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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Turner v. Municipality of Anchorage (11/16/2007) sp-6200
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
| EVADINE TURNER, | ) |
| ) Supreme Court No. S- 11958 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-03-7550 CI | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) No. 6200 - November 16, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Jeffrey J. Barber, Law Offices
of Steve Sims, Anchorage, for Appellant.
Scott Hendricks Leuning, Clapp Peterson Van
Flein Tiemessen & Thorsness LLC, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Evadine Turner sued the Municipality of Anchorage for
injuries she sustained when a municipal vehicle struck her car
from behind. The case was tried to a jury. Turner appeals
various trial court rulings. We conclude that the court did not
err in admitting into evidence expert testimony that went to
causation; that it was not reversible error to reject Turners
requested jury instructions; that it was not error to deny
Turners directed verdict, JNOV, and new trial motions; and that
it was not error to calculate attorneys fees from the date of the
municipalitys offer of judgment, because the offer was valid. We
also conclude that because the municipality adequately
established that a pretrial payment it made to Turners subrogated
insurer was for medical expenses covered by the jurys damages
award, it was not error to grant the municipality an offset for
that payment. We therefore affirm the judgment below.
II. FACTS AND PROCEEDINGS
In July 2001 a Municipality of Anchorage vehicle rear-
ended a car driven by Evadine Turner. Turner underwent treatment
over the next year for a series of medical and dental problems,
including headaches, neck and back pain, flare-up of her temporal
mandibular disease (TMD), loose crowns and porcelain fractures on
several teeth, and a false aneurysm.
Her TMD and dental procedures are of special relevance
here. In an August 14, 2001 visit with her regular physician,
Dr. John Hunter, Turner complained of loosening of dentition or
left mandible. She visited Dr. Richard Bell in Portland, Oregon,
in October for problems relating to her temporomandibular joint
(TMJ). Turner had a prior history of TMJ problems. Dr. Bell
recommended nonsurgical therapy. Turner returned to Dr. Bell on
November 15, and he referred her to a prosthodontist, Dr.
Catherine Lach. Turner did not see Dr. Lach, but on November 19
she visited a different prosthodontist, Dr. Nader Rassouli, of
Portland, Oregon. Dr. Rassouli performed extensive
reconstructive dental procedures over the next year. Dr.
Rassoulis total bill exceeded $60,000. On January 4, 2002, Dr.
Rassouli sent a letter to Johanna Grasso at Ward North America,
the municipalitys claims adjuster. The letter explained that
Turner had multiple loose crowns and bridges with porcelain
fractures on several teeth with unstable occlusion following the
accident.
On May 14, 2002, Ward North America paid $4,345.08 to
Turners subrogated auto insurer, United Services Automobile
Association (USAA). The payment was for subrogated expenses for
these services: (1) Turners emergency room treatment at Valley
Hospital; (2) diagnostic tests of Turners chest, spine, and head;
and (3) an MRI of Turners TMJ and X-rays ordered by Dr. Bell.
Turner sued the municipality in May 2003, alleging
damages in excess of $100,000. On October 27, 2004 the
municipality made a $45,000 offer of judgment under Alaska Civil
Rule 68 . Turner did not accept the offer, and the case was
tried to a jury.
The municipalitys trial brief admitted liability for
the accident and disclosed that the municipality had compensated
Turner for damage to her car and had reimbursed USAA (Turners
insurer) for its medical payments. The municipality also
acknowledged in its closing jury argument that the accident might
have been responsible for Turners TMD flare-up. But the
municipality contested causation and damages as to Turners dental
work and false aneurysm.
The jurys verdict awarded Turner $12,895 for past
medical costs and $10,500 for past non-economic damages (pain and
suffering). After the verdict was announced but before the jury
was dismissed, Turner asked the court to require the jury to
allocate past medical expenses. The court denied her motion.
Turner also asked the court to consider her directed verdict
motion. The court denied this motion as well.
Turner moved for a judgment notwithstanding the verdict
(JNOV) and alternatively requested a new trial. The municipality
moved for entry of final judgment and requested an offset for the
$4,345.08 it had paid USAA. It also requested costs and
attorneys fees dating from its offer of judgment, per Alaska
Civil Rule 68.
