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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Uncle Joe's, Inc. v. L.M. Berry and Company (04/06/2007) sp-6115
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
| UNCLE JOES INCORPORATED, | ) |
| ) Supreme Court Nos. S- 11516/11545 | |
| Appellant and | ) |
| Cross-Appellee, | ) Superior Court No. |
| ) 3AN-03-06074 CI | |
| v. | ) |
| ) O P I N I O N | |
| L.M. BERRY AND COMPANY, | ) |
| d/b/a THE BERRY COMPANY, | ) No. 6115 - April 6, 2007 |
| ) | |
| Appellee and | ) |
| Cross-Appellant. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Jeffrey J. Jarvi, Anchorage,
for Appellant and Cross-Appellee. Douglas S.
Parker, Dennis J. Efta, Preston Gates &
Ellis, LLP, Anchorage, for Appellee and Cross-
Appellant.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
Uncle Joes, Inc., appeals and L.M. Berry and Company
cross-appeals in a case arising from errors in entries for Uncle
Joes Pizzerias in both the White and Yellow Pages of the 2002-
2003 Anchorage telephone directory. Uncle Joes challenges the
grant of summary judgment to Berry on the interpretation of an
exculpatory tariff, the superior courts refusal to order Berry to
produce attorney-client communications, and the award of
attorneys fees and costs to Berry. Berry appeals from an order
on summary judgment declaring the limitation of liability
provision in its pre-printed order form for Yellow Pages
advertisements invalid. We reverse the superior courts decision
on the effect of the tariff. This requires that the award of
attorneys fees also be vacated. Uncle Joes discovery argument is
moot as is Berrys argument regarding the limitation of liability
clause.
The White and Yellow Pages Directory Errors
Uncle Joes operates five pizzerias in Anchorage. It is
primarily a take-out and delivery business relying heavily on the
promotion of its name and telephone number. Berry publishes
telephone directories for telephone companies throughout the
United States. Berry contracted with Alaska Communications
Systems (ACS) in the mid-1990s to publish Anchorage telephone
directories. By 2002 the ACS directory was used by eighty-six
percent of customers in the area.
An error in Uncle Joes listing appeared in the 2002-
2003 White Pages Directory published by Berry. The address and
telephone number for each of Uncle Joes five pizzeria outlets was
listed, but the name Uncle Joes Pizzeria was omitted. Without the
business name, Uncle Joes information was listed under the name
Uncle George the Clown. As a result, Uncle Joes claims that it
lost revenues of $435,153.64 between June 1, 2002, and June 1,
2003, and was forced to lay off three employees and relocate its
corporate office to the home of its president.
A minor error concerning Uncle Joes also appeared in an
advertisement in the 2002-2003 Yellow Pages Directory, also
published by Berry. Uncle Joes advertisement was published with
the graphic designers digital watermark still included, resulting
in a faint cross within a circle design appearing in the middle
of the advertisement. Uncle Joes had ordered the Yellow Pages
advertisement on Berrys Directory Advertising Order, which
contained standard terms and conditions pre-printed on the
reverse side. Section 8 of these conditions limits the liability
of both ACS and Berry for errors in printed advertisements to the
amount paid by the advertiser for said item of advertising and
further applies the limitation of liability to any and all claims
whether in contract, tort, strict liability or otherwise, and to
any loss of business, profits, or additional advertising costs
incurred.
Proceedings
Based on these errors, Uncle Joes filed suit against
Berry under theories of negligence, gross negligence, and
defamation, seeking compensatory and punitive damages.
Subsequently, Uncle Joes filed a motion for partial summary
judgment. In this motion Uncle Joes sought a ruling that Berrys
affirmative defense that its liability is limited by the
provisions of an exculpatory tariff filed by ACS1 lacked merit.
Similarly, the motion challenged Berrys affirmative defense that
its liability is limited by section 8 of the conditions in its
Yellow Pages order form. Berry cross-moved for summary judgment
on both affirmative defenses, seeking dismissal of Uncle Joes
claims. While these motions were pending and as trial
approached, Uncle Joes made a motion to compel the production of
documents that Berry had withheld from discovery under the
attorney-client privilege. Uncle Joes argued that the fraud
exception to the attorney-client privilege required production of
the documents. Uncle Joes theory was that Berry had been
deceiving Alaska customers by using the limitation of liability
clause in its Yellow Pages order form while knowing that such
clauses had been ruled invalid in Municipality of Anchorage v.
