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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dixon v. Blackwell (3/29/2013) sp-6771
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
DIXIE D. DIXON, )
) Supreme Court No. S-14313
Appellant, )
) Superior Court No. 3AN-07-10604 CI
v. )
) O P I N I O N
JOSHUA PAUL BLACKWELL, )
) No. 6771 – March 29, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: William H. Ingaldson, Ingaldson, Maassen &
Fitzgerald, P.C., Anchorage, for Appellant. Jimmy E. White,
Hughes Gorski Seedorf Odsen & Tervooren, LLC,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices, and Matthews, Senior Justice.*
MATTHEWS, Senior Justice.
WINFREE, Justice, concurring.
I. INTRODUCTION
Dixie Dixon was injured in an automobile accident when a car driven by
Joshua Paul Blackwell ran a red light. She sued and received a verdict that was lower
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
than Blackwell’s Alaska Civil Rule 68 offer of judgment. On appeal she challenges the
adequacy of the verdict and the efficacy of the offer of judgment. We affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Dixon was injured in an accident on February 14, 2006, as a result of being
hit by a car driven by Blackwell. Blackwell admitted liability for the accident. Dixon
received medical treatment for various ailments for several years after the accident. She
ultimately claimed that nearly $200,000 of her medical expenses were related to the
accident.
Dixon had auto insurance through State Farm and had other health
insurance through Premera Blue Cross Blue Shield of Alaska and Alaska Laborer’s
Trust. Dixon’s State Farm policy had medical payments coverage of $100,000, under
which State Farm paid $29,699.24 of her medical expenses. State Farm decided that her
other medical expenses were unrelated to the accident and did not pay them.
Dixon requested arbitration with State Farm, claiming that her other
medical expenses were covered. Dixon and two doctors who performed independent
medical exams on her were deposed in connection with the arbitration. State Farm also
provided automobile liability insurance for Blackwell. State Farm’s medical payments
adjuster on the Dixon policy wrote to State Farm’s liability adjuster on the Blackwell
policy on August 1, 2007, requesting reimbursement of the $29,699.24 paid in medical
expenses that State Farm had determined were related to the accident.
B. Proceedings
Dixon filed a complaint against Blackwell on October 9, 2007, and
withdrew the request for arbitration with State Farm. The same attorney who represented
State Farm in the arbitration represented Blackwell in the superior court.
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In his answer to the complaint, Blackwell asserted that Dixon was not
entitled to seek medical expenses that had been paid by her insurer to the extent that the
insurer had instructed her not to seek recovery of those expenses in the lawsuit. Two
days after filing the answer, November 29, 2007, he served an offer of judgment that
provided:
Defendant Joshua Paul Blackwell, pursuant to Civil Rule 68,
hereby offers to allow entry of judgment in favor of Plaintiff
Dixie D. Dixon in this action for a total sum of TWENTY
EIGHT THOUSAND EIGHT HUNDRED SEVENTY
EIGHT DOLLARS AND EIGHTY-THREE CENTS
($28,878.83), plus Civil Rule 79 costs, pre-judgment interest
as of the date of this offer, and Civil Rule 82(b)(1) attorney
fees. In addition, Defendant will assume responsibility for
the State Farm Medical Payments lien arising from Ms.
Dixon’s post-accident treatment. Plaintiff will assume
responsibility for any and all liens relating to the subject
accident other than the aforementioned State Farm Medical
Payments lien. This offer of judgment will result in the
dismissal of this action with prejudice. This is an offer of
compromise only, and is not to be construed as an admission.
Dixon did not accept the offer.
Trial was held in January of 2011. At trial, the jury heard testimony and
viewed depositions from numerous physicians. Dr. John Duddy testified that the knee
injuries Dixon had sustained in the accident had cleared up as of an MRI taken on
July 12, 2006. Dixon presented evidence of medical expenses totaling $196,208.72,
including the medical expenses that had been paid by State Farm under her Medical
Payments coverage.
