| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. L.D.G., Inc. v. Brown (07/10/2009) sp-6390
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
| L.D.G., INC., an Alaska Corporation, | ) |
| and LARRY GJOVIG, | ) |
| ) Supreme Court Nos. S- 12409/S-12430 | |
| Appellants and | ) |
| Cross-Appellees, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-00-00513 CI |
| ) | |
| ROBERT J. BROWN, Personal | ) |
| Representative of Tracy N. Eason, | ) |
| Deceased, | ) O P I N I O N |
| ) | |
| Appellee and | ) |
| Cross-Appellant. | ) No. 6390 - July 10, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
John Suddock and Morgan B. Christen, Judges.
Appearances: Arthur S. Robinson, Robinson &
Associates, Kenai, for Appellants and Cross-
Appellees. John S. Hedland, Hedland, Brennan
and Heideman, Anchorage, for Appellee and
Cross-Appellant. Ruth Botstein, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Intervenor and Cross-Appellee State of
Alaska.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
The personal representative of the estate of a woman
who was shot and killed by an intoxicated man sought damages, on
behalf of the womans two surviving dependents, from a bar that
allowed the man to consume alcohol while he was already
intoxicated just prior to the shooting. Following a jury trial,
the superior court imposed dram shop liability in favor of the
personal representative, dismissed the single shareholder of the
bars corporate owner from the lawsuit, and applied a single
damages cap to the non-economic damages awarded to the decedents
two surviving dependents. The corporate owner of the bar
challenges (1) the superior courts entry of a judgment
notwithstanding the verdict after the jury made factual findings
but refused to assign legal cause to the bar; (2) the trial
courts decision that the plaintiffs complaint was sufficiently
broad to include the violation of the dram shop act alleged here;
(3) the trial courts refusal at a subsequent trial for damages
to allow appellant to introduce evidence of the facts and
circumstances surrounding the decedents death; (4) the trial
courts instruction on legal cause in the damages trial; and (5)
the trial courts decision to permit hearsay testimony in the
damages trial. The personal representative (1) challenges the
trial courts dismissal of the single shareholder of the bars
corporate owner from the suit and (2) argues that the damages cap
is unconstitutional on its face and as applied and, if it is
constitutional, that the trial court should have imposed a
separate damages cap for each surviving decedent. The state, as
intervenor, argues that the damages cap statute is
constitutional. For the reasons stated below, we affirm the
superior courtss decisions on all issues with the exception of
its dismissal of the single corporate shareholder from the
lawsuit. On that issue, we remand for retrial.
II. FACTS AND PROCEEDINGS
A. Facts
R.V. Freeman spent the evening of July 17, 1998
consuming alcohol at the J Bar B. The J Bar B is owned by
L.D.G., Inc., a corporation individually owned by Larry Gjovig.
Freeman was served at the bar by bartender Sharine Christensen.
Freeman was served eight drinks within the span of approximately
fifty minutes, and allegedly had consumed more alcohol earlier in
the day. Eventually, when Freeman began to appear intoxicated,
Christensen refused to serve him any more alcohol. Christensen
did not remove Freemans remaining drinks, however, and Freeman
consumed at least a part of one drink after the point at which
Christensen determined that he was intoxicated.
Christensen then attempted to procure a ride home for
Freeman to prevent him from driving in his intoxicated condition.
Freeman refused to let Christensen call him a cab and refused to
give her his car keys. Eventually another bar patron, Tracy
Eason, agreed to drive Christensen to Freemans residence to pick
up Freemans girlfriend, Jeanne Iwasko, so that Iwasko could come
back with them to the bar and drive Freeman home in his own car.
Eason drove Christensen to Freemans residence, but when they
arrived there they discovered that Freeman had already driven
himself home and was in the driveway speaking with Iwasko.
Christensen asked to use the bathroom and Iwasko let
her into the house. While Christensen was in the bathroom she
heard Iwasko and Freeman arguing. Christensen then heard two
gunshots. Christensen eventually left the bathroom, saw Iwasko
on the floor suffering from a gunshot wound, and called 911.
Christensen heard more gunshots while she was on the phone with
the 911 operator. State troopers arrived on the scene and
arrested Freeman. Both Iwasko and Eason, who had also been shot,
died from the wounds they received that night. Freeman was
convicted of first-degree murder in the deaths of both Iwasko and
Eason and is currently incarcerated.
B. Proceedings
In 2000 Robert Brown, Tracy Easons father and the
personal representative of her estate, filed a wrongful death
suit against L.D.G., Inc. and Larry Gjovig on behalf of the
estate and Easons surviving dependent children Jordan and Justin.
The complaint alleged that the J Bar B violated Alaskas dram shop
act, AS 04.16.030, when Christensen the J Bar Bs bartender
served alcoholic beverages to Freeman while he was visibly
intoxicated. The complaint additionally claimed that this
negligent, reckless, and intentional serving of alcohol to
Freeman was the proximate cause of Easons death. Brown sought
actual damages, punitive damages, and costs and fees on behalf of
the estate and the dependents. Brown did not seek to recover any
damages from Freeman himself, and neither L.D.G. nor Gjovig
sought to join Freeman or assert a third-party claim against him.
At trial, the jury heard testimony regarding Freemans
level of intoxication when Christensen served him the alcoholic
beverages and the circumstances surrounding Christensens refusal
to serve him any additional alcohol. Additionally, the jury
heard testimony from several witnesses who described Freemans
typical behavior when sober and when intoxicated. The jury was
also shown portions of a video recorded in the bar on the night
in question. At the close of the trial, Gjovig moved for a
directed verdict on the claims against him personally. The
superior court granted Gjovigs motion, leaving L.D.G. as the sole
remaining defendant.
The court then submitted the case to the jury,
providing the jury with a special verdict form to determine the
extent of L.D.G.s liability. Responding to questions laid out in
the special verdict form, the jury declined to find that an
employee of the J Bar B [sold] alcohol to R.V. Freeman with
criminal negligence when he was a drunken person, but did find
that an employee of the J Bar B with criminal negligence
allow[ed] R.V. Freeman to consume an alcoholic beverage in the
bar when he was a drunken person. The jury also found that it
was more likely true than not true that, if R.V. Freeman had not
been intoxicated, he would not have killed Tracy Eason. But the
jury declined to find that the intoxication of R.V. Freeman [was]
so important in bringing about the death of Tracy Eason that a
reasonable person would regard it as a cause and attach
responsibility to it. Because the jury did not find that
Freemans intoxication was a legal cause of Easons death, they did
not reach the question of damages.
Following receipt of the jurys verdict, Brown filed a
motion for entry of judgment in his favor and a new trial to
determine damages. The superior court granted Browns motion,
finding that fair-minded jurors could not have concluded that the
intoxication of the murderer, who they found would not have
killed Tracy Eason but for that very intoxication, was not a
substantial factor in this wrongful death. The superior court
therefore entered a judgment notwithstanding the verdict, finding
L.D.G. liable for Easons death and ordering a new trial on
damages. L.D.G. filed a motion for reconsideration of the order,
and the superior court denied this motion. L.D.G. then
petitioned this court for review; we denied the petition.
At the beginning of the new trial on damages, the
superior court ordered, over L.D.G.s objection, that the trial
would be limited to the question of wrongful death damages and
that the jury would not be informed of the circumstances
surrounding Easons death. The jury ultimately determined
damages, using a special verdict form identifying past and future
economic and non-economic damages, at $705,856 for Justin Eason
and $749,026 for Jordan Eason. Each of these awards included
$28,290 in past non-economic damages and $537,508 in future non-
economic damages. Brown then moved for an entry of judgment
setting damages at the amounts determined by the jury. L.D.G.
responded with a motion for remittitur claiming that the non-
economic damages were subject to a damages cap under AS
09.17.010, which would limit the non-economic damages to a total
of $421,824 (based on Tracy Easons life expectancy at the time of
her death multiplied by $8,000) for the combined claims of both
of Easons surviving dependents. Brown responded to L.D.G.s
motion for remittitur by arguing that the damages cap should not
apply in this case, that if the damages cap did apply there
should be a separate cap for each of the boys claims, and in the
alternative that the appropriate damages cap was a one million
dollar cap under AS 09.17.010(c). Brown also argued that the
entire damages cap statute was facially unconstitutional as a
denial of equal protection and the right to a jury trial, and
unconstitutional as applied in this case because it applied an
aggregate cap to multiple beneficiaries.
After the original judge, Superior Court Judge John
Suddock, recused himself in January 2005 because he had
previously been involved as counsel in a case relied upon by the
parties regarding the constitutionality of AS 09.17.010, the case
was reassigned to Superior Court Judge Morgan B. Christen.
Judge Christen then entered a final judgment in April 2005
interpreting AS 09.17.010 as imposing a single damages cap. The
superior court declined to address the constitutional arguments
because it found that Brown had not met the burden of proof
required to overcome the presumption of constitutionality.
Accordingly, the superior court applied a single cap of $421,824
to the aggregate non-economic damages awarded to the boys.
Brown moved for reconsideration of the order imposing
the single damages cap, asking the court to reach the
constitutional issues. L.D.G. did not respond to the motion, and
the superior court ordered supplemental briefing on the
constitutional issues. The parties submitted supplemental
briefing, and the court notified the Attorney General of Alaska
that the supplemental briefing called into question the
constitutionality of a statute. The court also requested amicus
briefing on the constitutional questions from organizations
representing plaintiffs counsel and defense counsel. The state
successfully moved to intervene in the litigation to defend the
constitutionality of the damages cap legislation. The superior
court ultimately found that AS 09.17.010(b) is not
unconstitutional on its face or as applied. The superior court
again entered a single award for both boys for non-economic
damages of $421,824.
