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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pouzanova v. Morton (6/20/2014) sp-6915

Pouzanova v. Morton (6/20/2014) sp-6915

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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EKATERINA V. POUZANOVA,                                    )  

                                                           )    Supreme Court No. S-14442  

                            Petitioner,                    )  

                                                           )    Superior Court No. 3AN-10-08545 CI  

         v.                                                )    District Court No. 3AN-08-11802 CI  



KUUIPO T. MORTON,                                          )    O P I N I O N  


                            Respondent.                    )    No. 6915 - June 20, 2014  


                  Petition for Hearing from the Superior Court of the State of  


                  Alaska,  Third  Judicial  District,  Kodiak,  Steve  W.  Cole,  

                  Judge,  on  appeal  from  the  District  Court  for  the  State  of  

                  Alaska, Anchorage, John R. Lohff, Judge.  

                  Appearances:    David  S.  Carter,  Hughes,  Gorski,  Seedorf,  

                  Odsen & Tervooren, LLC, Anchorage, for Petitioner.  Allison  

                  Mendel   and   Laurence   Blakely,   Mendel   &   Associates,  

                  Anchorage, for Respondent.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, and Maassen,  


                  Justices. [Carpeneti, Justice, not participating.]  


                  MAASSEN, Justice.  


                  This case, arising out of a traffic accident, comes to us on a petition for  


hearing from a decision of the superior court, acting as the intermediate appellate court  

following a trial in district court. The superior court reversed the district court judgment  


and remanded the case for a new trial.  We agree with the superior court that a remand  


----------------------- Page 2-----------------------

is in order because certain evidence of domestic violence should have been excluded  


under Alaska Evidence Rule 403.  On two other issues, however, we reverse the superior  

court's decision and hold that the district court was correct:  it correctly dismissed the  

plaintiff's punitive damages claim and correctly declined to require that the plaintiff's  

husband be joined as a third-party defendant.  


                    On May 26, 2008, Ekaterina Pouzanova drove past a stop sign and into an  


intersection in Anchorage and was broad-sided by a vehicle driven by Kuuipo Morton.  


Morton went to the emergency room and was diagnosed with lower back pain and a  


possible compression fracture.  She continued to complain of pain in her back and neck  

in  the  months  that  followed,  and  she  received  some  additional  treatment  for  these  


                   Pouzanova did not contest liability for the accident, but she did dispute the  


extent of Morton's injuries. Morton sued in district court for non-economic and punitive  


damages.  She initially included claims for lost earnings and medical expenses as well  

but dropped them before trial.  The district court dismissed the punitive damages claim  


on  summary  judgment,  finding  that  the  evidence  could  not  support  a  finding  of  


                   During jury selection, Morton challenged three potential jurors for cause.  


The court declined to excuse the jurors, and Morton used three of her four peremptory  


challenges to replace them.  During trial the court allowed testimony about domestic  

violence in Morton's marriage as relevant to her claim for loss of enjoyment of life,  


including evidence of an incident in which she allegedly threatened her husband with a  


hammer.  The jury returned a verdict of $5,000 for past non-economic loss and zero for  


future non-economic loss.  Because Morton had earlier rejected an offer of judgment  


                                                             -2-                                                       6915

----------------------- Page 3-----------------------

under Civil Rule 68, the  amount of attorney's fees and costs assessed against her more  


than offset the amount of the verdict in her favor.  

                    Morton appealed to the superior court, which vacated the judgment and  


remanded the case for a new trial.  The superior court found reversible error  in the  

district court's grant of summary judgment on the punitive damages claim; its refusal to  

grant the challenges for cause during jury selection; its failure to require the joinder of  


Morton's husband as a third-party defendant for purposes of allocation of fault; and its  


admission of evidence of the domestic violence incident involving the hammer.  

                    Pouzanova filed a petition for hearing, which we granted.  