Turner opposed the offset motion and argued that the
offer of judgment was invalid in part because the municipality
had not disclosed the USAA payment. The court denied Turners
JNOV and new trial motions and entered final judgment granting
the offset, naming the municipality as the prevailing party, and
granting it costs and attorneys fees. Turner moved for
reconsideration and asked the court to sanction the municipality
under Alaska Civil Rule 37 for failing to disclose the USAA
payment. The trial court denied the sanctions motion and the
reconsideration request. Turner appeals.
III. DISCUSSION
A. It Was Not an Abuse of Discretion To Admit Dr.
Trueloves Testimony into Evidence.
A tortfeasor is liable for injuries to the victim
caused by the negligent actions of third parties in rendering
reasonably necessary aid.1 Turner contends that this principle
establishes that the testimony of the municipalitys expert, Dr.
Edmund Truelove, was inadmissible as irrelevant and prejudicial
because its purpose and effect were to show that her
prosthodontist, Dr. Rassouli, rendered negligent treatment after
the accident.2 She therefore argues that it was reversible error
to admit Dr. Trueloves testimony into evidence.
When admissibility turns on a question of fact we
review the evidentiary ruling for abuse of discretion.3
Dr. Trueloves testimony went to the disputed fact issue
of whether the accident caused the conditions treated by Dr.
Rassouli; his testimony was therefore relevant, satisfying Alaska
Evidence Rule 402.4 Relevant evidence may be excluded if it is
unduly prejudicial, but Turner has not demonstrated that the risk
of prejudice outweighed the probative value of Dr. Trueloves
testimony.5 There was no significant danger that the jury would
misinterpret Dr. Trueloves testimony as accusing Dr. Rassouli of
negligence because Dr. Truelove neither criticized Dr. Rassoulis
care nor asserted that Dr. Rassouli had negligently treated
Turner. Nor did the municipality try to use Dr. Trueloves
testimony for an improper purpose; the municipality used it to
make the causal argument that the dental work Dr. Rassouli
performed was not required by the accident and that his treatment
was for wholly unrelated problems.6 We therefore conclude that
the trial court did not abuse its discretion by admitting the
testimony into evidence.
B. Turner Was Not Harmed by the Trial Courts Refusal To
Give a Jury Instruction Based on Restatement (Second)
of Torts 457.
The trial court gave the jury an instruction based on
Alaska Pattern Civil Jury Instruction 20.02, instructing it to
compensate the plaintiff for the reasonable expense of necessary
medical care related to the accident.7 Turner contends that it
was error not to give her suggested instruction, which was based
on the Restatement (Second) of Torts 457.8 Turners requested
instruction would have told the jury it could compensate Turner
for [a]ggravation of the original injury resulting from the
failure of others to use reasonable care in providing medical or
hospital treatment of the original injury.
We review jury instructions de novo when a timely
objection is made.9
Turner asserts that her suggested instruction was
necessary because the jury could have understood Dr. Trueloves
testimony as implying that Dr. Rassouli was negligent in his
medical care. But as noted above, there was no significant
danger the jury would draw such an inference. Neither Dr.
Trueloves testimony nor the municipalitys argument would have led
the jury to find that Dr. Rassouli had been negligent or to think
that the quality of his care had any bearing on jury issues.
Furthermore, the trial court properly instructed the jury
regarding the reasonable expense of necessary medical care. It
based its instruction on Alaska Pattern Civil Jury Instruction
20.02, which correctly states Alaska law regarding medical
expenses. The courts instruction could not reasonably have led
the jury to think that the municipality was not liable for
negligent medical care Turner necessarily received as a result of
the accident.
C. The Trial Court Did Not Err in Denying Turners Directed
Verdict, JNOV, and New Trial Motions.
Turner asserts that because the municipality admitted
that it was liable for the accident and that the accident may
have caused a flare-up of Turners TMD, there was no reasonable
basis for the jury to deny recovery for Dr. Rassoulis treatment.
Based on this assertion, Turner argues that it was error for the
trial court to deny her motions for directed verdict, judgment
notwithstanding the verdict (JNOV), or a new trial.