Brown and L.D.G. both appealed; the state continues to
defend the constitutionality of the damages cap.
III. STANDARD OF REVIEW1
We review de novo the grant of a directed verdict and
the grant of a judgment notwithstanding the verdict to determine
whether the evidence, viewed in the light most favorable to the
non-moving party, is such that reasonable persons could not
differ in their judgment.2 We review a determination of the
sufficiency of a complaint for abuse of discretion.3 Questions
regarding the admissibility of evidence are reviewed for abuse of
discretion.4 Where the admissibility of evidence turns on
whether the trial court applied the correct legal standard, we
review the [lower] courts decision using our independent legal
judgment.5 We review jury instructions de novo.6 Issues
regarding the constitutionality of statutes are questions of law
that we review de novo.7 We review the interpretation of a
statute de novo, adopting the rule of law most persuasive in
light of precedent, reason, and policy.8
IV. DISCUSSION
A. The Trial Court Did Not Err in Granting Browns Motion
for a Judgment Notwithstanding the Verdict After the
Original Trial.
Following completion of the original jury trial, and
after the jury had entered its finding that Freemans intoxication
was not a legal cause of Easons death, the superior court
granted Browns motion for a judgment notwithstanding the verdict
(JNOV). L.D.G. argues that Brown was not entitled to a j.n.o.v.
because reasonable persons could differ in their judgment on the
issue, and therefore the jurys verdict should have been allowed
to stand. To support this argument, L.D.G. asserts that Alaskas
dram shop liability statutes are not strict liability statutes,
and therefore the plaintiff must establish that violation of the
statutes was both the factual and proximate cause of the
injuries. In this case, L.D.G. argues, Brown must show not just
that L.D.G. violated the dram shop statutes by serving alcohol to
an intoxicated person, but also that the injuries to the decedent
resulted from the intoxication, or were proximately caused by the
intoxication.
Brown responds that the entry of a JNOV was appropriate
because the jury had been given an improper instruction on legal
causation and because the special verdict form included an
improper question on legal causation. Brown supports these
claims by asserting that in a statutory dram shop case the only
relevant issues of proximate cause are whether the defendant
acted with criminal negligence under the statute in serving the
actor alcohol, and whether the actors intoxication led to the
injuries. Brown argues that, because the jury returned findings
in the affirmative on both of these questions, there was no need
for an additional jury question on legal causation and the
superior court acted appropriately in entering judgment in favor
of Brown.
In deciding whether to issue a JNOV, a trial court must
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.9 Under Alaskas dram
shop liability statutes, a person who provides alcohol to
another is generally not liable for injuries resulting from that
persons intoxication. However, the statutes provide an exception
for a liquor licensee who allows an intoxicated person to consume
an alcoholic beverage on licensed premises. Alaska Statute
04.21.020 provides in relevant part that
a person who provides alcoholic beverages to
another person may not be held civilly liable
for injuries resulting from the intoxication
of that person unless the person who provides
the alcoholic beverages holds a license . . .
or is an agent or employee of such a licensee
and . . . the alcoholic beverages are
provided to a drunken person in violation of
AS 04.16.030.
Alaska Statute 04.16.030 prohibits a licensee acting with
criminal negligence from sell[ing], giv[ing], or barter[ing]
alcoholic beverages to a drunken person or allow[ing] a drunken
person to . . . consume an alcoholic beverage within licensed
premises.
Here, in its decision granting Browns motion for a
JNOV, the superior court found that fair-minded jurors could not
have concluded that the intoxication of the murderer, who they
found would not have killed Tracy Eason but for that very
intoxication, was not a substantial factor in this wrongful
death. The superior courts decision to enter judgment in favor
of Brown, therefore, was based on its determination that the jury
acted unreasonably in failing to assign legal causation to the J
Bar Bs actions in allowing Freeman to consume alcohol when he was
already intoxicated, even though the jury had already found that
the J Bar B had acted with criminal negligence and that Freemans
intoxication was the factual cause of Easons death.
Generally, Alaska courts apply a two-part test to
determine legal causation in negligence cases, asking first
whether the accident would not have happened but for the
defendants negligence, and then asking whether the negligent act
was so important in bringing about the injury that reasonable
individuals would regard it as a cause and attach responsibility
to it.10 We have also specifically outlined the requirements for
legal causation in dram shop cases in Gonzales v. Safeway Stores,
Inc.:11
Under ordinary principles of causation a
plaintiff would have to prove that the liquor
unlawfully sold was a substantial
contributing factor to the intoxication which
caused the accident. Under the dram shop act
the plaintiff has an easier task. The
plaintiff must show only an unlawful sale to
an intoxicated person who, in consequence of
such intoxication, caused injury to another.
The plaintiff need not show that the sale
substantially contributed to the
intoxication.[12]
Thus, the issue of legal causation in dram shop liability cases
hinges on whether the actors intoxication was so important in
bringing about the injury that a reasonable person would regard
it as a cause and attach responsibility to it. This is true
whether or not the plaintiff has established that the
intoxication resulted from the alcohol that was unlawfully
provided in violation of AS 04.16.030.
In this case, the jury found both that an employee of
the J Bar B acted with criminal negligence when she allowed
Freeman to consume alcohol on the premises when he was already
intoxicated, and that it was more likely true than not that
Freeman would not have killed Eason had he not been intoxicated.
The superior court also asked the jury to determine whether
Freemans intoxication was so important in bringing about the
death of Tracy Eason that a reasonable person would regard it as
a cause and attach responsibility to it. The jury answered this
question in the negative. The jury thus found that the first
prong of the two-part substantial factor test for legal causation
but for causation was satisfied, but that the second prong
whether a reasonable person would regard the defendants
negligence as a cause and attach responsibility to it was not
satisfied.13
In granting Browns motion for entry of judgment in his
favor on the issue of liability, the superior court found that
fair-minded jurors could not have concluded that the intoxication
of the murderer, who they found would not have killed Tracy Eason
but for that very intoxication, was not a substantial factor in
this wrongful death. We will hold that a jurys findings were
unreasonable where the facts in the record do not support the
jurys conclusions on legal cause.14 A review of the record in
this case supports the superior courts determination that the
only reasonable conclusion in light of the evidence was that
Freemans intoxication was a substantial factor in causing Easons
death.
The jury heard testimony from several individuals who
described Freemans typical behavior when sober and when
intoxicated, as well as testimony from individuals who witnessed
his behavior on the night of the shooting. This testimony
presented a picture of Freeman as a man who was mild mannered if
sometimes unpleasant when sober, but who was capable of a
significant transformation when intoxicated, becoming obnoxious,
belligerent, and mean as a snake.
Elizabeth and Sam Strange, Freemans neighbors,
described their relationship with Freeman prior to the attacks on
Iwasko and Eason, and their shock at the changes they observed in
Freeman that night. Elizabeth recounted their friendly
relationship with Freeman, noting that he was like a dad to us
and a grandfather to our children. Elizabeth further stated that
Freeman had never given her any indication that he was a violent
person when he was sober. Sam Strange was the first person to
arrive at Freemans residence immediately following the shootings,
and both his testimony and the transcript of his call to 911 that
night reflect his shock at Freemans condition and behavior.
Strange had run over to the Freeman residence believing that
there had been an accident and intending to help, but called 911
after Freeman, who still held the handgun and who had blood on
his hand, threatened to shoot him. In the recording of that 911
call, which was played at trial, Strange tells the 911 operator
that [h]es drunker than a rail right now, and Ive never seen this
man like this before, and that this is totally out of context for
him that I know of. At trial, Sam answered Yes to the question
So . . . the drunkest you ever saw him was also the wildest and
most violence [sic] you ever saw him?
Three bartenders who had worked at the J Bar B and knew
Freeman described in statements either given directly at trial
or recounted at trial by the lead investigator in Freemans
criminal case Freemans belligerent, mean, and sometimes violent
behavior when he was intoxicated. Two of these bartenders had
personal policies of never serving liquor to Freeman because they
did not like his behavior when he consumed hard alcohol. Freeman
was served at least eight drinks at the J Bar B, including hard
alcohol, the night of the shooting. The state troopers
administered a portable breath test to Freeman after he was
arrested and recorded a breath alcohol level of 0.203.
