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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. GEICO (1/25/2013) sp-6746
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CAROLINE WILLIAMS, personally )
and as Personal Representative of )
the ESTATE OF ROBERT ) Supreme Court No. S-14089
SHAPSNIKOFF and as assignee of )
ALYA LANDT and INNOCENT ) Superior Court No. 3AN-04-09429 CI
DUSHKIN; et al., )
) O P I N I O N
Appellants, )
) No. 6746 - January 25, 2013
v. )
)
GEICO CASUALTY CO., d/b/a )
GEICO, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason, Judge.
Appearances: Phillip Paul Weidner and Michael Cohn,
Weidner & Associates, APC, Anchorage, for Appellants.
Rebecca J. Hozubin and Jim C. Wilkson, Wilkerson Hozubin,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
CARPENETI, Chief Justice.
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I. INTRODUCTION
This appeal arises from a declaratory action filed by an insurer to clarify the
terms of its duties under a policy. The underlying tort action resulted from a car accident
in which the insured, while driving a rental truck, hit a person who was lying in the
middle of the road. Both the driver and the person struck were intoxicated, as was a
passenger in the truck. The person who was struck died from his injuries. The victim's
estate and the survivors sued. The insurance company several times offered to settle the
case against both the driver and the passenger (who may have faced liability for his
actions after the accident) for policy limits. These offers were rejected. The estate
offered to settle for the release of the named insured only, but the insurer rejected that
offer. The occupants of the vehicle later settled with the estate, confessing judgment for
about $4 million each.
After being unable to reach settlement, the insurer filed a declaratory action
to clarify its duties under the policy and resolve issues of who was driving the vehicle,
the number of occurrences, and possible breaches of the insurance contract by the
insureds. The insureds assigned their claims against the insurer to the estate, which
answered and counterclaimed for breach of contract and bad faith. The insurer prevailed
on nearly all issues. The personal representative of the estate, for herself and as assignee
of the insureds, appeals. Because we find that the insurer did not breach its duties to the
insured, we affirm the decision of the superior court.
II. FACTS AND PROCEEDINGS
A. Facts
1. Underlying facts
On the morning of September 3, 2000, Alya Landt and Innocent Dushkin
were in a rented truck. Both were heavily intoxicated, Landt with a blood alcohol
content in the range of .16 to .27 percent and Dushkin with a .17 percent blood alcohol
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content. Landt was driving the truck.1 Robert Shapsnikoff was also intoxicated and was
lying in the middle of the road. The vehicle ran him over.
After running Shapsnikoff over, Landt stopped the truck and Dushkin got
out to check on him. When Dushkin got to his side, Shapsnikoff was gasping for breath
but did not say anything or respond to Dushkin. According to Landt, Shapsnikoff was
making noises "like no normal person makes." According to Dushkin, Landt said she
"didn't need to be in any trouble with the cops." Landt and Dushkin then picked
Shapsnikoff up and put him in the truck. Dushkin stated they did that because they
thought he was still breathing. Dushkin attempted to find a heartbeat but could not.
They drove Shapsnikoff to his apartment complex (the parties appear to have known
each other socially) and then took him out of the truck and applied CPR. Finally, Landt
called for assistance.
Shapsnikoff suffered mortal injuries as a result of the accident. The autopsy
revealed "numerous blunt force crushing injuries consistent with . . . having been run
over by a motor vehicle." Shapsnikoff's aorta was nearly completely separated from the
aortic ligament, which would have caused massive internal bleeding. The medical
examiner believed that, given the injuries, Shapsnikoff lived "seconds to minutes (more
likely seconds to two to three minutes)" after the blow. The medical examiner also
believed that loading him into the truck did not increase his injuries or hasten his death.
Landt was criminally charged for her role in the incident. The medical
examiner testified to the grand jury that Shapsnikoff was unlikely to have lived more
than a few minutes after being struck. He also testified that at or near the time of death
a person may breathe in a unusual manner, called agonal breathing, either very deep or
1 Although the pleadings in the underlying tort case indicated that it was
unclear who was driving the vehicle, both parties (and the superior court) now agree that
Landt was driving.