In reviewing the denial of a motion for directed
verdict or JNOV, we apply an objective test to determine whether
the evidence, when viewed in the light most favorable to the non-
moving party, is such that reasonable [persons] could not differ
in their judgment.10 We review denial of a new trial under an
abuse of discretion standard wherein we disturb the trial courts
discretion only in the most exceptional circumstances to prevent
a miscarriage of justice.11
We are unpersuaded by Turners argument. The
municipalitys concession did not concede there was no genuine
issue of disputed fact as to whether the accident was a cause of
the conditions Dr. Rassouli treated. The municipality never
conceded this disputed fact question. The jury could have
permissibly found that the accident did not cause the conditions
treated by Dr. Rassouli. The trial court therefore properly
denied Turners motions.
Weidner v. Hibdon,12 on which Turner relies, does not
compel a different result. Weidner explains that treatment may
be considered reasonable when: (1) the plaintiff presents
credible evidence from her treating physician that the treatment
is reasonably effective and necessary, (2) other medical experts
corroborate the evidence, and (3) the treatment falls within the
realm of medically accepted options.13 But the evidence Turner
cites testimony from Dr. Rassouli and another medical expert,
Dr. Michael Majchrowitz was disputed. The municipality
presented sufficient evidence to present a genuine issue of fact.
D. Even if the Municipalitys Disclosure Was Incomplete
Under Alaska Civil Rule 26(a), there Was No Reversible
Error.
1. Turner was not prejudiced by any failure to
disclose.
Turner asserts that the municipality violated its
Alaska Civil Rule 26 (a)(1) duty to disclose its payment to USAA.
She seems to argue that the disclosure violation was sanctionable
under Alaska Civil Rule 37(c) and that denying the offset was the
required sanction. Turner does not, however, argue that the
trial court committed reversible error by failing to grant Rule
37 sanctions. As an appellate court, we review the trial courts
rulings for legal error, but Turner has not specified how the
trial court erred. Furthermore, it appears that Turner first
sought Rule 37 sanctions when she sought reconsideration of the
superior courts final judgment. She therefore did not preserve
any contention that it was error not to impose a suitable
sanction below.14 She did argue below that the alleged failure to
disclose bore on both the offset and offer of judgment issues.
Rule 26(a)(1) requires each party to disclose, without
awaiting a discovery request, the factual basis of each of its
claims or defenses15 and to provide a copy of, or a description by
category and location of, all documents . . . that are relevant
to disputed facts alleged with particularity in the pleadings.16
Rule 37(c) allows the court to sanction parties for failing to
disclose information required by Rule 26(a).
The municipality argues that it provided documentation
of the payment in its Rule 26 initial disclosures. The
documentation it refers to consists of a ten-page fax from USAA
Subrogation to Ward North America, the municipalitys adjuster.
One page of the fax bears a handwritten notation that appears to
indicate that a payment in the amount of $4,345.08 was sent to
USAA on May 14, 2002. The notation was initialed by Johanna
Grasso, the Ward North America employee to whom the fax was sent.
Turner does not dispute that she received this document among the
municipalitys disclosures, but she contends that the notation is
ambiguous and does not qualify as a disclosure.
We conclude that the municipalitys initial disclosures
were incomplete, and also should have included any available
canceled check or other evidence of payment. But assuming that
the municipalitys disclosure was inadequate, there is no
indication the failure harmed Turner. The total amount of
damages sought for medical expenses ($123,246.57) was so large
that it is extremely unlikely a more complete disclosure of the
$4,345.08 payment would have caused Turner to accept the $45,000
offer of judgment. Indeed, Turner did not assert in the superior
court, and does not contend on appeal, that she would have done
anything differently had she been fully advised of the payment.
Under these circumstances, there is no basis for concluding that
the municipalitys arguably inadequate disclosure caused Turner
prejudice and that the trial court somehow abused its discretion
by denying sanctions.17
2. The municipalitys Rule 68 offer of judgment was
valid.
Turner appeals the trial courts grant of attorneys fees
to the municipality under Alaska Civil Rule 68. Turner asserts
that the municipalitys failure to disclose its USAA payment
invalidated its $45,000 Rule 68 offer of judgment because the
allegedly undisclosed payment made the offer more valuable than
it appeared to be on its face. Turner assumes that a party
cannot evaluate an offer of judgment if the other party has
withheld disclosable information. But Turners argument fails
because the municipality did not altogether withhold information
of the payment, and there is no suggestion that Turner should be
excused from the consequences of rejecting the offer on the
theory that she would have acted differently had a more complete
disclosure been made.