The question put to the jury was whether Freemans
intoxication was so important in bringing about the death of
Tracy Eason that a reasonable person would regard it as a cause
and attach responsibility to it. The jury heard evidence that
Freeman underwent significant changes in his personality when he
became intoxicated, and that these changes involved increased
belligerence and aggression. Although the evidence presented to
the jury did not show that Freemans intoxication was the sole
cause of the death of Tracy Eason, the only reasonable conclusion
in light of the evidence was that Freemans intoxication was
sufficiently important in bringing about Easons death that
responsibility should be attached to the intoxication and, by
extension, to those who unlawfully contributed to the
intoxication.15
Additionally, there is evidence that the jury may have
been exposed to incorrect statements regarding the legal
standards for dram shop liability, and that the jurys resulting
confusion led to the inconsistency in its findings on the special
verdict form. Although jury instruction 22 provided an accurate
summation of dram shop liability, including a statement that it
was not necessary for the jury to find that the particular
alcoholic beverages served to Freeman at the J Bar B in violation
of the statute led to Easons injuries, the jury had already heard
an inconsistent, and inaccurate, statement of the law from
L.D.G.s counsel. L.D.G. included in its summation to the jury,
over Browns objection, the rhetorical question Do we know whether
or not that extra two or three drinks that [Freeman] had at the J
Bar B was what did it? This statement was contrary to our
holding in Gonzales that the plaintiff need not show that the
alcohol that was provided with criminal negligence substantially
contributed to the intoxication16 and raised the irrelevant
question of whether the alcohol that Freeman consumed after he
was cut off contributed to his decision to murder Eason. In
light of this exposure to an incorrect legal standard, it is
understandable that the jury could find both that it was more
likely true than not true that, if [Freeman] had not been
intoxicated, he would not have killed [Eason] and that Freemans
intoxication was not so important in bringing about the death of
[Eason] that a reasonable person would regard it as a cause and
attach responsibility to it. However, where the evidence in the
record does not support the jurys findings on legal causation it
is not necessary to speculate as to why the jury went wrong.17
Therefore, because the jury found that L.D.G. acted
with criminal negligence in serving alcohol to an intoxicated
individual and that Freemans intoxication was a but for cause of
Easons death, and because the superior court did not err in
finding that reasonable jurors could not have concluded that
Freemans intoxication was not a substantial factor in Easons
death, the superior court did not err in entering j.n.o.v. in
favor of Brown.18
B. The Trial Court Did Not Err in the Trial on Damages in
Refusing To Admit Evidence Relating to the
Circumstances of Easons Death.
After the jury failed to allocate legal liability in
its special verdict form therefore avoiding the question of
damages and the court issued judgment notwithstanding the
verdict assigning liability to L.D.G., the superior court ordered
a separate trial to determine damages. L.D.G. argues on appeal
that the trial court erred in refusing at the damages trial to
admit evidence pertaining to facts and circumstances relevant to
Easons death and to L.D.G. and its business practices.
At the start of the trial on damages the superior court
ruled that it would allow only evidence relevant to determining
wrongful death damages and that it would not allow evidence
relevant only to issues of legal liability. The superior court
based this decision on its conclusion that L.D.G.s legal
liability had already been determined and that L.D.G. could not
now escape the implications of its decision not to join Freeman,
the individual arguably most responsible for Easons death, as a
third-party defendant. L.D.G. objected to this ruling at trial,
asserting two primary arguments. First, L.D.G. asserted that it
was important for the jury to know that it was Freeman who shot
and killed Eason. Second, L.D.G. again attempted to assert its
interpretation that dram shop liability only applies to the sale
of alcohol (but not to allowing an intoxicated person to consume
alcohol) and, accordingly, renewed its argument that the alcohol
consumed by Mr. Freeman was legally sold to him as far as the
jurys verdict was concerned.19
On appeal, L.D.G argues that the superior court erred
in refusing to allow it to present any evidence pertaining to the
particular circumstances of Easons death, thus forcing the jury
to make a determination in a vacuum as to what damages were
appropriate as a natural and proximate cause of defendant L.D.G.s
wrongful conduct. L.D.G. also implicitly raises the issue of
Freemans liability by noting that the superior courts decision
meant that the jury would not hear evidence concerning the
circumstances surrounding the shooting by Freeman . . . , as well
as the circumstances leading up to Freemans criminal act.
Under Alaska Rule of Evidence 402, [e]vidence which is
not relevant is not admissible. We review a trial courts
admission or exclusion of evidence for abuse of discretion.20
Where the admissibility of evidence turns on whether the trial
court applied the correct legal standard, we review the [lower]
courts decision using our independent legal judgment.21 Here, the
superior courts decision to exclude evidence pertaining to
Freemans role in Easons death was based, in part, on its
interpretation of the law controlling the apportionment of
damages. Therefore, because the superior courts decisions on the
admissibility of evidence relating to the circumstances of Easons
death involved questions of law, we review those decisions de
novo.
Although L.D.G. appears to believe that the details of
Freemans role in the death of Eason are relevant to the jurys
determination of the damages owed by L.D.G., L.D.G. failed to
show that the evidence was relevant. At trial, the superior
court refused to admit this evidence because of L.D.G.s failure
to name the murderer as a third-party defendant. Alaska Statute
09.17.080 provides for the apportionment of damages in actions
involving the fault of more than one person, but specifically
prohibits allocating fault to a person . . . identified as a
potentially responsible person if the parties had a sufficient
opportunity to join that person in the action but chose not to.22
This statute requires that [i]n order to include a non-party in
the fault allocation, a defendant must identify the non-party as
someone who the defendant will argue is at fault and that even if
the defendant argues that a non-party was at fault, that
non-party cannot be included in the allocation of fault if there
was a sufficient opportunity to join that non-party.23 A
sufficient opportunity is found where the non-party is (A) within
the jurisdiction of the court; (B) not precluded from being
joined by law or court rule; and (C) reasonably locatable.24
Here, L.D.G. never attempted to bring Freeman into this
lawsuit through joinder and never argued that it did not have a
sufficient opportunity to join Freeman because he fell into any
of the three statutory categories.25 Because L.D.G.s liability
for Easons death was established at the original trial, evidence
pertaining to Freemans role in Easons death would not be relevant
to the issue of damages unless L.D.G. were seeking to apportion
damages to Freeman. But L.D.G. did not take the required steps
to ensure that damages could be apportioned to Freeman.
Accordingly, the superior court did not err in ruling that
evidence of Freemans role in Easons death would not be admitted
at the trial on damages.
L.D.G. next argues that evidence pertaining to the
facts of Easons death and L.D.G.s actions in serving Freeman is
admissible because it is relevant to Alaskas wrongful death
statute, AS 09.55.580. That statute limits damages to the
natural and proximate consequence of the negligent or wrongful
act or omission of another.26 L.D.G. argues that this provision
raises anew the question of the scope of L.D.G.s liability.
L.D.G. also argues that the statutes instruction that the court
or jury shall consider all the facts and circumstances and from
them fix the award27 essentially opens the door to any evidence
relating to the negligent or wrongful act. Essentially, this
comes down to a question of whether the wrongful death statute
requires an inquiry into the underlying facts of the events that
led up to the decedents death including a renewal of questions
of actual and proximate causation or whether the inquiry
indicated by the statute is limited to exploring aspects of the
life of the decedent and of any surviving dependents that could
be relevant to setting damages.
In defense of the first theory, L.D.G. cites three
cases from other jurisdictions where courts purportedly admitted
evidence on the circumstances and facts surrounding an accident
even after the defendant had admitted liability. None of the
cases cited by L.D.G. are analogous to the question at issue,
however, because in all three cases the amount of damages awarded
depended on the nature and extent of the injuries received and
the admitted testimony was specifically relevant to those
injuries. In Long v. Yellow Cab Co.,28 the court ruled that
evidence of the details of a car accident were admissible where
the defendant taxi operator disputed that the plaintiffs injury
was caused by the accident;29 in Riordan v. Gould Engineering,
Inc.,30 the court ruled that evidence of the pain and suffering a
decedent husband experienced when he suffocated after being
buried in a construction accident was relevant to his wifes suit
for damages and therefore was admissible;31 and in Piper v. Barber
Transportation Co.,32 the court ruled that in a suit resulting
from an automobile accident evidence of the force of impact and
the character of the plaintiffs injury were relevant and
admissible where the plaintiff sought damages for pain and
suffering.33
In this case, in contrast, the evidence that L.D.G.
sought to admit was not relevant to the damages sought by Brown.
The damages Brown sought, on behalf of Easons surviving
dependents, were economic damages and the dependents non-economic
damages for past and future loss of society, comfort, care,
protection, affection, and companionship of Tracy Eason, and for
sorrow, mental distress, and grief suffered as a result of the
death of Tracy Eason. The wrongful death statute directs juries,
in fixing the amount of damages, to consider (1) deprivation of
the expectation of pecuniary benefits, (2) loss of contributions
for support, (3) loss of assistance or services, (4) loss of
consortium, (5) loss of prospective training and education, and
(6) medical and funeral expenses.34 None of these claims or
elements requires any consideration of the nature of Easons
injuries or of any of the events leading up to her death.
Instead, L.D.G. appears to have sought introduction of
the evidence in order to relitigate questions of causation,
including the degree to which the actions of L.D.G.s
representative allowing Freeman to consume the remaining
portions of his drinks contributed to Easons death. Because the
jury and trial court had already determined legal cause and
established L.D.G.s liability in the original trial, and because
there was no reason for the jury in the trial on damages to be
informed of the specific role L.D.G. played in bringing about
Easons death, the superior court did not err in excluding
evidence pertaining to the circumstances of Easons death from the
trial on damages.
C. The Trial Court Did Not Err in the Trial on Damages in
Instructing the Jury on Legal Cause.
In an extension of its argument regarding the
admissibility of evidence under the wrongful death statute,
L.D.G. also argues that the superior court erred in giving an
abridged instruction on legal cause at the trial on damages. At
trial, the court instructed the jury:
For each item of claimed loss, you must
decide whether it is more likely true than
not true that the beneficiary that is the
children had such a loss or are reasonably
probable to have such a loss in the future;
and two, that the loss was legally caused by
the death of Tracy Eason . . . . If one or
both of these things are not true with
respect to a particular item of loss, you may
not make an award for that loss.
L.D.G. requested at trial that the jury receive a different
instruction on cause identified only as the Alaska civil jury
pattern instruction and the definition of legal cause of death.