Locker.2 This deceit, Berry argued, amounted to fraud under the
fraud exception to the attorney-client privilege and thus the
documents in question were not shielded by the privilege.
In an order dated April 22, 2004, the superior court
denied Uncle Joes motion for partial summary judgment concerning
the tariff and granted Berrys cross-motion for summary judgment
on that issue. The court denied Berrys cross-motion for summary
judgment concerning the Yellow Pages liability limitation clause
and implicitly granted Uncle Joes motion for partial summary
judgment on that issue.
On April 26, 2004, the superior court denied Uncle Joes
motion to compel, ruling that the civil fraud exception does not
apply in this case.
On May 14, 2004, the parties stipulated to a final
judgment, which provided that Uncle Joes would recover nothing
from Berry for its claims based on the omission of Uncle Joes
name from the White Pages and that Uncle Joes shall recover from
[Berry] nominal damages in the amount of $10.00 for [Uncle Joes]
negligence claim based on the 2002-2003 ACS Anchorage Yellow
Pages. The stipulation left for adjudication the question of the
award of fees and costs and provided as follows with respect to
appeals: This order shall constitute an appealable final
judgment; specifically, all rulings made in the Courts Order
dated April 22, 2004, shall be appealable by either party. The
stipulation was so ordered by the superior court.
Subsequent to entry of the stipulated judgment, Berry
moved for an award of attorneys fees and costs based on an offer
of judgment that it had made pursuant to Civil Rule 68 that Uncle
Joes had not accepted. The court granted Berrys motion and
awarded attorneys fees of $54,266 and costs of $5,056 to Berry.
Uncle Joes now appeals from the courts ruling of April
22, 2004, that the exculpatory tariff applied to Berry, from the
courts refusal to require the production of attorney-client
communications, and from the award of attorneys fees and costs to
Berry. Berry cross-appeals, claiming that the court erred in its
order of April 22, 2004, when it ruled that the limitation of
liability clause in the Yellow Pages order form was invalid.
The April 22, 2004 Decision of the Superior Court
The superior courts decision with respect to whether
the exculpatory clause of the tariff applied to Berry was as
follows:
Uncle Joes argues that the Tariff Advice
only applies to ACS and not to the Berry
company. Berry on the other hand contends
that the focus should be on the activity
regulated and not the entity that performs
the function. It is undisputed that ACS does
not publish its own telephone directory.
Instead, ACS has had a longstanding
relationship with the Berry company as the
publisher of its directories. It is also
undisputed that the [Regulatory Commission of
Alaska (RCA)] is aware of this relationship
and that ACS does not publish its own
directories. This issue is substantially
similar to the one presented in Municipality
of Anchorage v. Locker, 723 P.2d 1261, 1262
(Alaska 1986)[,] where Yellow Pages
advertisers whose ads were published
incorrectly sued the telephone utility and
its publisher for damages. In Locker, the
Court treated the publisher as the utilitys
agent. Id. at 1261, fn 1. In Simpson v.
Phone Directories Co., 729 P.2d 578 (Or. App.
1986), the court drew a distinction between
the regulated service of published phone
listings as opposed to unregulated phone
listings. Where the listing is regulated,
limited liability was imposed. This court
finds that the publication of the White Pages
is governed by the RCA and imposes limited
liability on Berry. Accordingly, Berry is
subject to the limited liability protection
contained in Tariff Advice 416-120.
The courts decision with respect to the liability-
limiting provision of the Yellow Pages order form was as follows:
However, this liability limitation only
applies to statutorily required services,
i.e., the alphabetical listings. As the
Alaska Supreme Court stated in Locker:
Yellow Pages
advertisements are not a
telecommunication
service. To apply the
tariff provision to such
advertisements we would
imply that [the RCA]
could regulate the Yellow
Pages. We decline to
imply such regulatory
authority. The
administrative
regulations explicitly
make publication of the
Yellow Pages optional.
Id. at 1264.