We review questions of law such as an offer of
judgments compliance with Rule 68 under an independent de novo
standard.18 The court adopts the rule of law that is most
persuasive in light of precedent, policy, and reason.19
Under Alaska Civil Rule 68(b) a party receiving a
judgment less favorable than a rejected offer of judgment must
pay a percentage of costs and attorneys fees calculated from the
date of the offer. An offer of judgment is treated as an offer
for a contract; it requires a meeting of the minds on the
essential terms of the offer.20 It also must specify a definite
sum and must be unconditional.21
The municipalitys offer of judgment was for $45,000.00,
plus allowable costs pursuant to Alaska R.Civ.P. 79, prejudgment
interest as provided by law, and attorney fees as permitted by
Alaska R.Civ.P. 82. The offer also specified that the amount
would constitute complete satisfaction of all claims for money
which are made by the Plaintiff, Evadine Turner, including all
medical liens, subrogation claims, and other claims for
reimbursement.
In Jaso v. McCarthy we held that an offer of judgment
was not conditional even though it included language obligating
the offeree to satisfy all liens from the proceeds of the offer.22
We determined that there was no material difference between Jaso
and Grow v. Ruggles,23 in which we held that an offer is not
conditional even though it acknowledges the existence of a lien
and notes that a party is responsible for any liens that may
exist against a settlement.24
Turner does not argue that the offer was conditional,
but rather that it was ambiguous. Turner relies on Thomann v.
Fouse.25 In Thomann we held that an offers reference to a
possible future arbitration made the offer ambiguous and too
indefinite to support an award under Rule 68.26 We reasoned that
even if Fouse meant [the reference to future arbitration] to be
irrelevant, the presence of this detail invited confusion and
could reasonably have led Thomann to wonder what effect the
subsequent arbitration might have on her medical claim.27
Thomann is distinguishable. Whereas Thomann dealt with
an offers reference to future arbitration regarding liens, the
alleged ambiguity in the municipalitys offer of judgment lies in
what it does not say namely that one of the liens has been
satisfied. This is not enough to invalidate the offer. The
offer does not purport to lay out the various expenses for which
Turner will be responsible; it merely proposes to release the
municipalitys responsibility for them. The fact that the USAA
lien had already been paid, and therefore extinguished, simply
means that it was not among any unnamed liens and reimbursements
that Turner would have to pay out of the offer. The offer was
consequently not ambiguous. We therefore affirm the trial courts
grant of post-offer attorneys fees.
E. The Municipality Adequately Demonstrated that the Jurys
Award Duplicated the Medical Expenses Covered by the
Municipalitys Payment to USAA.
Turner asserts that it was error for the trial court to
give the municipality a $4,345.08 offset for its payment to USAA.
It is undisputed that the municipality repaid USAA for some of
Turners medical bills, but Turner argues that to receive an
offset, the municipality had to establish that its payment to
USAA was for the same expenses covered by the jurys damage award.28
The municipality does not dispute this proposition; it instead
argues that there is sufficient evidence in the record to
conclude that the jury award did include the same expenses
covered by USAAs discharged subrogation lien.
Under the common law a tort award may be offset by any
amount previously paid by a defendant (or its insurer) towards
its tort liability.29 This includes payments made to a plaintiffs
subrogated insurer.30 Although few courts have addressed the
issue, the trend seems to be towards granting an offset for prior
payments only when they directly correspond to specific damages
awarded by the jury.
There are two situations in which defendants have
traditionally been required to show that a prior payment was for
the same injury or expenses covered by damages awarded by the
jury: when payment came from a joint tortfeasor and when payment
came from a collateral source.31 Although there is less case law
regarding the showing of same-injury or same-expense when an
offset is sought for a defendants own prior payments, precedent
from several states supports such a requirement.
1. Common law burden of proving offset: joint
tortfeasors
Defendants have typically been granted offsets for
prior payments made by joint tortfeasors, although this offset is
no longer arguably available in Alaska.32 A defendant seeking an
offset for a joint tortfeasors payment must prove that the prior
payment was for the same expenses for which it is liable.33 This
approach is instructive even though Turners case does not involve
a joint tortfeasors payment, and even though a defendant in
Alaska no longer has an arguable offset claim for a joint
tortfeasors payment.