In his closing statement, Blackwell’s attorney stated:
Ms. Dixon had the bruise on her knee and Ms. Dixon had the
cervical issue, the minor cervical strain, and the aggravation
of her interstitial cystitis and [Blackwell]’s here to tell you
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my fault, okay. Do what’s right with regard to the injuries
she sustained in the accident, but that’s all. Past medical
expenses. Here’s the chart that Mr. Ingaldson showed you.
There’s the first page. It shows that she’s got almost
$200,000 in medical expenses.
He then listed a series of medical expenses that occurred between the accident and
July 12, 2006, the point when, Dr. Duddy testified, Dixon’s MRI showed no lingering
effects from the accident. Blackwell’s attorney compared the total of these expenses,
$17,955, to the amount Dixon was requesting, nearly $200,000. Dixon claims that in this
portion of the closing statement, Blackwell’s attorney conceded that the $17,955 in
expenses were related to the accident. Blackwell claims that this figure was quoted to
illustrate the large gap between what Dixon claimed and the maximum of what could
have been related to the accident.
The jury returned a verdict for Dixon, awarding $12,710 in past medical
expenses and $4,000 in past non-economic loss. Blackwell moved for the entry of a final
judgment and asked for attorney’s fees pursuant to Civil Rule 68. Dixon opposed,
claiming that the offer was indefinite and conditional, that she had beaten the offer, and
that the offer was unreasonable because it was made before the exchange of initial
disclosures. The superior court granted the motion and entered an order awarding
Blackwell $79,459.87 in attorney’s fees.
Dixon appeals, arguing: (1) that the jury’s verdict was inadequate; (2) that
the November 29, 2007 offer was procedurally defective, invalid, and unenforceable; and
(3) that she beat the offer.
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III. STANDARD OF REVIEW
“An offer of judgment’s compliance with Rule 68 is a question of law
which we review independently.”1 “Calculation of the value of a verdict to determine
if it exceeded an offer of judgment presents questions of law, which we review de
novo.”2 “The adequacy of evidence supporting [a] jury’s award is a mixed question of
law and fact.”3 In reviewing a jury’s verdict, this court reviews the evidence in the light
most favorable to the prevailing party and evaluates de novo the legal question of
whether the evidence is sufficient to support the jury’s award.4
IV. DISCUSSION
A. The Jury’s Verdict Was Adequate.
“The question of whether damages are inadequate . . . is in the first instance
committed to the discretion of the trial judge and should be raised on a motion for a new
trial.”5 We reverse the denial of a motion for new trial on verdict inadequacy grounds
only when there is no reasonable evidentiary basis for the jury’s award.6 Where a
1 Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004).
2 Power Constructors, Inc. v. Taylor & Hintze , 960 P.2d 20, 34 (Alaska
1998).
3 Central Bering Sea Fishermen’s Ass’n v. Anderson, 54 P.3d 271, 277
(Alaska 2002).
4 Id .
5 Heacock v. Town , 419 P.2d 622, 623 (Alaska 1966) (citations omitted).
6 Hutchins v. Schwartz , 724 P.2d 1194, 1199 (Alaska 1986):
If there is an evidentiary basis for the jury’s decision, then the
denial of a motion for a new trial must be affirmed. If the
evidence is so slight and unconvincing as to make the verdict
(continued...)
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challenge to the amount of damages has not been raised in the trial court, “we may refuse
to review the issue or we may, in our discretion, review the award.”7 If we choose to
review, we examine whether “damages awarded appellant were so grossly inadequate
as to amount to a miscarriage of justice.”8 Dixon did not challenge the adequacy of the
jury’s verdict or move for a new trial in the superior court.
Dixon argues that Blackwell conceded in his closing argument that at least
$17,955 in medical expenses were related to the accident. She contends that this aspect
of his closing argument was a binding judicial admission. Because the jury only awarded
$12,710 in medical expenses, Dixon argues that the verdict was necessarily inadequate
and that a new trial is required.
In Hayes v. Xerox Corporation , we stated: “A judicial admission, to be
binding, must be one of fact and not a conclusion of law or an expression of opinion.”9
It must be “clear, deliberate, and unequivocal.”10 In Xerox , in the closing argument,
Xerox’s counsel stated: “I think he’s been significantly injured. I think he has injury
now. I think it may need treatment. We don’t know for sure.”11 Xerox’s counsel
6(...continued)
unreasonable and unjust, then we must reverse the denial of
the motion for new trial.