The next question, then, is whether
Berrys contract for Yellow Pages advertising
with Uncle Joes will shield it from liability
for the alleged mistake in the 2002/2003 ACS
Yellow Pages. When presented with a similar
question, the Court in Locker answered in the
negative, reasoning that the contract entered
into between the utility then ATU and its
advertisers was unconscionable. Id. at 1266-
1267.
Berry invited this court to overrule
Locker. At the time the Alaska Supreme Court
decided Locker, the court was aware that it
was adopting the minority position. Although
some of the jurisdictions relied on in Locker
have since changed to the majority position,
it is not the place of this court to
disregard clearly decided Alaska law.
Further, the factors that led the Court
in Locker to conclude that publication of
Yellow Pages is affected with a public
interest have not changed: Yellow Pages
still serve the public, and Yellow Pages
advertising still provides an affordable way
for small businesses to advertise. Courts
are permitted to give heightened scrutiny to
businesses that hold themselves out as
willing to provide such services.
Accordingly, Berry, as a provider of a public
service, may not shield itself from its own
negligence. Whether or not a duty was
breached and the amount of damages, if any,
are questions for a jury to decide.
Therefore, this court concludes that
Plaintiffs damages for the omission of its
name from the regular listings are limited by
tariff, while any provable damages as a
result of the blemish in the Yellow Pages are
not so limited.
The Exculpatory Clause in the Tariff Does Not Apply to Berry
Uncle Joes argues that the tariff does not extend to
Berry because exculpatory and limitation of liability clauses are
disfavored in Alaska and are strictly construed against the
drafter. One consequence of the rule of strict construction is
that ambiguities in exculpatory clauses will, where reasonably
possible, be resolved against the drafter. Uncle Joes argues
that this rule applies to tariffs and that the tariff in this
case is ambiguous with respect to whether it applies to Berry
because it mentions only ACS, not those with whom ACS contracts.
Berry argues that the exculpatory tariff does apply to
Berry even though it does not refer to Berry by name or
description. In support of this position Berry argues that in
Municipality of Anchorage v. Locker,3 this court treated the
liability of the telephone companys contract publisher the same
as the liability of the telephone company. Berry also argues
that the RCA has jurisdiction over the White Pages publication
and that a tariff should be construed like a statute, rather than
strictly against the drafter. Berry contends that exposing
contract publishers to liability for mistakes would subject them
to inordinate expenses, which ultimately would be borne by
telephone customers in the form of elevated rates. Berry
concludes:
In view of the statutory framework under
which the RCA operates and the related policy
concerns, [the court] interpreting the ACS
Tariff should determine if the Tariff is
consistent with and reasonably necessary to
carry out the purposes of the statutory
provisions, and whether the [Tariff] is
reasonable and not arbitrary. (Quotations
and citation omitted.)
The tariff explicitly applies only to Alaska
Communications Systems. It does not purport to apply to entities
with which ACS contracts. Thus, under a literal application of
the tariff, only ACS is exculpated from liability arising from
errors or omissions in its directories. Only if the tariff is to
be broadly read could contractors with ACS also be brought within
the coverage of the tariff. We believe that either a literal
reading in which the tariff applies only to ACS or a broadened
reading in which the tariff also applies to entities that print
ACS directories under contract with ACS is reasonably possible.
In this sense, then, the tariff is ambiguous.
Uncle Joes is correct that in a non-tariff contractual
setting this court has held that exculpatory language should be
narrowly construed. Our case law teaches that the law disfavors
and sometimes positively forbids4 contractual exculpatory
clauses.5 As we stated in Bank of California v. First American
Title Insurance Co.:
[A]s a general rule, contractual limitations
on liability for negligence must be clearly
set forth. Dresser Indus. Inc. v. Foss
Launch & Tug Co., 560 P.2d 393, 395 (Alaska
1977). If the defendant seeks . . . to
escape responsibility for the consequences of
his negligence, then [the disclaimer] must so
provide, clearly and unequivocally, as by
using the word negligence itself. Kissick
v. Schmierer, 816 P.2d 188, 191 (Alaska
1991).[6]
In Kissick we stated that an agreement purporting to exculpate
the drafter from liability for negligence or tortious conduct is
not effective unless the agreement is clear, explicit and
comprehensible in each of its essential details.7
There are a number of reasons why contractual
exculpatory clauses are disfavored and strictly construed.