The dissenting opinion in Falconer v. Adams considered
the offset question, and argued that a defendant should be
granted an offset under the common law if it could prove that
damages assessed against it coincided with previously paid
damages.34 The standard the dissent effectively urged is the one
that pertains to prior payments by joint tortfeasors. The
dissent cited to Wood v. Diamond M Drilling Co.35 and to cases
cited by Wood to support the dissents contention that the
defendant must show that the prior payments were for the same
expenses compensated by the trial court. The cases cited in Wood
are joint tortfeasor cases. Wood primarily relied on Cates v.
United States.36 In Cates, the United States government sought an
offset for prior payments made by another defendant, Reynolds.37
Cates held that the Government is not entitled to a reduction
equal to the amounts paid by Reynolds specifically for
maintenance and cure . . . since there is no affirmative showing
on the record that any of the $8,000 judgment duplicated the
maintenance and cure and medical expense items awarded against
the government.38
Other jurisdictions have required such a showing from
joint tortfeasors, especially if one defendant settles and
another defendant seeks an offset for the amount paid by the
settling defendant. For example, in Boyett v. Keene Corp., a
defendant sought an offset in the amount of a joint tortfeasors
prior settlement.39 The United States District Court in Texas
held that [t]he burden of proving that the settlement and the
judgment represented common damages, such that the plaintiff
would receive a double recovery if no offset were allowed, rests
on the party seeking a credit.40 Likewise, in Phillips v. Liberty
Mutual Insurance Co., the Eleventh Circuit Court of Appeals,
citing Georgia law, stated that a joint tortfeasor is entitled to
a setoff only if the amount is proved.41 And in Zivitz v.
Greenberg, the Seventh Circuit Court of Appeals held that
[n]onsettling tortfeasors . . . are entitled to a setoff only for
damages that are awarded for the same injury for which the
settling defendants compensated the plaintiff.42 These cases
demonstrate that, at least for prior payments by joint
tortfeasors, courts have required a same-injury or same-expenses
showing to grant an offset.
2. Statutory burden of proving offset: collateral
sources
In Alaska AS 09.17.070 allows defendants offsets for
certain collateral source payments received by injured
plaintiffs.43 It provides that after the factfinder has rendered
an award a defendant may introduce evidence of amounts
received . . . for the same injury from collateral sources.44
Although we have not directly addressed the issue, two of our
opinions indicate that AS 09.17.070 requires a defendant to prove
that prior collateral source payments were for the same medical
expenses awarded by the jury.
In Falconer, we noted that one problem with the
defendants offset claims was that it was entirely unclear whether
Allstates check reimbursed State Farm for the same medical
expenses awarded by the jury.45 We therefore interpreted AS
09.17.070 as requiring a same-expenses showing.46
In Liimatta v. Vest, the plaintiff argued that the
defendant could not receive an offset under AS 09.17.070 because
the defendant did not establish that the funds advanced were
intended to compensate her for the same injury for which the jury
awarded damages.47 Although we expressed no disagreement with the
same injury standard under AS 09.17.070, we did not have to
address the issue because we held there that AS 09.17.070 does
not apply to payments by a non-collateral source.48
Even though AS 09.17.070 does not apply here, it does
provide a useful model for dealing with offsets. Its requirement
that the defendant show that any payments for which she seeks an
offset are included in the jury award reflects in an analogous
context a policy choice about a defendants burden and the
consequences of a failure of proof.
Courts have good reason to require a same-injury or
same-expense showing when prior payments are made by either a
joint tortfeasor or a collateral source. The purpose of offset
in both situations is avoiding double recovery; therefore, if the
prior payment was for a different injury than the one compensated
at trial, no issue of double recovery arises. It is logical to
err on the side of requiring the defendant to pay because the
joint tortfeasors prior payment or the collateral source payment
did not come out of the trial defendants own pocket. Putting the
burden of proof on the trial defendant to show that the payment
was for the same injury or expense allows the court to protect
the plaintiffs interests without risking unfairness to the
defendant. Either way, the defendant will not have to pay twice
for the same expenses.