7 Murray v. Feight , 741 P.2d 1148, 1160 (Alaska 1987) (citing Heacock , 724
P.2d at 624).
8 Heacock , 724 P.2d at 624.
9 718 P.2d 929, 931 (Alaska 1986).
10 Id. at 933.
11 Id . at 932.
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conceded that lost wages were “reasonably certain to be incurred.”12 Counsel then
estimated how much he felt the jury could award on each claim, and came out to a total
of $69,000 to $70,000.13 This court held that because Xerox’s counsel couched his
language as estimates and opinions and included the phrase “I think” before his
statements, they were not clear, deliberate, and unequivocal statements of fact and were
not judicial admissions.14
In this case, Blackwell’s counsel’s statement was, in context, not a “clear,
deliberate, and unequivocal” statement that could be a judicial admission.15 In his
closing, Blackwell’s attorney argued that one of Dixon’s doctors noted that any objective
evidence of injury was gone six months after the accident. He then added up all of the
expenses that occurred within that six-month window, noting that some of them were
probably not related to the accident. Finally, Blackwell’s attorney compared the total of
those six months of expenses, $17,955, to the nearly $200,000 that Dixon was asking for.
Taken in context, Blackwell’s closing was not a judicial admission that Dixon had
incurred $17,955 of medical expenses related to the accident.
Because there was no judicial admission that Dixon’s medical expenses
caused by the accident exceeded the amount awarded, Dixon has not established that the
award was so inadequate as to amount to a miscarriage of justice.
12 Id .
13 Id .
14 Id. at 932-33.
15 See id . at 933.
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B. The Offer Was Valid
1. The offer was not premature.
Dixon argues that the November 29, 2007 offer was procedurally defective
because it was served only two days after an answer to the complaint was filed and
before either side had a chance for discovery. She interprets Rule 68’s reference to an
offer made “any time more than 10 days before the trial” as establishing only the last,
and not the earliest, point at which an offer may be made. She argues that the language
of Rule 68, with its reference to “costs then accrued” at the time of the offer, implies that
the defendant will have accrued some costs by the time a valid offer can be made, which
will not be the case at the time the answer is filed. Dixon also argues that an offer served
shortly after the answer and before initial disclosures does not serve the intent of Rule
68, which is to encourage reasonable settlement practices. She claims that the purpose
of the offer was merely strategic; it was designed to shift the burden of the litigation costs
to Dixon.
Rule 68(a) states that an offer may be made “[a]t any time more than 10
days before the trial begins.”16 In Cook Schuhmann & Groseclose, Inc. v. Brown & Root,
Inc. , we addressed the issue of whether there is a limit on how early a Rule 68 offer may
be made.17 Cook argued that a Rule 68 offer was made prematurely because it was made
before Rule 26 disclosures had been exchanged.18 We held that a party can make an
offer “at any time” more than 10 days before the trial begins.19
In Cook we evaluated the following legislative history of Rule 68:
16 Alaska R. Civ. P. 68(a).
17 116 P.3d 592, 597-99 (Alaska 2005).
18 Id. at 598.
19 Id .
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[W]hat we’re saying is that if this offer is made within a short
period of time, from the ability that you would have after a
case is filed to get discovery, so you kind of know where
you’re at, if a short period of time after that the offer is made,
60 days after that, and you don’t accept it, and when you
finally go to trial, the offer is within 5 percent of — less than
what you would have settled for, you’ve got to pay all
reasonable actual attorney’s fees and costs, from the time the
offer was made . . . .[20]
We held that while this history indicates that offers were allowable after Civil Rule 26
disclosures, it did not indicate that offers were not allowable before Civil Rule 26
disclosures.21
We have held that some Rule 68 offers are not valid, based on their timing
and amount, because they do not serve the intent of Rule 68. In Anderson v. Alyeska
Pipeline Service Co. , we held that a ten-dollar offer made at the outset of litigation was
not valid under Rule 68 because it had no prospect of acceptance or of furthering
settlement negotiations, but was simply an attempt to shift the costs of litigation.22 In
Beal v. McGuire , one-dollar offers were similarly held to be invalid and merely efforts
to benefit from the enhanced fees provision of Rule 68.23 In both cases we noted that the
invalidated offers did not advance the legitimate purposes of Rule 68 and thus could not
serve as a basis for an award of enhanced fees.24
20 Id . at 599 (quoting H. Jud. Comm. notes, 20th Leg., 1st Sess (Feb. 21,
1997)).