First, they alter the normal rule that a party is responsible in
damages for its negligent conduct.8 Second, they are typically
imposed on a take-it-or-leave-it basis, rather than negotiated.9
Third, the party benefitting from the clause is usually much
stronger economically than the party left without legal recourse.10
Fourth, the party benefitting from the clause usually has drafted
it, and it is regarded as fair to construe ambiguities against
the party that is responsible for them.11
Here, the clause is contained in a tariff rather than
in a contract. The question is whether the rule of strict
construction that we have applied in a contractual setting
applies to tariffs.
Tariffs in Alaska, as in most other jurisdictions, are
drafted by the utility. They become applicable unless rejected
by the RCA within forty-five days after they are filed.12 Tariffs
control the terms and conditions under which a utility offers its
services to the public.13 Tariffs containing liability
limitations or exculpatory provisions are thus like contracts
containing similar provisions in at least two respects. They
purport to govern the relationship between the parties, and they
are drafted unilaterally by the party seeking the benefit of the
provision.
Numerous authorities in other jurisdictions indicate
that when a tariff is ambiguous it should be construed like a
contract and thus favorably to the customer and against the
drafter. As the Supreme Court of Illinois has recently stated:
[B]ecause the utility company drafts a tariff, it is generally
accepted that language in a tariff, especially exculpatory
language, is to be strictly construed against the utility company
and in favor of the customer.14 This rule is widely recognized.15
We think that it should be applied in Alaska.
We adopt the rule that exculpatory clauses in tariffs
should be strictly construed against the utility and in favor of
the customer because all the reasons for disfavoring such clauses
in contracts also apply to tariffs. Tariff exculpatory clauses
alter the normal rule that an entity is responsible for the
consequences of its negligent conduct; they are imposed on a take-
it-or-leave-it basis, without the possibility of negotiation;
they benefit the typically economically stronger utility; and, as
they are also drafted by the utility, it is fair to construe
uncertain language against the utility whose imprecise
draftsmanship has created the uncertainty.
Berry relies heavily on one case, Waters v. Pacific
Telephone Co., which declined to follow a rule of strict
construction in connection with a liability-limiting clause in a
tariff. 16 In Waters the California Supreme Court held that a
liability-limiting clause in a tariff should be enforced in a
negligence claim even though it did not specify that it applied
to cases of negligence on the part of the utility. The court so
held because the California Public Utilities Commission had
adopted a policy of limiting the liability of telephone utilities
for acts of ordinary negligence and relied on the validity of
liability-limiting clauses in setting rates.17 In addition, the
court noted that subsequent to the events that led to the filing
of the Waters case, the Public Utilities Commission issued a rule
requiring telephone utilities to adopt a standard form limitation
of liability provision in their tariffs.18 No similar situation
exists in Alaska.
Berry does not argue that the RCA has adopted a policy
of limiting the liability of utilities for acts of negligence or,
more pertinent to the present case, limiting the liability of
entities that contract with utilities. Further, unlike the
California commission, the RCA now requires that utilities
publish in online tariffs a statement that any limitation of
liability clause does not prevent a court from determining the
validity of the limitation of liability provision, or of any
exculpatory clause, under applicable law.19 The RCA thus, far
from approving and requiring the inclusion of limitation of
liability clauses as in Waters, has recognized that limitation of
liability provisions and exculpatory clauses included in tariffs
might not be valid or enforceable and that questions concerning
their validity are subject to judicial determination.20
Berrys reliance on the fact that in Locker this court
noted that we would treat the utilitys contract publisher of the
Yellow Pages directory the same as the utility does not mean that
the tariff in this case protects Berry. In Locker the tariff in
question was similar to that in this case. It provided that
there would be no liability to the utility arising from errors in
its directories except for charge listings and in charge listings
its liability should be limited to a refund of the monthly rate
paid. The error complained of in Locker was an error in the
Yellow Pages, a charge listing. We decided, despite the language
of the tariff, that the tariff did not apply to the Yellow Pages
because the RCA lacked the power to regulate classified
advertisements.21 The tariff therefore did not apply to protect
either the utility or the directory publisher. We had no
occasion to decide the question presented here, which is,
assuming that the tariff protects the utility, does it also
protect the publisher with which the utility contracts. Locker
thus is not helpful to Berrys position.