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very shallow, and that it would sound unusual to a lay person. In the criminal trial he
testified that Shapsnikoff could have survived at most ten minutes. Landt was ultimately
convicted for tampering with evidence and driving while intoxicated but not for
criminally negligent homicide or manslaughter.
In August 2002, the appellants, Shapsnikoff's estate and survivors
(Shapsnikoffs), filed a civil suit against Landt, Dushkin, and other entities and
individuals. Landt and Dushkin ultimately confessed judgment for $4,678,177.42 each.
2. Insurance policy
Landt had a vehicle insurance policy with GEICO Casualty Co. The policy
had a liability limit of $50,000 per person and $100,000 per occurrence (plus add-ons
consisting of costs, attorney's fees, and interest). The policy also had an
uninsured/underinsured coverage limit of $50,000 per person and $100,000 per
occurrence. The insurance covered the following for a non-owned vehicle:
1. [Insured] and [Insured's] relatives . . . .
2. A person or organization, not owning or hiring the
auto, regarding his . . . liability because of acts or
omissions of an insured under 1 above.
The limits of liability stated in the declarations are our
maximum obligations regardless of the number of insureds
involved in the occurrence.
GEICO defended Landt as the named insured. GEICO also agreed to
provide Dushkin with a defense under a reservation of rights in the event that Dushkin
was not an insured under the policy or that intentional acts led to the deceased's injury.
The agreement to defend was based on the allegations that either Dushkin or Landt had
been driving.
After Landt and Dushkin confessed judgment, they assigned their rights
against GEICO to the Shapsnikoffs.
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3. Settlement offers
Throughout the pre-lawsuit period and the underlying tort proceedings,
GEICO made several attempts to settle the case for the $50,000 policy limit. GEICO
first learned of the incident from Landt's attorney on September 8, 2000. At that time,
GEICO was informed that Landt had found Shapsnikoff and driven him home. After
learning that Landt had been criminally charged, GEICO claims representative Michael
Lina sought and was granted authority to resolve any claim Shapsnikoff's estate may
have had against Landt. He was authorized to offer $50,000 plus add-ons, the maximum
amount per claimant per occurrence. GEICO contacted Phillip Paul Weidner's office,
the law firm representing the Shapsnikoffs, several times before the complaint was filed,
in an attempt to settle the claim.
After the underlying complaint was filed, on May 7, 2003, the court was
advised that GEICO was willing to settle for the policy limit of $50,000. In January
2004, Daniel Quinn, Dushkin's attorney, notified the Shapsnikoffs that he was
authorized by GEICO to settle the claims against Dushkin and Landt for a single $50,000
per person limit plus add-ons. In March 2004, David Carter, Landt's attorney, reiterated
the offer to settle for $50,000 plus add-ons in return for a release of claims against Landt
and Dushkin. On July 1, 2004, there was an unsuccessful mediation, in which the
Shapsnikoffs demanded $100,000 (in the form of two $50,000 policy limits) plus add-
ons plus $500,000 from both Landt and Dushkin.
After the failed mediation, Weidner sent identical but independent
settlement demands to Dushkin and Landt (via GEICO) for the "true full policy limit
proceeds" and 95% of the uninsured/underinsured benefits ($1 million). GEICO rejected
any settlement demand that exceeded the $50,000 plus add-ons offer it had previously
made. GEICO also filed a declaratory action (from which this appeal arises) to resolve
its rights and duties under the policy. In October 2004, GEICO again offered to settle
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for $50,000 plus add-ons, while reserving some of the claims for resolution in the
declaratory action. This offer was not accepted.
On December 13, 2004, Weidner sent independent and identical settlement
demands to Landt and Dushkin expressing a willingness to settle for the full policy
limits, $50,000 plus applicable add-ons to be determined by the declaratory judgment.
GEICO requested clarification of the total amount required to settle all claims against
Landt and Dushkin. GEICO also reiterated its standing offer of $50,000 plus add-ons.