21 Id .
22 234 P.3d 1282, 1289-90 (Alaska 2010).
23 216 P.3d 1154, 1178 (Alaska 2009).
24 Anderson , 234 P.3d at 1290; Beal , 216 P.3d at 1178 (“Even though a
(continued...)
-9- 6771
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The language of Rule 68 does not indicate any intent to disallow offers
made before initial disclosures. We see no reason to overturn Cook. Further,
Blackwell’s offer was for $28,878.83, and the jury ultimately awarded only $16,710.
Unlike in Anderson and Beal , it cannot be said that the offer, viewed objectively, had no
prospect of acceptance or of furthering settlement negotiations or that it was merely a
tactical effort to shift fees. Further, even though the offer was made only a few days after
Blackwell filed his answer, State Farm, which was directing Blackwell’s defense, and
Dixon had been litigating the critical causation issue for some months in arbitration
proceedings. In the arbitration, as previously noted, Dixon and two doctors had been
deposed and much documentary information had been exchanged. Therefore the timing
of the offer does not raise suspicions concerning the legitimacy of its purpose.
2. Blackwell’s offer allowed for entry of judgment and was not
contingent.
Dixon argues that because Blackwell’s offer would have resulted in the
dismissal of her case with prejudice, the offer was not a valid Rule 68 offer.
Rule 68 states that “the party defending against a claim may serve upon the
adverse party an offer to allow judgment to be entered in complete satisfaction of the
claim for the money or property or to the effect specified in the offer.”25 We have held
that valid Rule 68 offers must allow for judgment to be entered.26 In Sayer v. Bashaw,
a physician had offered a money settlement that did not allow for judgment to be entered
24(...continued)
purpose of Rule 68 is to encourage settlement and avoid protracted litigation, offers of
judgment made without any chance or expectation of eliciting acceptance or negotiation
do not accomplish the purposes behind the rule.”).
25 Alaska R. Civ. P. 68(a).
26 Sayer v. Bashaw, 214 P.3d 363, 366 (Alaska 2009).
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against him.27 Had judgment been entered, the physician would have faced higher
malpractice insurance rates and feared damage to his reputation.28 We noted that
California courts had interpreted a similar rule as not requiring entry of judgment, but we
rejected this interpretation.29 Instead, we held that to be valid a Rule 68 offer must allow
for judgment to be entered.30
We also held an offer invalid under Rule 68 in ASRC Energy Services
Power and Communications, LLC v. Golden Valley Electric Association, Inc.31 In that
case “[Golden Valley Electric Association] made an offer ‘to allow entry of Judgment
in favor of [ASRC] for Seven Hundred and Fifty Thousand Dollars ($750,000.00) . . .
contingent on the [consolidated lawsuits] being dismissed with prejudice.’ ”32 We noted
that “[i]n its brief [Golden Valley Electric Association] described its offer as an offer to
pay [ASRC] in return for a dismissal of the litigation with prejudice.”33 We also
described the superior court’s characterization of the offer as “an offer to pay, not an
offer of judgment.”34
The November 29, 2007 offer stated, in relevant part: “Defendant Joshua
Paul Blackwell, pursuant to Civil Rule 68, hereby offers to allow entry of judgment in
27 Id . at 364-66.
28 Id . at 365.
29 Id . at 365 n.13, 366.
30 Id. at 366.
31 267 P.3d 1151, 1168-69 (Alaska 2011).