Berrys argument that the tariff should apply to it
because otherwise telephone rates will increase resembles an
argument that was made and rejected in Locker. There the utility
argued that the limited liability clause should be considered
part of its tariff because such limitation directly affects the
rates it charges. Without such a limitation, it asserts, the
overall rates for its service might increase. Therefore, [the
utility] reasons, the [RCA] properly accepted the tariff limiting
Yellow Pages liability under its authority to regulate overall
rates.22 We did not take issue with the proposition that not
applying the clause could have an effect on the utilitys revenues
and costs and thus influence rates. But we held that any such
effect was not in itself sufficient to require application of the
tariff to Yellow Pages advertising: A mere tangential effect
upon overall rates will not suffice to limit categorically [the
utilitys] liability for negligence.23
Here, similarly, imposing liability on Berry for
negligent mistakes made in publishing a directory might
ultimately mean that it is more costly or less profitable for ACS
to issue telephone directories. But this is only a possibility.
Under the existing contract between ACS and Berry the risk of
publishing errors is allocated to Berry, and Berry is required to
carry liability insurance to guard against such errors. ACS and
Berry have therefore already taken steps to guard against
liability for publishing errors. They have presumably also
already absorbed the costs associated with these steps. The
possibility that there will be increased costs to ACS resulting
from not applying the tariff to Berry that will ultimately affect
rates seems here to be not only tangential, as in Locker, but
distinctly speculative.
For these reasons we conclude that a rule of strict
construction should be employed to construe the exculpatory
tariff. When such a rule is employed it is clear that the
exculpatory tariff does not protect Berry. As already noted,
Berry is not mentioned either by name or by description in the
tariff. With reference to Berry, therefore, the tariff is not an
instrument in which the intent to release a party from liability
for future negligence is conspicuously and unequivocally
expressed.24
Other Issues
Because as the case now stands Berry is not the
prevailing party, the award of attorneys fees and costs must be
vacated.
Uncle Joes has waived the right to appeal the superior
courts refusal to compel production of attorney-client
communications. Parties generally cannot appeal stipulated
judgments.25 In a civil case, at most, a party may appeal from a
stipulated judgment where the stipulation expressly reserves an
issue for appeal.26 The stipulated judgment here reserves the
right to appeal only the April 22, 2004 summary judgment order,
not the April 26, 2004 denial of the motion to compel. Without
an indication that the parties intended to reserve the right to
appeal this order, this court will not consider it.
Berrys contention that the court erred in refusing to
enforce the Yellow Pages liability limitation clause is moot. A
case is moot if the party bringing the action would not be
entitled to any relief even if it prevailed.27 If Berry prevailed
on this claim, it would still be liable under its contract with
Uncle Joes for the cost of the ads. The nominal damages awarded
Uncle Joes by stipulation, $10, are less than the amount Uncle
Joes paid Berry for the ad. Therefore, even if the limitation of
liability clause were valid the award to Uncle Joes would be
sustained and Berry would be entitled to no relief.
Conclusion
For the reasons stated, the judgment of the superior
court dismissing Uncle Joes claim with respect to the error in
the White Pages is REVERSED and the award of costs and attorneys
fees to Berry is VACATED. The judgment awarding Uncle Joes
nominal damages for an error in the Yellow Pages is AFFIRMED.
This case is REMANDED to the superior court for further
proceedings consistent with this opinion.
_______________________________
1 The exculpatory tariff provided:
Errors No liability arising from errors or
omission [sic] in the making up or printing
of its directories shall be attached to
Alaska Communications Systems except in the
case of charge listings. After reasonable
notice is provided in writing to Alaska
Communications Systems in connection with
these, its liability shall be limited to a
refund at the monthly rate for each listing.
2 723 P.2d 1261 (Alaska 1986).
3 723 P.2d 1261, 1262 n.1 (Alaska 1986).
