the UIM policy are irrelevant to [Gibsons]
damages.
The court denied Gibsons rule of law motion, stating
that the matter had already been argued and explaining that
revealing the fact and amount of the insurance settlement had the
propensity to suggest to the jury the appropriate range of
damages awards. Ultimately, Lina did not testify at trial.
The jury found that Gibson had suffered $68,611 in
damages as a result of the collision.1 GEICO moved for entry of
final judgment, requesting an offset for Gibsons receipt of the
$50,000 policy limits settlement from Kudlacik and requesting
Rule 82 attorneys fees as the prevailing party. Gibson moved for
entry of final judgment on the entire $68,611 award and requested
attorneys fees, costs, and prejudgment interest on that amount.
Gibson also requested an upward variance from the Rule 82
attorney fee schedule and asserted that GEICO had failed to
establish a right to set off Gibsons receipt of the $50,000
policy limits settlement from Kudlacik. GEICO objected to
Gibsons request.
The court reduced the $68,611 award by $50,000, the
principal amount received from Underinsured driver, Mary
Kudlacik. The court calculated prejudgment interest and
attorneys fees based on the reduced award.
Gibson requested costs in the amount of $6,794.35.
GEICO objected to a cost bill in excess of $2,717.62 for a
variety of reasons. The Chief Deputy Clerk of Court awarded
Gibson costs of $3,446.65. Gibson moved for review of the clerks
award. The court refused to review the clerks decision because
Gibson failed to defend her filing by producing receipts to the
clerk or addressing [GEICOs] arguments.
Gibson now appeals.
III. DISCUSSION
A. Did the Superior Court Abuse Its Discretion by
Prohibiting Gibson from Deposing Lina and Smith?
This court reviews a trial courts discovery rulings for
abuse of discretion.2 This court exercises its independent
judgment when interpreting a civil rule.3 Gibson argues that the
Alaska Rules of Civil Procedure permitted the deposition of Lina
and Smith, that deposing them would likely have led to discovery
of admissible evidence, and that Gibson was prejudiced by the
courts limitations. GEICO argues that Linas and Smiths mental
impressions were not relevant or likely to lead to relevant
eviden[ce].
Gibson cites Civil Rule 30, which permits a party to
depose any person without leave of court. Gibson does not
mention Civil Rule 26(b). Civil Rule 26(b)(1) sets the default
scope of discovery to any matter, not privileged which is
relevant to the subject matter involved in the pending action.
Gibson concedes that [t]he only issue of material fact to be
litigated at trial was the extent of damages Gibson sustained in
the 3/13/01 car wreck. Gibson argues that because Lina and Smith
investigated her claims, their testimony is relevant to the issue
of damages. GEICO takes the position that the adjustors
evaluations of Gibsons damages are irrelevant to Gibsons damages
and therefore not within the scope of discovery. The court
indicated as much, stating that it would manage this case as a .
. . personal injury case to ascertain what the money damages are
. . . [not as] a broad based bad faith case where we need to get
into manuals and the heads of adjusters. Since Smith and Lina
had no personal knowledge about the extent of Gibsons injuries,
and insurer bad faith was not an issue, we are not persuaded that
the court abused its discretion by determining that the
information they could provide at deposition was not relevant to
the subject matter involved in the pending action and therefore
beyond the scope of discovery.4
Civil Rule 26(b)(2) permits the court to limit the
scope of discovery pursuant to a motion for a protective order
like the one brought by GEICO. Discovery may be limited because
evidence is unreasonably cumulative or duplicative, or . . .
obtainable from some other source that is more convenient, less
burdensome, or less expensive5 or because the burden or expense
of the proposed discovery outweighs its likely benefit, taking
into account . . . the importance of the proposed discovery in
resolving the issues.6 Even if deposing the claims adjustors
might have led to some information on damages, the likely benefit
of such information seems small given the availability of medical
records and testimony. Gibson does not assert that the adjustors
possessed personal knowledge about her damages. Since the
relevant information the adjusters had was obtainable from other
sources and the bulk of their testimony was likely to be
tangential to the issue of damages, a conclusion that the burden
of the discovery outweighed its likely benefit would have been
within the courts discretion.
B. Did the Superior Court Abuse Its Discretion by Ruling
that Lina Would Not Testify at Trial?