32 Id. at 1168.
33 Id.
34 Id .
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favor of Plaintiff Dixie D. Dixon in this action for a total sum of [$28,878.83] . . . . This
offer of judgment will result in the dismissal of this action with prejudice.” This offer
explicitly called for the entry of judgment. Unlike the offer in ASRC , the offer was not
contingent on the dismissal of the action with prejudice and was not construed by the
trial court or the offeror as a mere offer to pay in return for dismissal of the suit with
prejudice. We read the statement “[t]his offer of judgment will result in the dismissal of
this action with prejudice” as an inartful statement of consequences rather than of a
contingency. The language merely meant that entry of judgment would terminate all of
Dixon’s claims against Blackwell.
Because the offer allowed for entry of judgment and was not contingent,
the language in the offer regarding dismissal with prejudice did not prevent it from being
a valid Rule 68 offer.35
3. The offer did not require Dixon to assume improper obligations.
Dixon claims that the offer sought to impose burdens on her that were
beyond the scope of the pleadings. She argues that the offer improperly required her to
potentially face at least $75,000 in claims from her other insurers. She also argues that
the offer would require her to waive over $70,000 in State Farm Medical Payments
coverage.
The November 29, 2007 offer specified: “Defendant will assume
responsibility for the State Farm Medical Payments lien arising from Ms. Dixon’s post
35 While we find Dixon’s argument unpersuasive on the merits, we
additionally conclude that Dixon waived this issue by failing to raise it in the superior
court. “We will not consider issues on appeal that were not raised [in the trial court]
absent plain error, which exists ‘where an obvious mistake has been made which creates
a high likelihood that injustice has resulted.’ ” David S. v. State, Dept. of Health & Soc.
Servs., 270 P.3d 767, 774 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 667-68
(Alaska 2001)).
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accident treatment. Plaintiff will assume responsibility for any and all liens relating to
the subject accident other than the aforementioned State Farm Medical Payments lien.”
Dixon’s non-State Farm medical insurers might have asserted that they
were owed reimbursement out of the cash portion of Blackwell’s offer. However, unless
the insurers had specifically instructed Dixon not to seek to recover medical expenses
that they had paid36 or unless they were parties to the suit against Blackwell and
instructed her not to settle, Dixon would not have been put in a position in which she
would have had to reach into her own pocket and pay back medical expenses to her
insurers. Dixon does not claim that either of these conditions was met.
It was not improper for the offer to emphasize that it would only satisfy the
State Farm Medical Payments lien, and that Dixon would be responsible for other liens.
If the offer had referred to claims, rather than liens, a different case would be presented.
Arguably “claims” language would have made Dixon the indemnitor of Blackwell and
State Farm as to any amounts asserted by her other medical insurers in excess of the
amount of the offer of judgment. But stating that Dixon would be responsible for “liens”
simply underscored what the law already provided. Dixon could be responsible for
payment of her medical providers’ liens out of the proceeds she received from the offer
of judgment less prorated costs and fees.37
As to Dixon’s argument that the offer if accepted would have resulted in
a waiver on her part of her remaining $70,000 in medical payments coverage from State
Farm, we see no impropriety. Immediately after bringing suit against Blackwell, Dixon
withdrew her arbitration request for the remaining $70,000. This withdrawal either
36 See Ruggles ex rel. Estate of M ayer v. Grow, 984 P.2d 509, 512 (Alaska
1999).
37 See id .
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waived her remaining medical payments claim in itself or it made the question of
whether she was owed an additional amount on her medical payments coverage
dependent on the outcome of the litigation. Either way, the acceptance of the offer
would not have required Dixon to give up a benefit that was extraneous to the litigation.
4. The offer was not made in bad faith.
Dixon also argues that the offer was not made in good faith because “the
offer implied that Dixon’s lawsuit encompassed State Farm’s subrogated claim.” She
argues that because State Farm had instructed Dixon not to pursue reimbursement for the
$29,699.24 that State Farm had paid in her suit against Blackwell, and since State Farm’s
reimbursement claim as medical payments insurer for Dixon had already been presented
to State Farm in its capacity as Blackwell’s liability insurer, the implication in the offer
that the lawsuit encompassed the subrogated claim was necessarily false. It follows,
Dixon argues, that the offer was “deceptive on its face” and should for this reason be
deemed invalid for the purpose of triggering enhanced fees.