Weidner once again sent independent but identical letters to Dushkin and Landt, this time
stating that GEICO's response was a bad faith rejection of a settlement offer as to both
Dushkin and Landt. In the letters he renewed the offer from December 13 or
alternatively offered to accept $112,500 total for the release of all claims against Dushkin
and Landt; he also requested an acknowledgment from GEICO that payment would
"trigger any UIM [Uninsured motorist] coverage." GEICO renewed its offer of $50,000
plus add-ons in exchange for the release of Landt and Dushkin.
On December 24, 2004, Weidner sent letters to Sam Fortier and Marc June
(Landt's and Dushkin's personal attorneys) with the proposal that Landt and Dushkin
confess judgment of around $10 million each. On December 31, 2004, Weidner sent a
similar letter to David Carter and Daniel Quinn. In response GEICO amended its
complaint in the declaratory action to request a ruling that if Landt and Dushkin
confessed judgment it would constitute a breach of the insurance contract and there
would be no insurance coverage.
In October 2006, Weidner, Carter, and Quinn filed a stipulation for entry
of judgment. Landt and Dushkin each confessed judgment for $4,678,177.42.
B. Proceedings
GEICO filed a declaratory action in July 2004, seeking a declaration of its
rights and duties. GEICO also filed several amended complaints corresponding to the
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Shapsnikoffs' evolving theories in the underlying case. GEICO sought the following
rulings: (1) if Landt or Dushkin entered into a confession of judgment they would be in
breach of the insurance contract and there would be no coverage; (2) entry of an order
as to who was driving the car at the time of the accident; (3) if Dushkin was driving the
car there was no available coverage; (4) there was no second liability limit available to
settle the claims (i.e., no second occurrence); (5) there was no underinsured coverage
available; (6) the amount owed, if any; and (7) attorney's fees. The Shapsnikoffs filed
an answer and a counterclaim alleging that GEICO had breached the insurance contract
and was acting in bad faith both by refusing to offer a settlement at policy limits to both
Landt and Dushkin and by filing the declaratory action.
The superior court resolved most of GEICO's requests in its favor on
summary judgment, "leaving the question of whether there was a second occurrence that
could have been covered under the terms of the policy" unresolved. After trial, the
superior court concluded that there was not a second occurrence, that GEICO had a
reasonable basis to believe that there was not a second occurrence and so did not act in
bad faith in seeking the declaratory action, and that GEICO did not breach the insurance
contract when it failed to offer a second $50,000 policy limit settlement for pain and
suffering incurred by Shapsnikoff when being loaded into the truck. Therefore, it found
that Landt and Dushkin were in unexcused breach of the insurance contract when they
confessed judgment. GEICO, as the prevailing party, was awarded attorney's fees.
The Shapsnikoffs appeal, arguing that the superior court erroneously (1)
concluded that GEICO did not breach its duty to Landt and Dushkin; (2) concluded that
there was no second occurrence; (3) concluded that there was not a substantial likelihood
of a verdict in excess of policy limits; (4) found Landt and Dushkin to be in material
breach when they confessed to judgment; (5) adopted GEICO's proposed findings of fact
and conclusions of law; and (6) awarded attorney's fees to GEICO.
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III. STANDARD OF REVIEW
We review a trial court's factual findings for clear error.2 We reverse only
when left with a "definite and firm conviction . . . that a mistake has been made."3 We
apply our independent judgment to questions of law and interpretation of contracts.4 We
review the decision to award attorney's fees for abuse of discretion and overturn it only
where the award is manifestly unreasonable.5
IV. DISCUSSION
A. The Superior Court Correctly Concluded That GEICO Did Not
Breach Its Duties When It Offered To Settle For One Policy Limit
($50,000) And The Release Of Both Landt And Dushkin.
The Shapsnikoffs make several arguments relating to GEICO's failure to
offer or accept the appropriate settlement. They suggest that GEICO had a duty
alternatively to offer a $50,000 plus add-on settlement for the release of Landt only or
to offer two $50,000 settlements for the release of Landt and Dushkin, and that failure
to do so was a breach of the insurance contract and was in bad faith.