The appropriate standard of review for evidentiary
decisions is abuse of discretion.7 The court ruled that Lina
would not testify at trial unless Gibson could demonstrate that
he had admissible testimony to offer as to disputed facts. Under
the courts analysis, Gibsons grounds for subpoenaing Lina to
testify did not raise disputed issues of material fact.
In Gibsons opposition to GEICOs motion to quash the
subpoena of Lina, Gibson stated that Linas testimony was
relevant to the facts of the tortfeasors
insurance liability amount, the fact of
settlement for the liability policy, the
terms of the insurance contract between
[Gibson] and [GEICO] that is the basis of
this lawsuit, the basis of GEICOs denial of
[Gibsons] complaint against GEICO, GEICOs
investigation to the extent of injuries
[Gibson] sustained in the subject car wreck,
[Gibsons] credibility and [GEICOs]
credibility.
Basically, Lina would testify as to the insurance contract and
the insurance settlement.
Gibson suggests that the court determined that Linas
testimony would be inadmissible under Evidence Rule 411, which
disallows evidence of insurance to show negligence but not for
other purposes. The courts order is more appropriately grounded
in Evidence Rule 403, which permits exclusion of relevant
evidence where, among other things, its probative value is
outweighed by the danger of unfair prejudice. In its order
denying Gibsons rule of law motion, the court cited Central
Bering Sea Fishermens Assn v. Anderson,8 a wrongful termination
and defamation case brought by a former employee of Central
Bering Sea. The jury awarded the plaintiff punitive damages on
her defamation claim.9 Central Bering Sea appealed, arguing,
among other things, that the superior court erred by instructing
the jury on the existence and amount of the statutory punitive
damages cap.10 This court agreed with Central Bering Sea, holding
that [p]utting the caps before the jury carried a substantial
risk of suggesting the range of appropriate punitive awards.
Moreover, no countervailing benefit could be gained from the
instruction.11
The superior court appears to have used Central Bering
Sea as legal support for a Rule 403 analysis. The court
concluded that evidence of the insurance settlement, like
knowledge of the punitive damages cap, had the propensity to
suggest the appropriate range of awards. Evidence of the
insurance settlement may have been relevant, but its probative
value on the issue of damages was slight. As such, any probative
value was easily outweighed by the danger of unfair prejudice
that might result from suggesting the appropriate range of
damages awards. Therefore, evidence of the insurance settlement
was inadmissible under Rule 403. Since Lina would be called to
testify as to the insurance settlement, and Gibson failed to
demonstrate that Lina would be able to testify as to damages,
Linas testimony was inadmissible under Rule 403.
Gibson also argues that the courts order barring Linas
testimony resulted in the jury being unaware of GEICOs identity
and role in the case. However, as is discussed in the next
section, the jury knew that GEICO was the defendant and Gibson
was the plaintiff. Therefore it knew both the identity of GEICO
and its adverse relationship with Gibson.
C. Was the Superior Courts Framing of the Case
Inappropriate?
Gibson makes a more general argument that the superior
court improperly limited disclosure of relevant facts to the
jury. Gibson argues that the insurance contract was the basis of
her claim and therefore it was necessary evidence. Gibson argues
that because of the courts limitations on the evidence she
presented, she was unable to explain to the jury why the parties
were even litigating. Gibson seems to claim that the courts
rulings amounted to hiding GEICOs identity from the jury and
resulted in charades in trial[]. What she seems to take issue
with is the way in which the court framed the case.
Gibson cites a number of Florida cases to support her
contention that failure to advise the jury of GEICOs role in this
case is reversible error. GEICO responds that the Florida cases
do not mean that a plaintiff in Florida is entitled to solicit
testimony about why the carrier refused to pay policy limits.