Dixon correctly suggests that State Farm had the right to instruct Dixon not
to pursue State Farm’s Medical Payments claim against Blackwell, and that once such
instructions were given Dixon lacked authority to pursue that claim.38 But we fail to see
38 As we stated in Ruggles :
When an insurer pays expenses on behalf of an insured it is
subrogated to the insured’s claim. The insurer effectively
receives an assignment of its expenditure by operation of law
and contract. If the insurer does not object, the insured may
include the subrogated claim in its claim against a third-party
tortfeasor. Any proceeds recovered must be paid to the
insurer, less pro rata costs and fees incurred by the insured in
prosecuting and collecting the claim. But the subrogated
claim belongs to the insurer. The insurer may pursue a direct
(continued...)
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how the offer of judgment was in any sense deceptive when it stated that the defendant
would assume responsibility for the State Farm Medical Payments lien. This statement
simply clarified that the intent of the offer was that it would be a “new money offer” in
the sense that there would be no offset for the State Farm Medical Payments lien.39 As
such, the questioned language of the offer was neither deceptive nor made in bad faith.40
Because the offer was not premature, called for the entry of judgment,
imposed no improper obligations on Dixon, and was not made in bad faith, the offer was
valid.41
38(...continued)
action against the tortfeasor, discount and settle its claim, or
determine that the claim should not be pursued . . . . When
[the insurer] instructed [the insured] not to pursue its
subrogation claim, [the insured] lacked authority to pursue it.
[The defendant tortfeasor] was entitled to raise this lack of
authority, for it represented a legitimate partial defense to [the
insured’s] claim.
Id .
39 We used the term “new money” in Jackman v. Jewel Lake Villa , 170 P.3d
173, 177 (Alaska 2007) to refer to an offer that would not be subject to an offset for
payments already made for the benefit of the insured.
40 Further, Dixon’s argument that the offer was deceptive because it implied
that her claim encompassed State Farm’s claim rings false for another reason. It appears
that Dixon actually did present the medical bills that State Farm had paid to the jury as
part of her claim for damages.
41 Dixon makes other claims related to the validity of the offer which we
decide summarily. She argues that the offer was indefinite because the value of the State
Farm Medical Payments lien was unclear. However, since Dixon had withdrawn the
arbitration claim against State Farm, the lien would have remained at $29,966.24 if she
had accepted the offer. Dixon also argues that the offer was not in complete satisfaction
of her potential claims. She contends that the only way the offer could have been a
(continued...)
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C. Dixon Did Not Beat The Offer.
Dixon claims that the jury’s verdict was actually more than the offer when
the “liens” that she would have had to assume responsibility for, totaling at least $75,000,
are taken into account. She also claims that accepting the offer would have amounted
to waiving her remaining $70,000 State Farm Medical Payments coverage. Since the
offer was for $28,878.83, she argues, the net amount of the offer was actually negative
($28,878.83 - $70,000 - $75,000). Because the jury gave her a positive amount, she
argues that the verdict beat this negative offer.
Rule 68(b) states: “If the judgment finally rendered by the court is at least
5 percent less favorable to the offeree than the offer, . . . the offeree . . . shall pay all costs
as allowed under the Civil Rules and shall pay reasonable actual attorney’s fees incurred
by the offeror . . . .”42
Dixon’s method of accounting is logically untenable. Dixon did not have
to assume responsibility for $75,000 in liens of other medical providers. As explained
above, the liens of medical providers were liens only against her recovery less prorated
costs and fees. Further, the value of her waiver of the remaining $70,000 in medical
payments coverage was not $70,000. As the jury determined, she had no additional
claim against that coverage. Thus there is no basis to subtract either of the claimed
amounts from the amount of the offer of judgment.
41(...continued)
complete satisfaction of her claims was if Blue Cross Blue Shield and Alaska Laborer’s
Trust had agreed to give up their option to sue Blackwell or his insurer. But the fact that
the other insurers could have had claims against Blackwell that were not barred by
Dixon’s acceptance of the offer does not mean that the offer was not in complete
satisfaction of her claims.
42 Alaska R. Civ. P. 68(b).
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Because Dixon’s recovery was at least five percent less favorable than
Blackwell’s offer, she did not beat the offer for Rule 68 purposes.