There was no need for the jury to receive a full
instruction on legal cause because the issue of L.D.G.s liability
for Easons death was not before the jury in the damages trial.
Before instructing the jury on the legal requirements for
determining damages, the superior court stated that L.D.G., Inc.
is legally responsible for the death of Tracy Eason. The
wrongful death statute requires that any damages awarded under
the statute be those which are the natural and proximate
consequence of the negligent or wrongful act or omission of
another.35 The only questions for the jury, then, were whether
the children had suffered harm and whether Easons death was the
legal cause of that harm such that an award of damages against
the party already determined to be legally responsible for that
death would be justified. Because the instruction on legal cause
given by the superior court was sufficient to allow the jury to
make this determination, the superior court did not err in
declining to give a more extensive instruction on legal cause.
D. It Was Error To Grant Gjovigs Motion for a Directed
Verdict.
Brown cross-appeals, challenging the trial courts
directed verdict on the issue of Gjovigs personal liability.
Gjovig argued that there was insufficient evidence to show that
L.D.G.s corporate form had been abused such that the corporate
veil should be pierced and Gjovig, L.D.G.s sole shareholder,
should be held personally liable. Deciding that there was
insufficient evidence to support an argument for piercing the
corporate veil, the superior court granted Gjovigs motion for a
directed verdict.36
Before reaching the merits of the piercing issue, the
superior court considered two preliminary issues: whether Browns
failure to plead the piercing issue foreclosed his right to argue
it at trial, and whether Gjovigs status as a partner to the
corporation negated the need for Brown to pierce the corporate
veil. We consider these issues in turn.
1. Failure to plead the piercing theory
1. The superior court, in its ruling on Gjovigs motion for a
directed verdict, noted that Brown did not plead piercing the
corporate veil as a count in the complaint. As Brown argues,
that deficiency alone is not sufficient to keep the question from
going to the jury. We have previously held, in allowing a party
to proceed on a piercing the corporate veil theory after
originally bringing suit on a de facto partnership theory, that
if a party has notice of the conduct for which the opposing party
is seeking relief, the opposing party may recover under any
theory supported by the evidence.37 Here, Brown indicated in
early December 2002, six months before the start of trial, that
he was prepared to argue that L.D.G.s corporate veil should be
pierced in order to hold Gjovig personally liable. Brown
submitted supplemental proposed jury instructions, including two
instructions pertaining to piercing the corporate veil,
accompanied by a notice indicating that although Brown maintained
his theory that Gjovig was liable as a partner or joint-venturer
of L.D.G., he would also argue that the corporate veil should be
pierced. L.D.G. and Gjovig, therefore, were on sufficient notice
of Browns piercing the corporate veil theory.
2. Gjovigs liability as a partner
Brown argues that Gjovig can be held personally liable
as a partner to L.D.G. whether or not L.D.G.s corporate veil is
pierced. But Browns theory that Gjovig can be held personally
liable as a partner of L.D.G. mischaracterizes Gjovigs
relationship with L.D.G. It is not disputed that Gjovig is the
sole shareholder of L.D.G., a subchapter S corporation,38 and that
L.D.G. is the owner of the J Bar B. To overlook this fact and
proceed under the theory that Gjovig may nevertheless be held
liable for the actions of the corporation as a partner would be
to do violence to the concept that a sole shareholder normally
has only very limited liability for the debts of the corporation.
We have previously affirmed the decision of a superior court that
applied the standards for piercing the corporate veil to a claim
that was originally brought under a de facto partnership theory.39
The facts which Brown alleges in support of his argument that
Gjovig and L.D.G. were engaged in a partnership including that
Gjovig did not honor the formalities of L.D.G.s corporate form,
paid wages and salaries of J Bar B employees out of his own
pocket, and intermingled corporate and non-corporate funds, and
that the corporation was undercapitalized should therefore be
considered under the standards for piercing the corporate veil.
We now turn to the merits of that issue.
3. Piercing the corporate veil
This issue comes to us on the superior courts grant of
Gjovigs motion for directed verdict. When reviewing the grant of
a motion for a directed verdict we must 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.40 If there is room for diversity of opinion
among reasonable persons, then the question is one for the jury
to decide and a directed verdict is not appropriate.41
In general, courts seek to recognize and uphold the
principles that the corporation exists as a separate legal entity
and that owner liability for the debts of the corporation is
limited.42 Courts therefore exhibit a preference against piercing
the corporate veil and will do so only in exceptional
circumstances.43
The corporate veil, however, may be pierced if the
corporate form is used to defeat public convenience, justify
wrong, commit fraud, or defend crime a misconduct standard.44 In
addition, in Uchitel Co. v. Telephone Co.,45 we also recognized
that the corporate veil may be pierced when a corporation is
nothing more than a mere instrument of a shareholder, and we laid
out six primary factors to evaluate the rationality of imposing
personal liability on the shareholder.46 Under this mere
instrument test, we ask whether (a) the shareholder sought to be
charged owns all or most of the stock of the corporation; (b) the
shareholder has subscribed to all of the capital stock of the
corporation or otherwise caused its incorporation; (c) the
corporation has grossly inadequate capital; (d) the shareholder
uses the property of the corporation as his own; (e) the
directors or executives of the corporation act independently in
the interest of the corporation or simply take their orders from
the shareholder in the latters interest; and (f) the formal legal
requirements of the corporation are observed.47 It is not
necessary for all six factors to be satisfied before
instrumentality can be found, but the factors help the fact-
finder to decide whether the evidence favors piercing the veil.48
Viewing the evidence in the light most favorable to
Brown, reasonable inferences can be drawn that are sufficient to
create a jury question under either veil-piercing theory. A
reasonable fact-finder could infer that Gjovig (1) was the sole
shareholder and officer of L.D.G.; (2) did not honor the
formalities of L.D.Gs corporate form, but paid employees out of
his own pocket and apparently under the table;49 (3) commingled
personal and corporate funds, not only by using personal funds to
pay employees but also by apparently taking corporate money for
personal use without accounting for it;50 (4) undercapitalized
L.D.G., as demonstrated by his payment of employees out of his
own pocket, his evident failure to obtain insurance to cover
adverse judgments, and his taking corporate money for personal
use without accounting for it;51 (5) manipulated the actual
business in and out of the corporate form to both avoid tax laws
and make sure that potential claimants against the bar operations
would be unable to obtain a satisfiable judgment;52 and (6) hid
behind L.D.G.s corporate form to try to avoid liability for his
employees dram shop violations.
These inferences would satisfy several of the
instrumentality factors, and would therefore be sufficient to
create a jury question on whether L.D.G. was a mere instrument of
Gjovig to the extend that L.D.Gs corporate form should be
disregarded.53 The inferences regarding manipulations of the
corporate form to avoid taxes, enforceable judgments, and
employer liability are also sufficient to create a jury question
on whether Gjovig violated the misconduct standard that is,
whether he used the corporate form of L.D.G. to defeat public
convenience, justify wrong, commit fraud, or defend crime.54 The
trial court concluded that the evidence presented by Brown was
never really tied together in any kind of coherent theory that a
jury could chew on in any reasonable way according to standards,
but the jury instructions proffered by Brown on piercing the
corporate veil combined with closing arguments could have cured
that perceived defect.
We conclude that the issue of piercing the corporate
veil was properly before the superior court and that there was
sufficient evidence for the question to go to the jury. It was
therefore error to grant Gjovigs motion for directed verdict and
to dismiss him from the lawsuit. We remand for jury trial on
Browns claim that the corporate veil should be pierced and Gjovig
subjected to personal liability.
E. The Trial Court Did Not Abuse Its Discretion in the
Original Trial in Finding that the Complaint Was
Sufficiently Broad To Allow the Jury To Determine
Whether L.D.G. Was Liable for Allowing an Intoxicated
Person To Consume Alcohol.
L.D.G. argues that Browns complaint alleged only that
L.D.G. served alcohol to Freeman in violation of the dram shop
statute, and that it was therefore error for the superior court
to allow the jury to receive instruction and consider liability
on the issue of whether L.D.G. violated the dram shop statute in
allowing Freeman to consume alcohol on the bars premises while he
was visibly intoxicated. Browns amended complaint alleged that
defendants through their agents or employees, including Sharine
Christensen, served alcoholic beverages to a drunken person, one
Robert Freeman, who was obviously and visibly intoxicated, and
that this action violated AS 04.16.030. Alaska Statute 04.16.030
prohibits certain conduct relating to drunken persons, including:
(a) A licensee, an agent, or employee may not
with criminal negligence
(1) sell, give, or barter alcoholic beverages
to a drunken person;
. . .
(3) allow a drunken person to enter and
remain within licensed premises or to consume
an alcoholic beverage within licensed
premises.
At trial, L.D.G. objected to the jury instruction
pertaining to dram shop liability, arguing that theres nowhere .
. . in the plaintiffs complaint where they allege that L.D.G.,
Inc., and J Bar B are liable because they allowed Freeman to
consume alcoholic beverages when he was a drunken person on the
premises.55 The superior court ruled at trial that it would allow
the instruction on the consumption theory of dram shop liability,
finding that the complaint was sufficiently broadly pleaded to
reach all forms of provision under AS 04.16.030.56 Jury
instruction 22 included instructions on dram shop liability for
both selling alcoholic beverages to a drunken person and for
allowing a drunken person to consume an alcoholic beverage in the
bar. The special verdict form included separate questions on
whether an employee of the bar sold alcohol to Freeman when he
was a drunken person and whether an employee of the bar allowed
Freeman to consume an alcoholic beverage in the bar when he was a
drunken person. L.D.G. now argues that it was prejudiced by the
inclusion of this jury instruction and separate special verdict
questions because the jury found that L.D.G. did not sell alcohol
to Freeman when he was a drunken person but did find that L.D.G.
allowed Freeman to consume alcohol on the premises when he was a
drunken person.