Gibson relies principally on Lamz v. GEICO General
Insurance Co.,12 although she also cites virtually all of Lamzs
predecessors and progeny. The Lamzes, the victims of an
automobile accident, sued both the driver of the vehicle that
injured them and the vehicles owner.13 GEICO, the Lamzes
underinsured motorist carrier, was also joined as a defendant.14
The trial court denied the Lamzes request to specifically refer
to GEICO as a UIM carrier, reasoning that reference to GEICO as
the Lamzes insurance company was sufficient to alert the jury to
the position of the parties.15 The Supreme Court of Florida
disagreed, concluding:
Identifying the insurance company as merely a
plaintiffs insurer without clarifying the
full capacity in which it is being sued does
not make the jury fully aware of the
underinsured carriers posture in the
litigation. . . . We have made it clear that
the jury should know who the parties are, and
in this case, the jury was not fully apprised
of Geicos specific party status.[16]
Gibson argues that the jury was unaware of GEICOs
posture in the litigation reviewed here because the jury did not
know that GEICO was Gibsons UIM carrier. Lamz and the related
cases Gibson cites can be distinguished on the ground that they
involved more than two parties. Because there were multiple
defendants in Lamz, and because GEICO was identified as the
Lamzes insurance carrier, the relationship between GEICO and the
other defendants was not clear. The jury might have thought
GEICO, as the Lamzes insurer, had an interest in maximizing the
liability of the driver and owner of the vehicle that collided
with the Lamzes. In that case GEICOs interests would have been
aligned with the Lamzes for the purposes of determining the
liability of the tortfeasor. But since GEICO was the Lamzes UIM
carrier, GEICO actually had an interest in minimizing the
liability of the other defendants and therefore had interests
that were entirely adverse to the Lamzes. The extent of the
adversity between parties seems to be what the Supreme Court of
Florida meant by the underinsured carriers posture. The charades
in trial to which Gibson refers occur when the interests of the
parties are not clear and the jury might not realize that the
insurance companys interests are aligned with their co-
defendants. In this case, there is little chance of such
confusion. GEICO was the sole defendant. The only disputed
issue was the extent of Gibsons damages. It was apparent to the
jury that GEICO was trying to minimize Gibsons damages. There is
no reasonable possibility that the jury was led to believe that
GEICO and Gibson were not completely adverse parties. Thus the
Florida courts reasoning in Lamz is not applicable in Gibsons
case.
D. Did the Superior Court Abuse Its Discretion by Reducing
the Jury Verdict?
This court reviews the superior courts setoff decision
de novo.17 Gibson argues that the superior court improperly
reduced the jury verdict by $50,000. Gibson relies on AS
09.17.070, a statutory version of the collateral source rule that
allows judges, in certain circumstances, to reduce awards to
reflect unsubrogated payments from collateral sources. But AS
09.17.070 does not apply to this situation since payments from a
tortfeasors insurance company are not considered collateral
payments.18
Gibson agrees that UIM coverage may not duplicate
amounts payable under bodily injury coverage. However, Gibson
asserts that GEICO failed to show that the amount awarded by the
jury duplicates the $50,000 paid by Kudlacik. Gibson argues that
the jury verdict of $68,611 does not contain all of Gibsons past
medical expenses, past wage loss, and future damages and that
there was no double recovery because these uncompensated measures
of damages by the jury were included in the funds received from
the tortfeaser. Gibson asserts that the offset lacked a factual
basis.
The factual basis for a reduction of the jury award was
established by Gibsons claim. The thrust of a UIM claim is that
the insured suffered some quantifiable amount of damages and that
the tortfeasors insurance covered only a portion of those
damages. The reason Gibson sued GEICO was to establish that the
entire amount of her damages exceeded the $50,000 payment she had
already received. Since the whole point of the trial was to
determine the entire amount of damages, it was necessary to
reduce the ultimate jury award by $50,000. The special verdict
form indicates that the jury determined the damages suffered by
plaintiff . . . as a legal result of the March 13, 2001
automobile collision[.] The jury was required to enter dollar
amounts in each of the following categories: past medical
expenses, future medical expenses, past wage loss, future wage
loss, past pain and suffering, future pain and suffering, past
emotional distress, future emotional distress, past loss of
enjoyment of life, future loss of enjoyment of life, past
inconvenience, and future inconvenience. It is unclear exactly
what Gibson believes the jury might have overlooked given this
comprehensive itemization of all damages from the accident.
E. Did the Superior Court Abuse Its Discretion by
Calculating Prejudgment Interest Based on the Reduced
Amount?
Gibson argues that the superior court should have
calculated prejudgment interest based on the jurys finding of
total past damages of $64,161. Prejudgment interest is awarded
to compensate prevailing plaintiffs for the time value of money.