V. CONCLUSION
Because the jury’s verdict was not inadequate, the offer Blackwell made
was a valid Rule 68 offer, and the judgment finally rendered by the court was at least five
percent less favorable to Dixon than the offer, we AFFIRM the judgment of the superior
court.
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WINFREE, Justice, concurring.
I respectfully disagree with the court’s conclusion that Joshua Blackwell’s
Rule 68 Offer of Judgment was an offer to allow entry of judgment rather than an offer
to pay money in exchange for dismissal. But because the court alternatively concludes
that Dixie Dixon waived this argument by failing to raise it to the superior court, and I
agree with that conclusion, I concur in the ultimate decision by the court.
It is clear from the record that Dixon did not argue to the superior court that
Blackwell’s offer of judgment was an offer to pay rather than an offer to allow entry of
judgment. 1 The “indefinite and conditional” argument Dixon raised to the superior court
related to statements in the offer of judgment about resolution of potential liens on
Dixon’s recovery. The first time Dixon argued that Blackwell’s offer of judgment was
ambiguous regarding an entry of judgment or payment and dismissal was in her opening
appellate brief. Dixon therefore did not preserve this issue for appeal,2 and that should
be enough to resolve this issue, as the court expressly states.3
But because the court nonetheless addresses the merits of the issue, I will
set out the nature of my disagreement. An offer of judgment that includes language for
1 See ASRC Energy Servs. & Power Commc’n, LLC v. Golden Valley Elec.
Ass’n , 267 P.3d 1151, 1168-69 (Alaska 2011) (holding invalid an offer of judgment that
was ambiguous as to payment for dismissal or entry of judgment); Sayer v. Bashaw, 214
P.3d 363, 366 (Alaska 2009) (holding invalid Rule 68 offer to pay settlement amount in
return for dismissal).
2 “We will not consider issues on appeal that were not raised [in the trial
court] absent plain error, which exists ‘where an obvious mistake has been made which
creates a high likelihood that injustice has resulted.’ ” David S. v. State, Dep’t of Health
& Soc. Servs., 270 P.3d 767, 774 (Alaska 2012) (quoting D.J. v. P.C. , 36 P.3d 663, 667
68 (Alaska 2001)).
3 Slip Op. note 35.
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the entry of judgment in exchange for dismissal is, as noted in ASRC Energy Services &
Power Communications, LLC v. Golden Valley Electric Ass’n , ambiguous at best and an
offer to pay at worst, and therefore unenforceable.4 In my view we should draw a bright-
line rule on this point. Moreover, contrary to the court’s discussion today, Blackwell’s
superior court briefing and the superior court’s order both support the conclusion that
Blackwell’s offer actually was an offer to pay, not an offer to allow entry of judgment.
When arguing whether the offer of judgment language about liens was vague, indefinite,
or conditional, Blackwell stated:
[Blackwell] offered to pay Ms. Dixon $28,878.83, plus Rule
79 costs, prejudgment interest, Rule 82 attorney fees, and to
assume responsibility for the State Farm Medical Payments
lien, the amount of which has been disclosed and discussed
at length in the medical payments arbitration process over the
prior year. That was the offer, plain and simple.
The superior court’s order awarding Rule 68 attorney’s fees stated:
Mindful of the case law cited by the parties, the court finds
the offer of judgment sufficiently clear and enforceable
without conditions. State Farm was going to pay to Ms.
Dixon, on behalf of . . . Mr. Blackwell, the sum of
$28,878.83, plus ARCP 82 attorneys fees, plus interest, plus
allowable costs, and State Farm would additionally eat its
own med pay lien . . . .
It is apparent that both Blackwell and the superior court considered
Blackwell’s Rule 68 offer to be an offer to pay in return for a dismissal, not an offer to
allow entry of judgment. But because this specific issue was not raised to the superior
court and our ASRC Energy Services decision had not yet been issued, I cannot conclude
4 ASRC Energy Servs. , 267 P.3d at 1168-69.
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that it was plain error for the superior court to enforce the offer as an offer to allow entry
of judgment.5
5 See note 2, supra .
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