We review superior court decisions regarding the
sufficiency of a complaint for abuse of discretion.57 We have
held that courts should construe complaints liberally under the
theory that a party should be granted the relief to which he is
entitled under the evidence, regardless of the theory of his
pleadings.58 This is because the complaint's function is to put
the opposing party on notice of the nature of the claim being
asserted, leaving it to discovery and other pretrial procedures
to narrow the issues.59 Here, Browns complaint alleged a
violation of AS 04.16.030 without specific citation to any
particular subsection. Although the complaint did reference
Christensens actions in serv[ing] alcoholic beverages to a
drunken person, this language is not so tailored to AS
04.16.030(a)(1) (sell, give, or barter alcoholic beverages to a
drunken person) that it would preclude additional consideration
of liability under AS 04.16.030 (a)(3) (allow a drunken person to
. . . consume an alcoholic beverage within licensed premises).
Therefore, L.D.G. was on sufficient notice that Brown was
alleging violation of AS 04.16.030, including the prohibition
against allowing a drunken person to consume alcohol on a
licensees premises. Accordingly, the superior court did not err
in finding that the complaint was sufficiently broad to permit
the jury to determine liability on the consumption theory of dram
shop liability.
F. The Trial Court Did Not Abuse Its Discretion in the
Trial on Damages by Admitting Hearsay Testimony
Relating to Non-Economic Damages.
The trial court admitted hearsay testimony, over
L.D.G.s objection, regarding Easons plans for spending time with
her children in the future and testimony regarding statements
made by Easons children about their feelings toward their mother.
L.D.G. argues that it was error to admit this hearsay testimony
as evidence of the non-economic damages claimed by Easons
children at the trial on damages. Hearsay is a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.60 Hearsay is not admissible unless it falls within a
specific exception.61 A hearsay statement is admissible if it is
[a] statement of the declarants then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health) offered
to prove the declarants present condition or future action.62
All of the challenged testimony falls within a hearsay
exception. The boys grandfather, Robert Brown, testified about
Easons current custody arrangements for her sons and her plans
for the future. Brown testified that Tracy Eason was divorced
from the boys father, Terry Eason, and that Justin lived with his
father in Oregon while Jordan had lived with his mother in Oregon
prior to her move to Alaska. Eason had moved to Alaska from
Oregon without Jordan approximately three weeks before her death.
Brown testified about Easons hopes and plans regarding how this
move would affect the amount of contact she had with her sons:
Her plans was to get herself established, get a house, and then
go back down and get Jordan. And then they would have swapped
custody back and forth after that. I think it was they was
figuring on Justin coming up in the summer when he wasnt in
school. L.D.G. objected to this testimony as hearsay, and the
superior court overruled the objection. Browns wife, Goldie
Brown, the boys grandmother, also testified about her
conversations with Eason regarding Easons plans for custody and
visitation with Justin and Jordan. L.D.G. objected to this
testimony as well. The superior court did not abuse its
discretion in overruling L.D.G.s objection because the Browns
testimony regarding Easons statements about her plans for future
visitation with her children was admissible as a statement of
Easons then existing state of mind regarding her intent and
plan[s].63 Because all of the testimony that L.D.G.
challenges as inadmissible hearsay falls clearly within a hearsay
exception, the superior court did not abuse its discretion in
permitting the testimony at trial.
G. The Superior Court Did Not Err in Applying a Single
Damages Cap to the Aggregate Non-Economic Damages Award
of Both Surviving Dependents.
The jury in the damages trial returned a verdict
awarding each boy economic damages and each boy $565,798 in non-
economic damages. L.D.G. then moved to impose a single damages
cap under AS 09.17.010 to the combined awards for total aggregate
non-economic damages of $421,824 ($8,000 multiplied by 52.728
years, Easons life expectancy at the time of her death), split
between the two boys. Brown responded by arguing that the
statutory damages cap is unconstitutional as a denial of the
right to trial by jury and a violation of equal protection.
Brown also argued that the statute, if constitutional, should be
applied in this case as a separate cap on the non-economic
damages awarded to each boy. In the alternative, Brown argued,
the provision of the damages cap statute providing a cap of one
million dollars to cases of severe permanent physical impairment
should apply in this case. The superior court found that the
damages cap under AS 09.17.010(b) applied in this case and that
the statute imposed a single cap on all non-economic damages
arising from Easons death. The superior court also determined
that Brown had not met his burden of establishing that the
statute violated the constitution.
After Brown moved for reconsideration, the court
ultimately reaffirmed its holding that the statute is
constitutional, both on its face and as applied. The superior
court then entered a single award for both boys for non-economic
damages of $421,824.
1. The statutory damages cap on wrongful death
recovery is not unconstitutional on its face as a
denial of the right to trial by jury.
Brown renews, on appeal, his argument that AS
09.17.010, the damages cap statute, is unconstitutional on its
face as a denial of the right to trial by jury. Article I,
section 16 of the Alaska Constitution provides:
In civil cases where the amount in
controversy exceeds two hundred fifty
dollars, the right of trial by a jury of
twelve is preserved to the same extent as it
existed at common law. The legislature may
make provision for a verdict by not less than
three-fourths of the jury and, in courts not
of record, may provide for a jury of not less
than six or more than twelve.
The non-economic damages statute, AS 09.17.010(b), provides:
Except as provided under (c) of this section,
the damages awarded by a court or a jury
under (a) of this section for all claims,
including a loss of consortium claim, arising
out of a single injury or death may not
exceed $400,000 or the injured persons life
expectancy in years multiplied by $8,000,
whichever is greater.
We have previously held, in Evans ex rel. Kutch v. State,64 that
the cap on non-economic damages under AS 09.17.010 is facially
constitutional.65 In Evans, a group of injured parties
contemplating tort action sought a judgment from the superior
court declaring the 1997 tort reform legislation including the
cap on non-economic damages at issue in the present case to be
unconstitutional on its face.66 The superior court declined to
make that finding and instead granted summary judgment in favor
of the state.67 A four- justice panel of this court heard the
appeal and, in a divided opinion, affirmed the superior courts
ruling.68 The controlling opinion held that [t]he decision to
place a cap on damages awarded is a policy choice and not a re-
examination of the factual question of damages determined by the
jury.69 An evenly divided decision by this court results in an
affirmance,70 but that decision is not binding in future cases.71
A full court revisited the issue in C.J. v. State,72 where the cap
on non-economic damages for wrongful death was upheld against a
constitutional attack.73
Brown argues that the damages cap statute violates the
right to jury trial because [t]he jurys factual finding that a
plaintiff is entitled to recover damages is meaningless unless
the plaintiff can collect those damages, and depriving a litigant
of that to which a jury has determined him to be entitled in a
civil action, by legislative fiat, is not consistent with the
constitutional guarantee of the right to jury trial. But that
argument is foreclosed by our decisions in Evans and C.J.
The state, as intervenor, proposes another reason that
the common law right to trial by jury incorporated by the Alaska
Constitution does not apply to the damages cap in this case:
Wrongful death actions are statutorily created and have
traditionally included limits on the amounts that are
recoverable. The Alaska Constitution provides that the right of
trial by a jury of twelve is preserved to the same extent as it
existed at common law.74 But the right to recovery for a wrongful
death did not exist in the common law and is instead a creature
of statute.75 We have held that [n]o right to trial by jury
attaches to an action for a statutory remedy unless the statute
so provides or the statutory remedy is a codification of a common
law remedy.76 Brown argues that the guarantee of a right to trial
by jury applies to statutorily created causes of action for money
damages to the same extent it applies under the common law. To
support this argument Brown adopts an overbroad interpretation of
our holding in Loomis Electronic Protection, Inc. v. Schaefer.77
In holding that the plaintiffs who brought suit under
the statutorily created cause of action for employment
discrimination were entitled to a trial by jury, the Loomis court
held that the legislature had drafted the statute to be analogous
to a number of tort actions recognized at common law, and,
therefore that the plaintiffs were entitled to recover the
traditional form of relief offered in the courts of law.78 But
there is no indication in the present case that the legislature
intended recovery for wrongful death actions to be analogous to
other tort actions. Indeed, Alaskas first wrongful death statute
enacted by the territorial legislature in 1900 limited
recoverable damages to $10,000.79 The territorial legislature
amended this statute in 1955, but retained a damages cap of
$50,000.80 Although the wrongful death statute itself no longer
directly incorporates a damages cap,81 AS 09.17.010 now serves the
same function. Accordingly, the constitutions incorporation of
the common law right to a trial by jury does not apply to the
application of the damages cap to a statutorily created cause of
action under the wrongful death act.
We reaffirm our holdings in Evans and C.J. that the non-
economic damages cap does not violate the constitutional right to
a trial by jury. A damages cap does not intrude on the jurys
fact-finding function because the cap represents a policy
decision that is applied after the jurys determination.82 The
jury must still make a determination of the amount of damages to
be awarded, and the damages cap is applied only in those cases
where the jury has made a determination that the damages should
be higher than the cap. The law setting a limit on allowable
damages does not destroy the jurys role in awarding damages; it
merely limits it.