When Gibson received the $50,000 settlement, she received add-ons
that included prejudgment interest, compensating her for the
difference in value between the $50,000 in damage at the time of
the accident and the $50,000 she received at the time of
settlement. Since Gibson actually received the $50,000 and was
awarded prejudgment interest, she has already been compensated
for any loss in value of that portion of her damages that was
caused by the passage of time. In any case, GEICO as the UIM
carrier was only liable for damages in excess of $50,000.
Prejudgment interest was awarded on the excess. We see no error.
F. Did the Superior Court Abuse Its Discretion by
Calculating Attorneys Fees Based on the Reduced Amount?
An award of attorneys fees is reviewed for abuse of
discretion and will not be overturned unless manifestly
unreasonable, arbitrary or designed for a purpose other than
justly deserved compensation.19 Gibson argues that the superior
court should have calculated attorneys fees based on the jurys
verdict of $68,611 rather than the $18,611 that remained after
the superior court reduced the verdict by $50,000. Gibson relies
primarily on the language of the collateral source statute, AS
09.17.070, and Falconer v. Adams.20 GEICO argues that the
insurance contract limited attorneys fees in UIM cases to the
limit of liability of [UIM] coverage. GEICO also argues that
Alaska case law requires attorneys fees to be based on net, not
gross recovery.
In Falconer this court was called upon to interpret AS
09.17.070, which, as we have stated above, does not apply.21 Thus
this argument fails.
Gibson also argues that the superior courts award of
attorneys fees was an abuse of discretion. Gibson does not
allege bad faith and seems to argue that an upward variance would
have been reasonable, not that denial of the upward variance was
an abuse of discretion. Gibson focuses her argument on GEICOs
refusal to arbitrate. Gibson reasons that arbitration keeps
costs down and that [w]hen an insurer forces an expensive forum
upon its insured, the costs and risks of implementing that
expensive forum should be completely borne by the insurer.
Gibson is probably right that arbitration would have been a less
expensive way to resolve this case UIM claims often are
arbitrated. Moreover, it is possible that GEICO litigated this
case influenced by considerations apart from the case at bar a
ground warranting an adjustment in scheduled fees.22 But this is
only hinted at by Gibson, and it is countered by GEICO, which
notes that it made an offer of judgment that was only slightly
below the jury verdict. On balance, while enhanced fees might
have been reasonable, we are unable to conclude that it was an
abuse of discretion for the court to refuse to award them.
G. Did the Superior Court Abuse Its Discretion by Not
Reviewing the Clerks Cost Determination?
This court reviews a trial courts cost determination
for an abuse of discretion; demonstrating an abuse of discretion
requires a showing that the award was arbitrary, capricious,
manifestly unreasonable, or improperly motivated. 23
Gibson argues that the superior court was manifestly
unreasonable in upholding without a hearing the clerks reduction
of her costs. Gibson filed a cost statement, GEICO objected to
the amount of costs, and Gibson did not respond to GEICOs
objections. After reviewing [Gibsons] cost statement and
[GEICOs] opposition, the clerk reduced Gibsons requested cost
award. Gibson then filed a motion to review the cost bill, which
the court denied, stating:
[Gibson] did not defend her filing by
producing receipts to the clerk or addressing
[GEICOs] arguments . . . . Because she
denied the clerk this data, the court will
not now review [the clerks denial] de novo at
this time.
Gibsons argument is that the denying of her motion for
review of the cost award because she failed to produce receipts
to the clerk was error because a party does not have to provide
receipts to the clerk unless the clerk specifically requests
receipts. But Civil Rule 79(d)(2) states:
The clerk may deny costs requested by the
prevailing party on grounds that . . . (2)
the party failed to provide . . . adequate
supporting documentation following a request
by the clerk or another party[.]
(Emphasis added.) GEICO specifically requested additional
supporting documentation. Gibson did not respond with the
documentation GEICO requested. The clerks denial thus was
justified under the rule.
Gibson also challenges several specific cost awards.