If the trial defendant made the prior payments, there
are two primary rationales for allowing an offset: avoiding
double recovery by the plaintiff, and avoiding making the
defendant pay twice. If the jury has not been asked to specify
what damage items it is compensating, the court risks both double
payment by the defendant and inadequate compensation of the
plaintiff. There are thus competing interests on either side of
the scale, and it is not as clear that the defendant should have
the burden of proof on the same-expenses issue. But we think
that on balance, fairness favors requiring the defendant to show
that its prior payment covered the same expenses included in the
jurys award. Defendants should be encouraged to make advance
payments for injuries for which they are liable, but it is not
unreasonable to require them to show that any amount of offset
directly corresponds to the trial award. This is especially so
because the defendant is in the best position to know what
expenses it intended to reimburse when it made advance payments
to the plaintiff. Requiring a same-expenses showing encourages
the defendant to be straightforward about advance payments and to
ask the fact-finder to make specific damages findings, or to take
the chance it may not receive a full offset.
3. Offsets for the trial defendants prior payments
Courts elsewhere have indicated that to receive an
offset a defendant must prove that its own advance payments are
for the same expenses compensated by the jury. In Douglas v.
Adams Trucking Co., the Arkansas Supreme Court addressed the
question of how much offset to grant a defendant who had made
advance payments to the plaintiff.49 The court affirmed the trial
courts decision to offset the jury award by advances paid by the
defendant but nonetheless remanded, holding that not all of the
expenses paid by the defendant should be offset.50
The plaintiff had been injured when he was struck by
defendants truck.51 The defendants liability carrier made a
series of advance payments to the plaintiff for medical expenses,
loss of property, and loss of income.52 On appeal, the court
first held that despite the defendants failure to make an
explicit agreement with the plaintiff that the advances would
count towards future liability, the defendant was still entitled
to an offset.53 The court then determined the amount of the
offset.54 Although the trial court had granted the defendant an
offset for the full amount it had paid, the supreme court
declined to do so.55 Instead, the court considered what each
specific payment had been for and whether the payment coincided
with costs awarded by the jury.56 It determined that although
most of the advance payments could be offset, there should be no
offset as to the $100,000 pain and suffering award because there
was no evidence any of the defendants advance payments were
intended to compensate the plaintiff for pain and suffering.57
The court also declined to recognize an offset for an advance
payment intended to reimburse the plaintiff for one damages item
because it concluded that this advance does not correspond to any
of the jurys special verdicts.58 Thus, the court applied offsets
only for those expenses that could be linked to specific damages
awarded by the jury.
In Cottrell v. Burlington Northern Railroad the Montana
Supreme Court considered whether the plaintiffs lost wages
previously paid by the defendant were included in the jurys
damages award.59 Although we face a slightly different inquiry
here (where the question is not about the type of damages, but
rather the type of injury), both issues present similar policy
choices between undercompensation and overpayment.
The Cottrell court held on appeal that the lower court
had erred in refusing to grant an offset for prior amounts paid
by the defendant for wage loss.60 The court on appeal did not
specifically say that the defendant was or was not required to
make a same-damages showing, but its reasoning seems to indicate
that such a showing was required. In holding that the lower
court had erred in denying the offset, the court did not hold
that an offset was always required, but rather that in that
particular case it was logical to conclude that at least part of
the jurys award was for the same expenses previously paid by the
defendant.61 This was so because the jury had awarded damages
totaling more than $1.3 million, and the plaintiff had claimed
wage loss damages of $862,230 and general pain and suffering
damages of between $700,000 and $1,000,000.62 By logical
deduction at least $300,000 of [the] recovery had to be
compensation for wage loss.63 The court remanded for a
determination of the exact amount of offsets to which defendant
[was] entitled.64 By going through the steps to prove that some
of the jury award had to be for the same damages sought by the
defendant, the court indicated that an offset would not be
granted absent some positive proof that the defendants payments
coincided with the jury award.
These courts have all indicated that a defendant has
the burden of showing that its prior payment and the jury award
were for the same injury or expense. We agree. If a defendant
intends to seek an offset, it is responsible for ensuring that
the jurys verdict is sufficiently specific for the trial court to
determine whether the jury awarded the same expenses for which
the offset is sought. Although Turner argued that it was unfair
for the municipality to seek an offset after objecting to a
damages allocation by the jury, the municipalitys opposition to
the post-verdict allocation sought by Turner was not
inappropriate, given its legitimate interest in avoiding the
appearance of an inconsistent verdict.65 But even though the
municipality legitimately opposed Turners post-verdict request
for an allocation in this case, it still bore the responsibility
for showing that its past payment covered the same expenses
awarded by the jury.