It is well settled that an insurer has a duty to offer a full policy settlement
where there is a substantial likelihood of an adverse verdict in excess of policy limits.6
2 Stewart v. Elliott, 239 P.3d 1236, 1239-40 (Alaska 2010).
3 In re Protective Proceedings of W.A. , 193 P.3d 743, 748 (Alaska 2008)
(quoting Casey v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004)).
4 Chambers v. Scofield, 247 P.3d 982, 987 (Alaska 2011); State v. Jeffery,
170 P.3d 226, 229 (Alaska 2007).
5 DeNardo v. Cutler , 167 P.3d 674, 677-78 (Alaska 2007) (quoting Marron
v. Stromstad, 123 P.3d 992, 998 (Alaska 2005)).
6 Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin , 828 P.2d 745, 768
(Alaska 1992), superseded by statute on other grounds as recognized in Petrolane Inc.
(continued...)
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Neither party disputes that such a likelihood existed here. Rather, the issue is how the
amount and terms of such a settlement relate to GEICO's duty to defend Landt and
Dushkin.
First, the Shapsnikoffs argue that GEICO had no duty to defend Dushkin
because he was not an insured as to the first occurrence, that is, the initial impact.
Second, they argue that even if Dushkin were an insured under the policy, GEICO still
ought to have offered or accepted a settlement that would release Landt even if Dushkin
was still subject to liability. GEICO responds that it had a duty to defend Dushkin based
on the legal theories pled by the Shapsnikoffs. GEICO maintains that once it agreed to
defend Dushkin, even if Dushkin were defended under a reservation of rights, it had a
duty to fully protect Dushkin and could not settle while releasing only Landt.
The Shapsnikoffs' first argument is not persuasive. It is clear from their
pleadings and over the course of the litigation that their legal theory was that either
Dushkin or Landt was driving or that the two acted in concert. Generally, an insurer's
duty is determined by the policy, which is interpreted according to the parties' reasonable
expectations in light of the language of the policy as a whole, as well as extrinsic
evidence and applicable case law.7 An insurer's duty to defend exists where " 'vagaries
of law and fact' are sufficient to create the potential that an insured will incur covered
liability."8 "The potential for coverage may be shown either on the face of the complaint
6 (...continued)
v. Robles , 154 P.3d 1014, 1019-20 (Alaska 2007); Schultz v. Travelers Indem. Co., 754
P.2d 265, 266-67 (Alaska 1988).
7 West v. Umialik Ins. Co., 8 P.3d 1135, 1138 (Alaska 2000).
8 Makarka ex rel. Makarka v. Great Am. Ins. Co. , 14 P.3d 964, 969 (Alaska
2000).
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or through facts the insurer knew or could have reasonably ascertained that would bring
an otherwise uncovered complaint within the policy's coverage."9
The Shapsnikoffs presented a theory under which Dushkin may have been
an insured - either as a driver or by acting in concert with Landt.10 Given that, GEICO
acted properly in agreeing to defend Dushkin under a reservation of rights.11 Later, after
settlement was not forthcoming and the legal theories became more clear, including
GEICO's duty to defend Dushkin, GEICO properly decided to file a declaratory action
to resolve the issue of coverage.12
Once GEICO agreed to defend Dushkin and Landt, it had a legal duty of
good faith and fair dealing toward both.13 GEICO made proper settlement offers seeking
the release of both Landt and Dushkin.
The Shapsnikoffs' second argument - that even if Dushkin were an
insured under the policy, GEICO had a duty to offer or accept a settlement releasing
9 Id.
10 The Shapsnikoffs also argue that GEICO could not have believed that
Dushkin was insured for the first occurrence because a summary judgment stated that
Dushkin would not be covered regardless of whether Dushkin was driving. However,
this judgment was in the declaratory action where GEICO's duty to defend Dushkin and
Landt was the exact question put to the court. The court there decided that Dushkin was
not covered as to the first occurrence. This has no bearing on GEICO's earlier actions
in defending Dushkin. Further, there was still a question of whether Dushkin was liable
for the alleged second occurrence.