Gibson appears to believe that GEICOs failure to respond to this
section of her opening brief means that GEICO concedes that
Gibsons arguments to this Court require remand to the trial
court. That assertion is without merit. An appellees failure to
respond to a particular argument is not a concession as to its
validity.24
Gibson argues that the clerk improperly denied Linas
subpoena fee on the grounds that the subpoena costs were not
necessarily incurred in the action. GEICO requested that process
server fees be reduced to $225 (the amount for five subpoenas
including mileage) unless Gibson provided an itemized receipt.
Gibson did not provide an itemized receipt. Therefore, the clerk
did not reduce the fees because the costs were not necessarily
incurred, but because Gibson failed to provide adequate
supporting documentation following a request by GEICO. As noted
above, this ground for denying costs is explicitly allowed under
Rule 79(d)(2).
Gibson also argues that it was plain error for the
clerk to reduce fees to $225 rather than award her $270 (the
amount for six subpoenas including mileage). Because GEICO
agreed to an award of $225, and because Gibson failed to provide
adequate supporting documentation following a request by GEICO,
the reduction was not clearly erroneous.
IV. CONCLUSION
The superior court did not abuse its discretion by
denying Gibsons motion to compel depositions of Smith and Lina or
by quashing Gibsons subpoena of Lina. The superior court did not
err in failing to advise the jury of GEICOs status as Gibsons UIM
carrier because there was no chance of confusion about the
posture of the parties. The superior court properly reduced the
jury verdict by the amount of Gibsons previous settlement and
properly calculated attorneys fees and prejudgment interest based
on the reduced amount. The superior court did not abuse its
discretion by refusing to review the cost award.
The superior courts judgment is AFFIRMED.
_______________________________
1 Shortly before trial GEICO made an offer of judgment
under Civil Rule 68 to settle the case for $15,000 plus
prejudgment interest, costs, and attorneys fees. Gibson did not
accept this offer.
2 Fletcher v. S. Peninsula Hosp., 71 P.3d 833, 844
(Alaska 2003).
3 S.S.M. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 3 P.3d 342, 344 (Alaska 2000).
4 Alaska R. Civ. P. 26(b)(1).
5 Alaska R. Civ. P. 26(b)(2)(I).
6 Alaska R. Civ. P. 26(b)(2)(iii).
7 Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).
8 54 P.3d 271 (Alaska 2002).
9 Id. at 279.
10 Id. at 280-81.
11 Id. at 281 (footnotes omitted).
12 803 So. 2d 593 (Fla. 2001).
13 Id. at 594.
14 Id.
15 Id.
16 Id. at 595-96 (emphasis added).
17 Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).
18 Chenega Corp. v. Exxon Corp., 991 P.2d 769, 790 (Alaska
1999) (In general, a court will not reduce a tortfeasors
liability to a victim when the victim receives compensation from
a collateral source. On the other hand, payments made to the
victim from non-collateral sources such as the tortfeasors
insurance company or a joint tortfeasor reduce the tortfeasors
liability.) (footnotes omitted).
19 Fairbanks Builders, Inc. v. Sandstrom Plumbing &
Heating, Inc., 555 P.2d 964, 966-67 (Alaska 1976) (footnotes
omitted).
20 974 P.2d 406 (Alaska 1999).
21 Id. at 411; see supra note 18 and accompanying text.
22 Civil Rule 82(b)(3)(J) provides:
The court may vary an attorneys fee
award calculated under subparagraph (b)(1) or
(2) of this rule if, upon consideration of
the factors listed below, the court
determines a variation is warranted:
. . .
(J) the extent to which the fees
incurred by the prevailing party suggest that
they had been influenced by considerations
apart from the case at bar, such as a desire
to discourage claims by others against the
prevailing party or its insurer[.]
23 Sourdough Dev. Servs., Inc. v. Riley, 85 P.3d 463, 466
(Alaska 2004) (quoting Fernandes v. Portwine, 56 P.3d 1, 4-5
(Alaska 2002)).
24 In fact an appellees brief is not mandatory in the
sense that an appeal will be resolved against an appellee if it
does not file a brief. This court has denied relief to
appellants in a number of cases in which no appellees brief was
filed. See, e.g., Municipality of Anchorage v. Suzuki, 41 P.3d
147 (Alaska 2002); Riddell v. Edwards, 32 P.3d 4 (Alaska 2001);
Calvo v. Calhoon, 559 P.2d 111 (Alaska 1977).
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