2. The statutory damages cap on wrongful death
recovery is not unconstitutional as applied in
this case as a denial of equal protection.
Brown next argues that even if the damages cap statute
is constitutional on its face, it is an unconstitutional denial
of equal protection as applied to the facts of this case. Brown
claims that the damages cap statute, as applied to multiple
statutory dependents, discriminates irrationally among claimants
who have siblings by reducing their recovery in [a] manner that
bears no relationship to their actual losses. Brown essentially
argues that, because the superior court applied a single damages
cap to the aggregate non-economic damages awards of both boys
together, each boy recovered half as much as a single surviving
decedent would have received in an otherwise identical set of
circumstances. Therefore, Brown argues, the brothers were
penalized for being siblings.
We take a multi-step, sliding-scale approach to equal
protection analysis.83 First, we determine the importance of the
individual interest impaired by the challenged enactment.84 Next,
we examine the importance of the state interest underlying the
enactment, that is, the purpose of the enactment.85 The
importance we attach to the individual interest dictates the
level of importance of the state interest from mere legitimacy
to a compelling interest that will satisfy equal protection.86
Finally, we examine the nexus between the state interest and the
states means of furthering that interest.87 The importance of the
individual interest also controls the required degree of nexus,
from substantial relationship to least restrictive means.88
In Evans, the controlling opinion rejected the
plaintiffs claim that the damages cap impaired their important
interest in access to the courts and instead held that the
plaintiffs interests in unlimited damages are merely economic.89
In C.J., we adopted the equal protection analysis of the
controlling opinion in Evans, holding that we have consistently
held that restrictions on the types or amounts of damages that a
plaintiff can pursue in court impair economic interests only.90
Economic interests receive only minimal protection under equal
protection analysis.91 Under this minimum level of scrutiny the
states objective must be legitimate, and the means for achieving
the objective must bear a fair and substantial relationship to
the accomplishment of the objective.92
We held in C.J. that the non-economic damages cap
survives minimal scrutiny, noting that the court does not require
a perfect fit between a legislative classification and the
government objective it is intended to further, and that although
the rationale underlying the legislation should be logically
plausible, there is no requirement that it be proved in court.93
The legislature appears to have intended, in passing the tort
reform legislation that included AS 09.17.010, to control
excessive compensation for tortious injuries,94 and to reduce the
costs of liability and malpractice insurance premiums.95 The
court in C.J. concluded that the legislature was entitled to make
the conclusions that provided the rationale for passing the
legislation, and that the legislature could reasonably have
concluded that any alternative method of lowering insurance costs
would have been less fair than a cap on noneconomic damages.96
The court therefore held that the damages cap satisfies the means-
end fit requirement.97
Here, Brown focuses his arguments on the issue of
fairness, claiming that an otherwise constitutional cap on
recovery may not be constitutionally applied in situations where
there is irrational discrimination among claimants based upon
circumstances that bear no relationship to the actual losses
sustained by the claimants. To support this argument, Brown
cites to Gilmore v. Alaska Workers Compensation Board,98 where we
held that a statute prescribing the wage base on which an injured
workers disability benefits were calculated was unconstitutional
as a violation of equal protection because it had the potential
to produce substantially different compensation rates for workers
who were in important respects similarly situated.99 We
determined in Gilmore that the statute at issue was only subject
to minimal scrutiny,100 but that it nevertheless violated equal
protection because the benefits levels it produced for injured
workers were only randomly related to an injured workers actual
losses. Therefore, did not bear a substantial relationship to
the goal of compensating injured workers for their actual losses.101
In this instance, Brown argues, it is similarly unfair to apply a
single cap to the aggregate non-economic damages awards of
multiple surviving dependents because each dependent then
receives less of the award than would be available to a single
surviving dependent in otherwise identical circumstances. Brown
asserts that the amount of damages each surviving dependent
receives is determined, at least in part, by the number of
siblings or other dependents with whom they must split the award,
and not by each individuals actual losses.
L.D.G. argues that the application of a single damages
cap regardless of the number of surviving dependents is necessary
to achieve the legislatures objective of controlling litigation
costs and insurance rates. L.D.G asserts that the alternative,
damages awards that fluctuate based on the number of
beneficiaries, would result in unpredictable, and potentially
very large, damages awards that would frustrate the expressed
intent of the statute.102 L.D.G. also responds to Browns fairness
claims by observing that we held in C.J. that fairness is not a
determinative factor in a minimum scrutiny analysis. We noted in
C.J. that we appreciate that there will be severely injured
persons who are under-compensated as a result of this
legislation, and we are under no illusion that this result will
seem fair to them, and that it was not the role of the court to
make determinations of whether damages caps are good policy.103
L.D.G.s assessment is correct. The legislatures
approach of imposing a single statutory cap on non-economic
damages for all claims arising from a single death bears a fair
and substantial relationship to the legislatures legitimate
objective of reducing the costs of liability and malpractice
insurance premiums. Although the amount of non-economic damages
that individual beneficiaries receive may differ depending on the
number of other beneficiaries whose claims arise from the same
death, the estates themselves are still treated equally. Setting
aside the question of whether the damages cap is good policy when
applied to multiple claimants, the statutory approach of
AS 09.17.010 satisfies the requirements of equal protection.
3. The trial court did not err in the trial on
damages in imposing a single damages cap
applicable to all of the decedents dependents.
After the jury returned its verdict awarding each of
Easons sons $565,798 in non-economic damages, L.D.G. filed a
motion requesting the court to apply a single damages cap of
$400,000 or $8,000 multiplied by the life expectancy of the
injured party, whichever is greater to the entire award. Brown
opposed this motion on multiple grounds, including claims that
the court must impose a separate cap to the individual award to
each boy, and that the appropriate cap was the one million dollar
limit for certain personal injury awards. The court found that
the damages cap statute did not directly address actions
involving multiple claimants, but that when taken as a whole the
statute applies a single damages cap to all claims arising from a
single wrongful death, regardless of the number of claimants.
The court granted L.D.G.s motion and entered judgment in the
amount of $421,824 ($8,000 multiplied by Easons life expectancy
of 52.728 years) split between the two boys. Brown now asks us
to narrowly construe the damages cap statute and to hold that
under AS 09.17.020(b) Easons sons each have a separate claim
subject to a separate damages cap. In the alternative, Brown
argues that we should hold that the one million dollar damages
cap for personal injuries involving severe permanent physical
impairment under AS 09.17.020(c) applies in this case.
We apply our independent judgment when reviewing a
trial courts interpretation of a statute, looking to the meaning
of the language, the legislative history, and the purpose of the
statute, and adopting the rule of law that is most persuasive in
light of precedent, reason, and policy.104 As a threshold issue,
Brown argues that the damages cap statute should be narrowly
construed because it derogates the common law rule that permits a
jury to determine damages unfettered by statutory constraint,
subject to judicial review only.105 L.D.G. argues that we are not
required to construe the damages cap statute narrowly in this
case because the right to recovery for a wrongful death did not
exist in the common law and is instead a creature of statute.106
Brown asserts that although the right to recover damages for the
wrongful death of another is of statutory origin, we have
previously held in Loomis Electronic Protection, Inc. v. Schaefer107
that the Alaska Constitutions incorporation of the common law
right to a jury trial applies to statutorily created causes of
action to the same extent as it applies to claims arising under
the common law.108 As discussed above in section IV.G.1, Loomis
has a narrower holding than that advanced by Brown. In holding
that the plaintiffs who brought suit under the statutorily
created cause of action for employment discrimination were
entitled to a trial by jury, the Loomis court held that the
legislature had drafted the statute to be analogous to a number
of tort actions recognized at common law and that therefore the
plaintiffs were entitled to recover the traditional form of
relief offered in the courts of law.109 We did not, therefore,
hold that all statutorily created causes of action are entitled
to the same guarantees and protections afforded under the common
law. Accordingly, we need not narrowly construe the damages cap
statute as it is applied to a statutorily created cause of action
under the wrongful death statute. However, because the language
of the statute and the legislative history at issue in this case
are sufficiently clear under any construction, this question of
the scope of statutory interpretation is essentially moot.
The non-economic damages statute, AS 09.17.010, reads
in pertinent part:
(a) In an action to recover damages for
personal injury or wrongful death, all
damages claims for noneconomic losses shall
be limited to compensation for pain,
suffering, inconvenience, physical
impairment, disfigurement, loss of enjoyment
of life, loss of consortium, and other
nonpecuniary damage.
(b) Except as provided under (c) of this
section, the damages awarded by a court or a
jury under (a) of this section for all
claims, including a loss of consortium claim,
arising out of a single injury or death may
not exceed $400,000 or the injured persons
life expectancy in years multiplied by
$8,000, whichever is greater.
(c) In an action for personal injury, the
damages awarded by a court or jury that are
described under (b) of this section may not
exceed $1,000,000 or the persons life
expectancy in years multiplied by $25,000,
whichever is greater, when the damages are
awarded for severe permanent physical
impairment or severe disfigurement.
Brown argues that the phrase arising out of a single injury or
death from section (b) should be interpreted as applying not to
Easons death but to the separate claims of each of her two
surviving dependents, Justin and Jordan. To support this
assertion, Brown notes that every surviving dependent has an
individual cause of action for loss of parental consortium,110
regardless of whether a suit is brought on behalf of the
individual dependents by a single personal representative.111
Brown argues, then, that under the statute Justin and Jordan are
each an injured person, and that therefore a separate damages cap
should be applied to each, with the amount of the individual
damages cap calculated based on each boys life expectancy.