11 See CHI of Alaska, Inc. v. Emp'rs Reinsurance Corp., 844 P.2d 1113, 1115-
16 (Alaska 1993) ("The insurer can preserve its coverage defense and fulfill its duty to
defend by defending under a reservation of rights to later disclaim coverage if liability
is attributable to the excluded theory.").
12 See Bohna, 828 P.2d at 768 n.58.
13 See Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 142 (Alaska 2004).
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Landt even if doing so left Dushkin liable - concerns an unsettled area of law. We have
not directly addressed how an insurer should handle multiple insureds. Other
jurisdictions have utilized two different approaches. The first is that the insurer should
seek to release all insureds, but if it cannot, then it ought to seek to settle on behalf of
one.14 In these cases, the insurer's obligations to other insureds are extinguished by
reaching policy limits, even if the other insureds are exposed to personal liability.15 The
second approach requires an insurer to seek release of all insureds; where a settlement
cannot be reached the insurer must file a declaratory action to determine what coverage
is owed.16
We are persuaded that the latter approach is the better one. An insurer has
a duty to defend its insureds; seeking a settlement to the benefit of one insured while
leaving others open to liability could cause unfairness. Further, the latter approach
avoids a potential bad faith claim by an insured who was unprotected and efficiently
adjudicates the rights and duties of the insurer and the insured.
Under this rule, GEICO did not have a duty to settle for Landt's release
while leaving Dushkin open to liability and therefore it was not in breach of contract nor
did it commit the tort of bad faith. We affirm the superior court's holding that GEICO
did not breach its duties when it offered to settle for only one policy limit for the release
of both Landt and Dushkin.
14 See, e.g., Travelers Indem. Co. v. Citgo Petroleum Corp., 166 F.3d 761,
764-69 (5th Cir. 1999).
15 Id.
16 See, e.g., Lehto v. Allstate Ins. Co. , 36 Cal. Rptr. 2d 814, 820-23 (Cal. App.
1994) ("[A]n insurer can breach its duty to its insureds by disbursing the policy proceeds
to [a] claimant without first obtaining a release of the insureds.").
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B. The Superior Court Did Not Err When It Found That There Was Not
A Second Occurrence.
The Shapsnikoffs argue that when Shapsnikoff was loaded into the truck
and moved from the scene there was a second occurrence that triggered GEICO's duty
to offer a second $50,000 policy limit settlement.17 After trial, the superior court found
that Shapsnikoff was mortally wounded when run over by the truck, that he was likely
dead within seconds, and that he was not loaded into the truck within seconds. The
superior court further found that even if Shapsnikoff was alive at the time he was loaded
into the truck, he was not conscious and therefore was not harmed by the actions.
Accordingly, it concluded that there was no second occurrence.
The superior court's final findings of facts and conclusions of law resolved
the genuine dispute of material fact that precluded summary judgment. The findings
were not clearly erroneous. They were based on ample evidence presented at trial, such
as the fact that Shapsnikoff was heavily intoxicated when he was hit and was passed out
in the middle of the road, testimony regarding the limited amount of time he would have
lived, and testimony that he did not respond after Dushkin arrived at his side.
Because the superior court properly concluded that there was no second
occurrence, we affirm the superior court.
17 The Shapsnikoffs argue that the superior court's findings were erroneous
because they were in conflict with the earlier summary judgment ruling. This argument
is without merit. Simply because there exists a genuine dispute of material fact does not
guarantee the prevailing party on summary judgment will ultimately prove the disputed
fact. See Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593, 597 (Alaska 2004)
(citing Alaska Rent-A-Car, Inc. v. Ford Motor Co. , 526 P.2d 1136, 1139 (Alaska 1974))
("A party opposing summary judgment need not prove that it will prevail at trial, but
only that there is a triable issue of fact.").
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C. The Superior Court Did Not Err In Finding That There Was Not A
Substantial Likelihood Of An Excess Verdict For The Alleged Second
Occurrence.