4 We have indicated that exculpatory provisions are
prohibited, as distinct from being merely narrowly construed,
where they are imposed on consumers by a business affected with
the public interest. Thus, in Bank of California v. First
American Title Insurance Co., we held that a title companys
effort to disclaim liability for negligence was ineffective
because [a] title company is engaged in a business affected with
the public interest and cannot, by an adhesory contract,
exculpate itself from liability for negligence. 826 P.2d 1126,
1130 (Alaska 1992) (quoting White v. Western Title Ins. Co., 710
P.2d 309, 315-16 (Cal. 1985)). In support of the same
proposition we also cited Locker, 723 P.2d at 1265-66, giving the
following parenthetical explanation: [E]xculpatory clauses are
unconscionable where circumstances indicate a vast disparity of
bargaining power coupled with terms unreasonably favorable to the
stronger party. Bank of Cal., 826 P.2d at 1130.
5 See Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004);
Bank of Cal., 826 P.2d at 1130; Dresser Indus. v. Foss Launch &
Tug Co., 560 P.2d 393, 395-96 (Alaska 1977).
6 826 P.2d at 1130.
7 816 P.2d at 191.
8 E.g., Valhal Corp. v. Sullivan Assocs., 44 F.3d 195,
202 (3d Cir. 1995) (holding exculpatory clauses are disfavored
and strictly construed since parties should not be lightly
permitted to shed their liability for negligence).
9 See, e.g., Kissick, 816 P.2d at 191 (holding that
exculpatory provisions should be strictly construed when found in
contracts of adhesion).
10 E.g., Locker, 723 P.2d at 1265 (holding that the party
invoking exculpation possesses a decisive advantage of bargaining
strength against any member of the public who seeks his
services).
11 E.g., Restatement (Second) of Contracts 206 cmt. a
(1981) (stating that construing ambiguities against the drafter
discourages them from surreptitiously including terms to which
the non-drafting party did not agree).
12 AS 42.05.361(c).
13 AS 42.05.371.
14 Adams v. N. Ill. Gas Co., 809 N.E.2d 1248, 1271 (Ill.
2004).
15 See, e.g., Komatsu, Ltd. v. States S.S. Co., 674 F.2d
806, 811 (9th Cir. 1982) (As the carrier is the tariffs author,
ambiguities in its language must be strictly construed against
the carrier.); Norfolk & W. Ry. Co. v. B. I. Holser & Co., 629
F.2d 486, 488 (7th Cir. 1980) ([T]he tariff should be construed
strictly against the carrier since the carrier drafted the
tariff; and consequently, any ambiguity or doubt should be
decided in favor of the shipper.); Contl Can Co. v. United
States, 272 F.2d 312, 315 (2d Cir. 1959) (holding [a]mbiguity
should be resolved against the carrier where the tariff, having
been written by the carrier, is vulnerable against the carrier if
the tariffs meaning is ambiguous) (quotations omitted); United
States v. Interstate Commerce Commn, 198 F.2d 958, 966 (D.C. Cir.
1952) (Since the tariff is written by the carrier, all
ambiguities or reasonable doubts as to its meaning must be
resolved against the carrier.); Natl Telecomms. Assn v. Am. Tel.
& Tel. Co., 1997 WL 466556, at *4 (S.D.N.Y. 1997) (A tariff
between a carrier and its customer is a contract and as such is
to be interpreted according to general principles of contract
law. Under general principles of contract law, I must resolve
ambiguities in the tariff language against the carrier and in
favor of the customer.) (citations omitted); Pink Dot, Inc. v.
Teleport Commcns Group, 107 Cal. Rptr. 2d 392, 397 (Cal. App.
2001) (The rule has been stated many times that if there is an
ambiguity in a tariff any doubt in its interpretation is to be
resolved in favor of the [nondrafter and against the utility].);
S. Pac. Co. v. U.S. Steel Corp., Consol. W. Steel Div., 40 Cal.
Rptr. 135, 139 (Cal. Dist. App. 1964); Transmix Corp. v. S. Pac.
Co., 9 Cal. Rptr. 714, 719 (Cal. Dist. App. 1961) (Tariffs are
strictly construed . . . .); State Farm Fire & Cas. Co. v. S.