In the Montana case, the jury awarded enough damages
that the court could logically deduce that there was at least
some overlap between the prior payment and the award.
Here, the jurys award of $12,895 for Turners past
medical costs was for a small fraction of the total medical
damages Turner claimed. Nonetheless, we think it important that
in final argument the municipality conceded liability for the
medical expenses covered by its pretrial payment, and also argued
that about $8,000 of past medical expenses were attributable to
the accident. There was consequently no dispute that the
municipality owed these conceded amounts for these medical
services. Indeed, there would have been no basis for the jury to
fail to award the full amount of the conceded items. We
therefore must assume that the jurys past medical cost award of
$12,895 included the expenses for which the municipality seeks an
offset. Consequently, the trial court did not err in granting
the municipality the $4,345.08 offset.
IV. CONCLUSION
We therefore AFFIRM the judgment below.
_______________________________
1 See Restatement (Second) of Torts 457 (1965) (If the
negligent tortfeasor is liable for anothers bodily injury, he is
also subject to liability for any additional bodily harm
resulting from normal efforts of third persons in rendering aid
which the others injury reasonably requires, irrespective of
whether such acts are done in a proper or a negligent manner.).
2 See Alaska R. Evid. 402 (Evidence which is not relevant
is not admissible.); Alaska R. Evid. 403 (Although relevant,
evidence may be excluded if its probative value is outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury. . . . ).
3 Laidlaw Transit, Inc. v. Crouse, 53 P.3d 1093, 1097
(Alaska 2002).
4 Alaska R. Evid. 402. Alaska Evidence Rule 401 defines
relevant evidence as evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.
5 Alaska R. Evid. 403.
6 Referring to Dr. Rassoulis treatment in its final
argument to the jury, the municipalitys attorney contended that
it all raises questions as to was all of that work related at all
to the auto accident and I tell you that it wasnt. All of that
reconstructive work had nothing to do with the accident . . . .
7 The relevant part of the courts instruction told the
jury: The first item of economic loss claimed by the plaintiff is
the reasonable expense of necessary medical care from July 19,
2001 to January 31, 2005 [and] the reasonable expense of
necessary medical care reasonably probable to be received in the
future.
8 As noted above, 457 embodies the principle that a
tortfeasor is liable for any additional bodily harm resulting
from normal efforts of third persons in rendering aid which the
[victims] injury reasonably requires, even if the aid is rendered
in a negligent manner.
9 Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002).
10 Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska
1999) (quoting City of Whittier v. Whittier Fuel & Marine Corp.,
577 P.2d 216, 220 (Alaska 1978)).
11 Bierria v. Dickinson Mfg. Co., 36 P.3d 654, 656 (Alaska
2001).
12 Weidner v. Hibdon, 989 P.2d 727 (Alaska 1999).
13 Id. at 732.
14 DeNardo v. GCI Commcn Corp., 983 P.2d 1288, 1292-93
(Alaska 1999) (holding that appellant waived issue first raised
in superior court in motion for reconsideration).
15 Alaska R. Civ. P. 26(a)(1)(A).
16 Alaska R. Civ. P. 26(a)(1)(D).
17 Turner also asserts that the municipality was required
to plead offset as an affirmative defense under Alaska Civil Rule
8(c). In Alaska we have not yet addressed whether Rule 8(c),
which requires a defendant to plead payment as an affirmative
defense, applies to claims of offset, such as the municipalitys.
But Turners Rule 8(c) claim fails for the same reason her Rule
26(a) and Rule 37(c) claims fail: she has not shown, nor even
claimed, that the outcome of the case would have been different
had the municipality more thoroughly disclosed the payment or had
its answer pled for offset. She has not demonstrated that any
possible trial court error in this regard requires reversal.
18 Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004).
19 Jaso v. McCarthy, 923 P.2d 795, 801 (Alaska 1996)
(citations omitted).
20 Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973).