The Shapsnikoffs argue that GEICO was under a duty to offer a policy
limits settlement as to the second occurrence.18 There is no dispute that where "a
plaintiff makes a policy limits demand, the covenant of good faith and fair dealing places
a duty on an insurer to tender maximum policy limits to settle a plaintiff's demand when
there is a substantial likelihood of an excess verdict against the insured."19 However, the
parties dispute the legal standard of substantial likelihood. The Shapsnikoffs appear to
argue that a substantial likelihood is a very low standard, "a real or fair likelihood . . .
and not a frivolous or insubstantial likelihood." GEICO argues that the standard equates
to probable success on the merits. The superior court ruled that it meant more than a
preponderance of the evidence but less than a certainty and found that there was not a
substantial likelihood of an excess verdict.
In Jackson v. American Equity Insurance Co.20 we explained that the duty
to offer a full policy limits settlement where there is a substantial likelihood of an excess
verdict is:
grounded in the insurer's legal duty to act in good faith [and]
. . . .[w]hen there is a great risk of a recovery beyond the
policy limits so that the most reasonable manner of disposing
of the claim is a settlement which can be made within those
18 The Shapsnikoffs argue that even the substantial likelihood of a verdict of
one dollar would trigger GEICO's duty to offer a policy limits settlement. This is
incorrect. An insurer's duty to offer a policy limits settlement occurs when there is a
substantial likelihood of a verdict in excess of policy limits. Jackson v. Am. Equity Ins.
Co., 90 P.3d 136, 142 (Alaska 2004).
19 Id.
20 90 P.3d at 142.
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limits, a consideration in good faith of the insured's interest
requires the insurer to settle the claim.[21]
In this case, there was not a great risk that Dushkin and Landt would be
liable for a verdict in excess of policy limits with respect to the alleged second
occurrence, because it was unlikely that a court would find a second occurrence at all.
There was ample evidence to support the conclusion that there was no second
occurrence, including evidence that Shapsnikoff was heavily intoxicated at the time of
impact and that he died within seconds of being struck. The possibility that a fact finder
could find liability in excess of the policy limits does not establish that there was a great
likelihood not only of the claim's success but also of an award in excess of the policy
limits. On the facts of this case, it was reasonable for GEICO to offer the single policy
limits settlement and to reject any offer not within the single policy limits settlement.
D. The Superior Court Properly Found Landt And Dushkin In Material
Breach When They Confessed Judgment.
The next issue raised is whether Landt and Dushkin breached the insurance
contract by confessing judgment. It is clear that confessing judgment can be a breach of
the insurance contract.22 However, the Shapsnikoffs claim that the breach was excused
because GEICO acted in bad faith.
21 Id. (emphasis added) (footnotes and internal quotation marks omitted).
22 The GEICO policy requires that "the insured will cooperate and assist us"
in the investigation, litigation, and settlement of a suit.
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This issue depends on GEICO's duty to settle.23 If GEICO breached the
insurance contract by failing to settle when there was a duty to do so, then Landt and
Dushkin were free to confess judgment due to GEICO's material breach. 24 An insurer
does not breach its duty to settle when it rejects offers that are based on unreasonable
policy interpretations.25 GEICO refused to settle for more than the policy limits it
deemed were required under the contract of insurance. In this case, that meant settling
for $50,000 plus add-ons for the release of both insureds. GEICO did not have a duty
to accept any other settlement. If an insurer is unclear as to its policy requirements it
should file a declaratory action to resolve the issue - as GEICO did.26 Because GEICO
23 Every insurance contract contains within it the implied
covenant of good faith and fair dealing, which requires the
contracting parties to avoid behavior that will injure the right
of the other to receive the benefits of the agreement. As part
of its duty to act in good faith, an insurer has a duty to settle
- that is, an obligation[] under a contract of liability
insurance . . . to settle a claim that has been brought against
the insured when it is appropriate to do so.
Whitney v. State Farm Mut. Auto. Ins. Co., 258 P.3d 113, 116-17 (Alaska 2011)
(footnotes and internal quotation marks omitted).