L.D.G. responds by arguing that the meaning of the
statute is plain and unambiguous on its face and that the cap
applies to all claims arising out of a single death, including
all wrongful death claims arising from a single death regardless
of the number of children or wrongful death act beneficiaries
making claims. L.D.G. further bolsters its argument by pointing
to the legislative history behind AS 09.17.010, especially the
legislatures intent to address the perceived problems of
excessive damages awards and increased costs for malpractice and
other liability insurance.112 L.D.G. points out that the explicit
intent of the legislature in imposing the non-economic damages
cap on claims arising out of a single death would be frustrated
rather than furthered by a construction of the statute that
effectively removed the cap in situations where the decedent is
survived by many dependents who have suffered non-economic
damages as a result of a single death.
The states brief and the briefs of amicus curiae also
dispute Browns interpretation of the statute. They note that even
if each of Easons surviving dependents has an individual
consortium claim, these consortium claims are derivative of a
single death.113 They further point to additional legislative
history, quoting Representative Porters presentation of an
overview of the damages cap bill to the Senate Rules Committee
and his statement that the versions of the bill from both the
finance and rules committees apply the cap per occurrence.114
L.D.Gs argument that the statute applies a single cap
to all consortium claims arising from a single death regardless
of the number of claimants is persuasive, particularly in light
of the legislative history. The clear language of the statute
indicates that a single cap applies to all claims arising out of
a single . . . death.115 There is no modifier of the phrase all
claims. The statute references consortium claims in the same
sentence in which it applies the single cap to all claims arising
out of a single injury or death.116 This strongly suggests that
the legislature was aware that multiple individuals could have
claims arising from a single death or injury, and that the
legislature nevertheless intended to apply a single cap to all
such claims. Had the legislature intended the meaning advanced
by Brown, it would have specified that the cap applied to all
claims brought by each claimant. Instead, the legislative
history indicates that the legislature intended for the cap to
apply to all claims arising from each occurrence.117
Brown argues, in the alternative, that subsection (c)
which provides a cap of $1,000,000 for cases of severe permanent
physical impairment should apply in this case.118 This argument
hinges on Browns assertion that an injury which leads to death is
obviously the ultimate in severe permanent physical impairment.
In his reply brief, Brown identifies what he interprets as an
inconsistency between the language of sections (b) and (c).
Section (b) provides that the non-economic damages arising out of
a single injury or death may not exceed $400,000 or the injured
persons life expectancy in years multiplied by $8,000, whichever
is greater.119 Section (c) provides that the damages in an action
for personal injury may not exceed $1,000,000 or the persons life
expectancy in years multiplied by $25,000, whichever is greater,
when the damages are awarded for severe permanent physical
impairment or severe disfigurement.120 Brown argues that because
section (b) which applies to both personal injury and wrongful
death actions refers only to the injured persons life
expectancy, the statute implicitly includes deceased persons
within the broader category of injured persons. Brown then
argues that if deceased persons and injured persons are treated
the same under the statute, and if as L.D.G. and the state
assert the statute applies only one damages cap to all claims
arising from Easons death, then Easons death should be considered
a personal injury and the greater damages cap under section (c)
should apply. Essentially Brown argues that the statute cannot
be interpreted in a wrongful death action to both apply one
damages cap measured by the life expectancy of the injured (i.e.
deceased) person, and to exclude deceased persons from the
category of injured persons having experienced the most severe
permanent physical impairment.
Browns logic is not persuasive. It is logically
consistent to interpret the statute as applying, under section
(b), one cap to claims for damages from most injuries and all
deaths, and applying, under section (c), a higher cap to certain
injuries with the potential for the most serious, debilitating,
and long-term impacts on the injured person. The impact of most
injuries on the injured person, and of all deaths on the
survivors of the decedent, are no doubt significantly felt in the
short term and capable of some lasting effects in the long term.
However, while most injured persons and surviving dependents have
a strong chance of moving on with their lives in the aftermath of
the unfortunate events that give rise to their claims, there are
some injured persons whose injuries are so significant that they
will permanently and seriously alter the course of the injured
persons life. It is these severely injured persons, and not the
survivors of a decedent, whom the legislature recognized were in
need of the greatest non-economic damages recoveries. This
interpretation avoids the logical inconsistencies identified by
Brown, but without the strained logic that death is a form of
impairment for purposes of calculating damages.
The superior court, therefore, did not err in finding
that a single damages cap calculated under section (b) should be
applied to the aggregate non-economic damages awarded to both
boys in this case. Additionally, the superior court did not err
in calculating the size of the damages cap applicable in this
case by multiplying Easons life expectancy (52.728 years) by
$8,000 to reach a total cap of $421,824.
V. CONCLUSION
For the reasons discussed above, we AFFIRM the superior
courts decision in all respects with the exception of its
dismissal of Larry Gjovig from the lawsuit, and we REMAND for
trial of the issue of piercing the corporate veil.
_______________________________
1 More extensive analysis of the relevant standard of
review for particular issues is provided where appropriate in the
discussion below.
2 Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974).
3 See Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999)
(amendment of complaint).
4 Yang v. Yoo, 812 P.2d 210, 217 (Alaska 1991).
5 Marsingill v. OMalley, 128 P.3d 151, 155-56 (Alaska
2006) (quoting Alderman v. Iditarod Props., Inc., 104 P.3d 136,
140 (Alaska 2004).
6 Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 646
n.50 (Alaska 2007).
7 State v. Alaska Civil Liberties Union, 978 P.2d 597,
603 (Alaska 1999).
8 Alaskans For Efficient Govt, Inc. v. Knowles, 91 P.3d
273, 275 (Alaska 2004).
9 Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974); see also Kava v. American Honda Motor Co., 48 P.3d
1170, 1176 (Alaska 2002).
10 Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007); see
also Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841
(Alaska 2001).
11 882 P.2d 389 (Alaska 1994).
12 Id. at 397 (Alaska 1994) (internal citations omitted);
see also Kavorkian v. Tommys Elbow Room, Inc., 711 P.2d 521, 523
(Alaska 1985).
13 See Winschel, 171 P.3d at 148-49.
14 McCarthy v. McCarthy, 753 P.2d 137, 138 (Alaska 1988)
(holding that it was unreasonable for jury to find that
defendants negligence in pulling out of parking lot without
stopping was not legal cause of collision with car pulling into
parking lot).
15 See Winschel, 171 P.3d at 148.
16 882 P.2d at 397; see also Kavorkian, 711 P.2d at 523.
17 McCarthy, 753 P.2d at 139.
18 See Winschel v. Brown, 171 P.3d at 42, 148 (Alaska
2007).
19 The jury, on the special verdict form, declined to find
that an employee of the J Bar B [sold] alcohol to R.V. Freeman
with criminal negligence when he was a drunken person, but did
find that an employee of the J Bar B with criminal negligence
allow[ed] R.V. Freeman to consume an alcoholic beverage in the
bar when he was a drunken person.
20 Yang v. Yoo, 812 P.2d 210, 217 (Alaska 1991).
21 Marsingill v. OMalley, 128 P.3d 151, 155-56 (Alaska
2006) (quoting Alderman v. Iditarod Props., Inc., 104 P.3d 136,
140 (Alaska 2004).
22 AS 09.17.080(a)(2).
23 Evans ex rel Kutch v. State, 56 P.3d 1046, 1060 (Alaska
2002) (quoting AS 09.17.080(a)(2) (emphasis in original)).
24 AS 09.17.080(a)(2).
25 At the time of the hearing Freeman was incarcerated in
Arizona and was therefore locatable. Freeman was subject to long
arm service under AS 09.05.015(a)(3) because all actions at issue
in this case occurred within Alaska. Brown never showed that
Freeman could not be joined.
26 AS 09.55.580(b).
27 AS 09.55.580(c).
28 484 N.E.2d 830 (Ill. App. 1985).
29 Id. at 833.
30 253 N.W.2d 736 (Mich. App. 1977).
31 Id. at 738.
32 112 N.W.2d 329 (S.D. 1961).
33 Id. at 335-36.
34 AS 09.55.580(c). While it is true that the factors
listed are not exclusive, id., the jury is required to consider
the facts and circumstances relating to fixing the amount of
damages. Id. The evidence L.D.G. sought to admit did not
concern damages; it concerned causation.
35 AS 09.55.580(b).
36 It does not appear that the court ever issued a written
order regarding the dismissal of the claims against Gjovig
personally, and the courts final order does not contain any
mention of this issue. Both parties treat the superior courts
ruling on the issue at the hearing as a final order.
37 McCormick v. City of Dillingham, 16 P.3d 735, 743
(Alaska 2001).
38 Under the federal Internal Revenue Code, a subchapter S
corporation is exempt from corporate income tax because net
profits and net losses are passed directly on to the corporate
shareholders. 26 U.S.C.A. Subt. A, Ch. 1, Subch. S.
39 McCormick, 16 P.3d at 743.
40 Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974).
41 Id. at n.12.
42 Pyramid Printing Co. v. Alaska State Commn for Human
Rights, 153 P.3d 994, 1000 (Alaska 2007).
43 See Dole Food Co. v. Patrickson, 538 U.S. 468, 475
(2003) (noting that [t]he doctrine of piercing the corporate veil
. . . is the rare exception, applied in the case of fraud or
certain other exceptional circumstances).
44 Id. (quoting Elliott v. Brown, 569 P.2d 1323, 1326
(Alaska 1977)).
45 646 P.2d 229 (Alaska 1982).