21 Id.
22 Jaso v. McCarthy, 923 P.2d 795, 801-02 (Alaska 1996).
23 Grow v. Ruggles, 860 P.2d 1225 (Alaska 1993).
24 Jaso, 923 P.2d at 801-02.
25 Thomann v. Fouse, 93 P.3d 1048 (Alaska 2004).
26 Id. at 1049.
27 Id. at 1051.
28 Both parties cite to Falconer v. Adams, 974 P.2d 406
(Alaska 1999), in discussing whether the municipality must make
an affirmative same-injury showing to receive an offset. But
Falconer is not directly on point. In Falconer we indicated that
a party seeking an offset under AS 09.17.070 for payments from
collateral sources must show that the payments were for the same
expenses compensated by the jury award. 974 P.2d at 412-13.
This case concerns not a collateral source payment by another
payor, but a prior payment by the defendant itself. AS 09.17.070
therefore has no direct application here.
29 Chenega Corp. v. Exxon Corp., 991 P.2d 769, 791 (Alaska
1999). See also Restatement (Second) of Torts 920A (1979).
30 See Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d
937, 942 (Alaska 1983) (holding that plaintiff could not recover
for subrogated claim subrogee had already settled).
31 Joint tortfeasors are not treated as collateral
sources; a defendant typically has a common law right to offset
for any joint tortfeasors prior contribution for the same
expenses, while offsets for collateral source payments require
statutory authorization. See Restatement (Second) of Torts 920A
(1979). Defendants in Alaska have no right to receive an offset
for payments made by a joint tortfeasor. Petrolane Inc. v.
Robles, 154 P.3d 1014 (Alaska 2007). Nonetheless, the procedures
by which joint tortfeasors elsewhere may seek an offset remain
instructive in the case before us.
32 Compare Restatement (Second) of Torts 920A(1) (1979)
(A payment made by a tortfeasor . . . to a person whom he has
injured is credited against his tort liability, as are payments
made by another who is, or believes he is, subject to the same
tort liability.) with Petrolane Inc. v. Robles, 154 P.3d at 1020-
21.
33 See, e.g., Phillips v. Liberty Mut. Ins. Co., 813 F.2d
1173, 1176 (11th Cir. 1987); Boyett v. Keene Corp., 815 F. Supp.
204, 209 (E.D. Tex. 1993).
34 Falconer v. Adams, 974 P.2d 406, 416 (Alaska 1999)
(Matthews, C.J., dissenting).
35 Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1171
(5th Cir. 1982).
36 Cates v. United States, 451 F.2d 411, 417-18 (5th Cir.
1971). Wood itself concerns whether a jury award for lost wages
duplicates the same jurys award for maintenance and cure. Wood,
691 F.2d at 1171.
37 Cates, 451 F.2d at 417-18.
38 Id. at 417.
39 Boyett v. Keene Corp., 815 F. Supp. 204, 209 (E.D. Tex.
1993).
40 Id.
41 Phillips v. Liberty Mut. Ins. Co., 813 F.2d 1173, 1176
(11th Cir. 1987) (citations omitted).
42 Zivitz v. Greenberg, 279 F.3d 536, 539 (7th Cir. 2002).
43 Although both parties refer to AS 09.17.070 on appeal,
the statute is not directly on point because the municipalitys
payment to USAA is not a collateral source. But the statute does
serve as a useful model for considering whether to require a same-
injury showing.
44 AS 09.17.070(a).
45 Falconer, 974 P.2d at 412-13.
46 Id.
47 Liimatta v. Vest, 45 P.3d 310, 319-20 (Alaska 2002).
48 Id. at 320.
49 Douglas v. Adams Trucking Co., 46 S.W.3d 512 (Ark.
2001).
50 Id. at 519.
51 Id. at 513.
52 Id. at 513-14.
53 Id. at 516-17.
54 Id. at 518-19.
55 Douglas v. Adams Trucking Co., 46 S.W.3d 512, 519 (Ark.
2001).
56 Id. at 518-19.
57 Id. at 519.
58 Id.
59 Cottrell v. Burlington N. R.R., 863 P.2d 381 (Mont.
1993).
60 Id. at 389.
61 Id. at 388-89.
62 Id.
63 Id. at 389.
64 Id.
65 Just before moving for allocation of past medical
expenses, Turners counsel asked that the jury be required to
reexamine its award of past medical expenses on the ground that
it was inconsistent.
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