24 "Ordinarily, an insured's breach of [a] cooperation clause relieves a
prejudiced insurer of liability under the policy." Grace v. Ins. Co. of N. Am., 944 P.2d
460, 464 (Alaska 1997) (citing Ariz. Prop. & Cas. Ins. Guar. v. Helme , 735 P.2d 451,
458-59 (Ariz. 1987)). Where an insurer has breached its obligations, however, the
insured is entitled to take reasonable steps to protect his or her interests. See id. at 464-
65.
25 See Whitney, 258 P.3d at 117-18 (holding that an insurer did not breach its
duty to settle when it refused claimant's offer which was based on mistaken belief that
multiple policies meant that coverage could be stacked).
26 See Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745,
(continued...)
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acted properly throughout this case, Landt and Dushkin were in material breach when
they confessed judgment. Accordingly, we affirm the superior court. GEICO was not
in breach, but Landt and Dushkin, by confessing judgment, breached the cooperation
clause and thus there is no coverage.
E. The Superior Court Did Not Err In Adopting GEICO's Proposed
Findings Of Fact And Conclusions Of Law.
The Shapsnikoffs argue that the superior court improperly adopted the
finding of facts and conclusions of law that GEICO submitted and that the findings
themselves were erroneous.27 We disagree with both arguments.
The Shapsnikoffs' first argument - that a trial court is precluded from
adopting proposed findings of fact and conclusions of law - is without merit. "A trial
court is . . . entitled to adopt findings and conclusions prepared by counsel, so long as
they reflect the court's independent view of the weight of the evidence."28 The superior
court explained its reasoning in adopting GEICO's proposed order:
26 (...continued)
768 n.58 (Alaska 1992), superseded by statute on other grounds as recognized in
Petrolane Inc. v. Robles , 154 P.3d 1014 (Alaska 2007) (noting that "[i]f [the insurer] was
genuinely confused as to the [obligations], it should have filed a declaratory action rather
than exposing [the insured] to personal liability"). The Shapsnikoffs suggest that GEICO
improperly filed the declaratory action. This is without merit. GEICO's actions were
not in bad faith.
27 The Shapsnikoffs also argue that adoption of the proposed findings of fact
is a violation of the U.S. and Alaska Constitutions. This argument is wholly
undeveloped and is therefore waived for inadequate briefing. See Adamson v. Univ. of
Alaska , 819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here a point is given only cursory
statement in the argument portion of a brief, the point will not be considered on
appeal.").
28 Harris v. Ahtna, Inc. , 193 P.3d 300, 306 (Alaska 2008) (quoting Indus.
Indem. Co. v. Wick , 680 P.2d 1100, 1108 (Alaska 1984)).
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It will be evident that many of the Court's findings and
conclusions are derived from the proposed findings and
conclusions submitted by the plaintiff. This is because the
Court has determined, after an independent consideration of
the evidence and the law, that many of the proposed findings
and conclusions of law submitted by the plaintiff are accurate
and supported by a preponderance of the evidence.
The superior court did not abdicate its duty to independently weigh the evidence by
adopting the order. The Shapsnikoffs may be displeased with the findings, but all were
properly made. We affirm the superior court's adoption of GEICO's proposed findings
of fact.
The Shapsnikoffs' second argument - that the facts adopted by the
superior court are erroneous - is not persuasive. Upon review of the record, we
conclude that the superior court's findings, far from being clearly erroneous, were amply
supported by the evidence. The main factual finding that the Shapsnikoffs dispute is
whether there was a second occurrence. The superior court found that there was not,
based on evidence that Shapsnikoff was heavily intoxicated and passed out in the middle
of the road when he was hit, testimony regarding the limited amount of time he would
have lived, and testimony that he did not respond after Dushkin arrived at his side.