Bell Tel. & Tel. Co., 262 S.E.2d 895, 897 (Ga. 1980) (referring
to tariffs, the court stated: Prepared by [the utility], they
must be strictly construed in favor of the customer. If a
contract is of doubtful meaning, it is to be construed against
the party who drew it. Generically, the Tariff must be viewed as
a contract between [the utility] and its customers, affirmed on
behalf of the latter by the Public Service Commission.)
(quotations and citation omitted); Estate of Pearson ex rel.
Latta v. Interstate Power & Light Co., 700 N.W.2d 333, 343 (Iowa
2005) (If a tariff is ambiguous, we strictly construe the
language of a tariff against the drafter, the utility.); Marriott
Corp. v. Chesapeake & Potomac Tel. Co. of Md., 723 A.2d 454, 460
(Md. Spec. App. 1998) (In the event of an ambiguity, a tariff,
like any other contract, must be strictly construed against the
drafting party.); Info Tel Commcns, LLC v. U.S. W. Commcns, Inc.,
592 N.W.2d 880, 884 (Minn. App. 1999) ([I]n interpreting a tariff
. . . . where there is ambiguity, the tariff language should be
construed strictly against its author . . . .); Krasner v. N.Y.
State Elec. & Gas Corp., 457 N.Y.S.2d 927, 929 (N.Y. App. Div.
1982) ([T]ariffs of a public utility are considered as part of
the contract between the customer and the utility. . . . The
tariff attempts to limit defendants liability for its own
negligence and such exculpatory clauses are strictly construed
against the party seeking exemption from liability. Such strict
construction is even more necessary in view of defendants
superior bargaining position.) (citations omitted); Josephson v.
Mountain Bell, 576 P.2d 850, 852 (Utah 1978) ([Tariffs] should be
construed strictly against the utility . . . .).
16 523 P.2d 1161 (Cal. 1974).
17 Id. at 1162, 1167.
18 Id. at 1165-66.
19 3 Alaska Administrative Code (AAC) 52.367(c)(6)
provides:
(c) A registered entitys online tariff
must include a table of contents and a
section for setting out notices of any
proposed tariff revisions, and must set out
in plain language a statement of the
following:
. . .
(6) a statement that any limitation
of liability provision in the online
tariff is subject to the following:
(A) a registered entity may
not disclaim liability for its own
gross negligence or willful
misconduct;
(B) inclusion of a limitation
of liability provision in a
registered entitys online tariff
does not prevent a court of
competent jurisdiction from
(i) determining the validity
of the limitation of liability
provision, or of any
exculpatory clause, under
applicable law; or
(ii) adjudicating negligence
and consequential damage
claims.
20 Although 3 AAC 52.367 did not become effective until
2003 and the acts giving rise to the present case took place in
late 2001 and 2002, the regulation is evidence that the RCA has
not adopted a policy holding that liability-limiting or
exculpatory clauses are either essential or necessarily valid.
21 Locker, 723 P.2d at 1264.
22 Id.
23 Id.
24 Moore v. Hartley Motors, Inc., 36 P.3d 628, 633 (Alaska
2001) (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska
1991)). Further, the tariff does not explicitly disclaim
liability due to negligence, either of ACS or other entities, as
required by our case law. See Moore, 36 P.3d at 633; Kissick,
816 P.3d at 191.
25 See, e.g., Legge v. Greig, 880 P.2d 606, 607-09 (Alaska
1994) (no right to appeal from voluntary dismissal following an
adverse ruling where neither the opposing party nor the superior
court agreed to appealability); Singh v. State Farm Mut. Auto.
Ins. Co., 860 P.2d 1193, 1197 (Alaska 1993) ([A] right to appeal
is waived by stipulating to judgment.).
26 Legge, 880 P.2d at 608-09; cf. Pratt & Whitney Can.,
Inc. v. Sheehan, 852 P.2d 1173, 1174-75 (Alaska 1993)
(considering on appeal, without discussing appealability, a
strict liability claim that Pratt had not contested in a
stipulated judgment where Pratt expressly reserved the right to
appeal this claim); City of Kenai v. Kenai Peninsula Newspapers,
Inc., 642 P.2d 1316 (Alaska 1982) (allowing, without discussing
appealability, appeal of a stipulated preliminary injunction that
the parties expressly reserved for appeal).
27 OCallaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)
(citing Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328,
1329 n.2 (Alaska 1995)).
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