46 Id. at 235. In Jackson v. General Elec., 514 P.2d 1170
(Alaska 1977) we first used the multi-factor test for mere
instrumentality in the parent-subsidiary context; in Uchitel we
imported that test into the corporation-shareholder context to
create a disjunctive test for piercing the corporate veil. See
also Nerox Power Sys., Inc. v. M-B Contracting Co., 54 P.3d 791,
801-02 (Alaska 2002) (referring to mere instrument test as an
alternate theory of personal liability to misconduct standard);
Philip Reed Strauss, Control and/or Misconduct: Clarifying the
Test for Piercing the Corporate Veil in Alaska, 9 Alaska L. Rev.
65 (1992) (describing some vacillation between our disjunctive
and conjunctive applications of the two tests, and concluding
that disjunctive treatment that the tests are distinct ways to
justify piercing the corporate veil is the most appropriate
choice on both precedent and policy grounds).
47 Uchitel, 646 P.2d at 235.
48 Nerox Power, 54 P.3d at 802. See also McCormick v.
City of Dillingham, 16 P.3d 735, 744-45 (Alaska 2001) (upholding
lower courts decision to pierce corporate veil even though first
factor was not satisfied and fifth factor was not directly
addressed); Murat v. F/V Shelikof Strait, 793 P.2d 69, 76-77
(Alaska 1990) (considering possibility that instrumentality could
be found on basis of only two out of six factors, but ultimately
declining to pierce veil because of inadequate facts).
49 Some of the bar employees had never heard of L.D.G.
Some employees never saw a W-2 form until after the litigation
was initiated. Gjovig admitted in testimony that he paid
employees with cash out of his personal pocket.
50 Gjovig testified that he received a $30,000 annual
salary from L.D.G., but it was not reflected on the corporate tax
return for 1998. That corporate tax return showed total salaries
of under $10,000, although Gjovig testified that the bar was open
every day of the year except Christmas.
51 See supra notes 50-51.
52 For example, Gjovig testified that he leased the
restaurant portion of his facility to his girlfriend, who paid no
rent for the alleged lease. But the bartender testified that
there was only one cash register and patrons of the restaurant
could order drinks from the bar. Gjovig testified that the
reason L.D.G. did not show more income and expenses on its tax
returns was because someone else owned the restaurant business.
But that was contradictory to L.D.G.s liquor license and
statements of business on L.D.G.s tax return.
53 See Uchitel Co. v. Telephone Co., 646 P.2d 229, 234
(Alaska 1982).
54 Id. at 234-35.
55 L.D.G. further objected to this jury instruction at
trial on the theory that the exceptions to the dram shop immunity
statute did not include violations for allowing a drunken person
to consume alcohol on the premises, but L.D.G. does not renew
that specific objection on appeal. We have held that the
exceptions to the dram shop immunity statute, AS 04.21.020(a),
include any violation of AS 04.16.030. See Gonzales v. Krueger,
799 P.2d 1318, 1320 (Alaska 1990) (holding that AS 04.21.020 does
not immunize vendors who violate AS 04.16.030) (quoting
Williford v. L.J. Carr Invs., 783 P.2d 235, 239 (Alaska 1989)).
56 L.D.G., in its appeal, categorizes the superior courts
action as permitting Brown to amend his complaint to allege
liability, but this argument mischaracterizes the courts action.
Brown never moved to amend his complaint. Instead, the court
responded to L.D.G.s objection to the jury instruction on dram
shop liability by ruling that the complaint was sufficiently
broad.
57 See Taylor v. Johnston, 985 P.2d 460, 463 (Alaska
1999).
58 Griffith v. Taylor, 937 P.2d 297, 307 (Alaska 1997)
(quoting Brayton v. City of Anchorage, 386 P.2d 832, 833 (Alaska
1963)).
59 Id. (internal quotation omitted).
60 Alaska R. Evid. 801.
61 Alaska R. Evid. 802.
62 Alaska R. Evid. 803(3).
63 Id. L.D.G. also made a hearsay objection to a question
for Robert Brown submitted by one of the jurors that asked about
[w]hat memories does Jordan have of his mother. L.D.G. and the
court had a prolonged discussion regarding the hearsay rule, and
the court overruled the objection. Brown was then asked Do you
have any way of knowing what memories Jordan has of his mother?
Brown answered No, because he dont talk to me about it. There
was no prejudice to L.D.G. because Brown did not testify as to
any statements made to him by Jordan regarding his memories of or
feelings toward his mother.
64 56 P.3d 1046 (Alaska 2002).
65 Id. at 1049.
66 Id. at 1048.
67 Id.
68 Id. at 1049, 1070.
69 Id. at 1051.
70 See Ward v. Lutheran Hosps. & Homes Socy of America,
Inc., 963 P.2d 1031, 1037 n.11 (Alaska 1998).
71 See City of Kenai v. Burnett, 860 P.2d 1233, 1239 n.11,
1246 (Alaska 1993) (Compton, J., concurring).
72 151 P.3d 373 (Alaska 2006).
73 Id.
74 Alaska Const., art. 1, 16.
75 See In re Estate of Maldonado, 117 P.3d 720, 724
(Alaska 2005).
76 Fairbanks N. Star Borough Sch. Dist. v. Duncan, 878
P.2d 641, 641 (Alaska 1994).
77 549 P.2d 1341 (Alaska 1976).
78 Id. at 1344 (quoting Curtis v. Loether, 415 U.S. 189,
194-96 (1974)).
79 See Kulawik v. ERA Jet Alaska, 820 P.2d 627, 631 n.8
(Alaska 1991) (quoting 353, pt. IV, Carters Annotated Alaska
Code (1900)).
80 See id. at 633 n.14 (quoting ch. 153, 1, SLA 1955).
81 AS 09.55.580.
82 Evans ex al. Kutch v. State, 56 P.3d 1046, 1051 (Alaska
2002).
83 Wilkerson v. State, 993 P.2d 1018, 1022-23 (Alaska
1999).
84 Id. at 1023 (quoting State Depts of Transp. & Labor v.
Enserch Alaska Constr. Inc., 787 P.2d 624, 631-32 (Alaska 1989)).
85 Id.
86 Id.
87 Id.
88 Id.
89 56 P.3d 1046, 1052-53 (Alaska 2002) (citing Reid v.
Williams, 964 P.2d 453, 458 (Alaska 1998) and Gilmore v. Alaska
Workers Comp. Bd., 882 P.2d 922, 926-27 (Alaska 1994)).
90 C.J. v. State, Dept of Corrs., 151 P.3d 373, 379
(Alaska 2006).
91 Reid v. Williams, 964 P.2d 453, 458 (Alaska 1998).
92 Evans, 56 P.3d at 1053 (citing Reid, 964 P.2d at 458
and Gilmore v. Alaska Workers Comp. Bd., 882 P.2d 922, 926
(Alaska 1994)).
93 151 P.3d at 380 (internal citations omitted).
94 Ch. 26, 1(1), SLA 1997.
95 Ch. 26, 1(3),(5), SLA 1997.
96 C.J. v. State, Dept of Corrs., 151 P.3d 373, 381(Alaska
2006).
97 Id.
98 882 P.2d 922 (Alaska 1994).
99 Id. at 923 (Alaska 1994).
100 Id. at 926-27.
101 Id. at 928.
102 The related issue of whether the statute actually
requires separate damages caps for each beneficiary claimant is
discussed in more detail below in part IV.G.3.
103 C.J. v. State, Dept of Corrs., 151 P.3d 373, 382
(Alaska 2006).
104 Enders v. Parker, 66 P.3d 11, 13-14 (Alaska 2003)
(internal citations omitted).
105 See Univ. of Alaska v. Shanti, 835 P.2d 1225, 1228 n.5
(Alaska 1992) (noting that [s]tatutes which establish rights that
are in derogation of common law are to be construed in a manner
that effects the least change possible in common law).
106 See In re Estate of Maldonado, 117 P.3d 720, 724
(Alaska 2005).
107 549 P.2d 1341 (Alaska 1976).
108 Id. at 1344 (Alaska 1976) (holding that article I,
section 16, of the Alaska Constitution guarantees right to jury
trial in action brought under the unlawful employment practices
statute, AS 18.80.220).
109 Id. (quoting Curtis v. Loether, 415 U.S. 189, 194-96
(1974)).
110 See Truesdell v. Halliburton Co., 754 P.2d 236, 237
(Alaska 1988) (recognizing a minor childs independent cause of
action for loss of parental consortium).
111 See In Re Estate of Pushruk, 562 P.2d 329, 330-31
(Alaska 1977) (noting that in wrongful death action, where
decedent survived by statutory beneficiaries, personal
representative is nominal party only, and that the action is
brought on behalf of the statutory beneficiary and damages are
measured by the loss to the survivors).
112 Evans ex rel. Kutch v. State, 56 P.3d 1046, 1053
(Alaska 2002) (citing to legislative goals for AS 09.17.010 given
at ch. 26, 1(1-5), SLA 1997).
113 See Chizmar v. Mackie, 896 P.2d 196, 212 n.15 (Alaska
1995) (noting that loss of consortium is a derivative claim).
114 Minutes, Senate Rules Comm. Hearing on H.B. 58, No.
075, 9 (April 15, 1997).
115 AS 09.17.010(b).
116 Id.
117 Minutes, Senate Rules Committee Hearing, supra note 110
at 46.
118 AS 09.17.010(c).
119 AS 09.17.010(b).
120 AS 09.17.010(c).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