F. The Superior Court Properly Awarded Attorney's Fees To GEICO.
The superior court awarded GEICO $112,390 in attorney's fees and costs
as the prevailing party. The Shapsnikoffs argue that this was inappropriate for two
reasons. First, they argue it is unfair as a matter of public policy to award attorney's fees
to an insurer that commences an action against its insured. Second, they argue that
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AS 09.17.080(d)29 precludes a joint and several award of attorney's fees.30 GEICO
responds that in this case it is not against public policy because the Shapsnikoffs are not
the insured and they enticed Landt and Dushkin into confessing judgment and assigning
their claims against GEICO.31 It dismisses the Shapsnikoffs' argument regarding joint
and several liability for the attorney's fees as contrary to law.
The superior court's decision to award attorney's fees is reviewed for abuse
of discretion and is overturned only where the award is manifestly unreasonable.32
Although there may be cases in which the award of attorney's fees to an insurance
company that filed a declaratory action against its insured would be unreasonable, this
is not such a case. In this case, the actions of the insureds (or their assignees)
precipitated this protracted and complex litigation. GEICO consistently offered a
settlement at the policy limits as it understood them to be and its offers were consistently
rejected, even though these offers were proper under the policy. In the face of the
plaintiffs' changing legal theories and the uncertainty about coverage, GEICO sought
29 "The court shall enter judgment against each party liable on the basis of
several liability in accordance with that party's percentage of fault."
30 The Shapsnikoffs also argue that they were actually the prevailing party as
to central issues regarding the second occurrence. This argument is without merit.
Although the Shapsnikoffs survived summary judgment on the issue of the second
occurrence, the superior court ultimately found, without error, that there was not a
second occurrence.
31 GEICO's argument that there is no public policy concern because the
Shapsnikoffs were not the insured is without merit. Although the Shapsnikoffs are not
the original insureds, they are the assignees of the original insureds' claims. A claim
against an insurer is assignable. See O.K. Lumber Co. v. Providence Wash. Ins. Co., 759
P.2d 523, 525 (Alaska 1988).
32 DeNardo v. Cutler , 167 P.3d 674, 677-78 (Alaska 2007) (citing Marron v.
Stromstad, 123 P.3d 992, 998 (Alaska 2005)).
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clarification via a declaratory action. The Shapsnikoffs continued to demand two policy
limits and counterclaimed against GEICO, alleging bad faith in an effort to collect from
GEICO an amount in excess of policy limits achieved by negotiating a confession of
judgment for over $8 million. On these facts, it was not an abuse of discretion to award
attorney's fees to GEICO.
The Shapsnikoffs' argument that joint and several liability for attorney's
fees is contrary to law is equally unavailing. Alaska Statute 09.17.080(d) does not apply
to this dispute. That statute provides that "[t]he court shall enter judgment against each
party liable on the basis of several liability in accordance with that party's percentage of
fault." The Shapsnikoffs argue that this statute requires the court to "pro rata" assign
attorney's fees "based on a percentage of the share . . . each [plaintiff] could potentially
recover." Not only is this nonsensical in an action in which there is no fault
apportionment, we have already interpreted this statute on this exact issue:
The statute applies to findings of fault, whereas awards of
attorney's fees and costs pursuant to Civil Rule 82 are not
indicative of or dependent upon findings of fault. Civil Rule
82(e) states, "In a case in which damages are apportioned
among the parties under AS 09.17.080, the fees awarded to
the plaintiff under (b)(1) of this rule must also be apportioned
among the parties according to their respective percentages
of fault." The clear implication is that, in types of litigation
where AS 09.17.080 is not invoked, attorney's fees need not
be apportioned by fault. Here there were no damages
awarded pursuant to 09.17.080, and it follows that the statute
is inapplicable to the award of attorney's fees and costs in
this case.[33]
This was not a case in which AS 09.17.080 applied. The superior court properly
awarded attorney's fees to GEICO as the prevailing party.
33 Hughes v. Foster Wheeler Co. , 932 P.2d 784, 792 (Alaska 1997).
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Because the superior properly exercised its discretion, we affirm the award
of attorney's fees to GEICO.
V. CONCLUSION
We AFFIRM the decision of the superior court in all respects.
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