                    In an appeal from a judgment of a superior court acting as an intermediate  


court of appeal, we independently review the judgment of the district court.1  



                    "We review summary judgment decisions de novo, affirming if there are  


no genuine issues of material fact and the moving party is entitled to judgment as a  

                       2                                                                                                    3  

matter of law."    We draw all factual inferences in favor of the non-moving party.    


                    Although  we  ordinarily  review  the  decision  whether  someone  is  an  



indispensable party for an abuse of discretion,  the decision in this case depends upon the 

          1         Smith v. Kofstad         , 206 P.3d 441, 444 (Alaska 2009) (quoting Hallam v.  

Holland Am. Line, Inc. , 27 P.3d 751, 753 (Alaska 2001)).  

          2         Brannon  v.  Cont'l  Cas.  Co. ,  137  P.3d  280,  284  (Alaska  2006)  (citing  

Makarka v. Great Am. Ins. Co. , 14 P.3d 964, 966 (Alaska 2000)).  

          3         Id.  (citing Morgan v. Fortis Benefits Ins. Co. , 107 P.3d 267, 269 (Alaska  



          4         Tlingit-Haida Reg'l Elec. Auth. v. State, 15 P.3d 754, 768 n.48 (Alaska  



                                                             -3-                                                        6915

----------------------- Page 4-----------------------


interpretation  of  a  statute,  which  we  decide  de  novo.     A  superior  court's  decision  

whether to admit evidence under Evidence Rule 403 requires it to balance the probative  


value of the evidence against its unfair prejudice; we review this balancing for abuse of  






          A.	       The District Court Properly Dismissed The Punitive Damages Claim  

                    On Summary Judgment.  


                    Before  trial,  Pouzanova  moved  for  summary  judgment  on  the  issue  of  

punitive  damages.    The  district  court  granted  the  motion  on  grounds  that  there  was  

insufficient  evidence  that  Pouzanova  had  acted  with  recklessness  rather  than  mere  

negligence.    Awards  of  punitive  damages  require  proof  by  "clear  and  convincing  


evidence" that the defendant's conduct "was outrageous, including acts done with malice  

or bad motives," or that it "evidenced reckless indifference to the interest of another  



person."       The superior court reversed the district court's dismissal of the claim, holding  

that the sworn statements of two witnesses, while "very minimal" evidence, were enough  


to create an issue of fact for the jury as to whether Pouzanova saw the stop sign and  


intended to run it.  We do not view these statements as sufficient to distinguish this case  



from Hayes v. Xerox Corp. ,  in which we affirmed a grant of summary judgment on a  

punitive  damages  claim.    We  conclude,  therefore,  that  the  district  court  correctly  

dismissed the claim.      

          5         ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.                                 , 322 P.3d  

114, 122 (Alaska 2014).  

          6         Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007).  

          7         AS 09.17.020(b).  

          8         718 P.2d 929, 934-36 (Alaska 1986).  

                                                              -4-	                                                         6915

----------------------- Page 5-----------------------

                         One of the statements was provided by Pouzanova's passenger, who said,  

"I don't know why or what happened, but she blew right through the stop sign and then                                                            


we got T-boned. . . .  Oh, it was straight through . . . like there wasn't even a stop sign  

there  or  an  intersection  .  .  .  ."    The  other  statement  was  from  a   driver  who  was  


approaching the intersection behind Pouzanova.  He said, "It looked to me like maybe  

she was trying to jump across to get across the street before the other car came or maybe     

she didn't stop, I'm not sure, like I said, as I pulled up . . . she was already going or     

trying to go across."  

                         Morton  also  contends  that  two  statements  made  by  Pouzanova  herself  


support a finding of recklessness.  First, Pouzanova told her insurance company several  


days after the accident, "There was a stop sign, yeah.  The thing is I don't remember  


what exactly happened, but witnesses say that [indiscernible] that I did stop, but I -  

honestly I don't remember."  At her later deposition, Pouzanova denied that she had ever  


made a statement to her insurance company about the accident; she also stated that she  

believed that she did not see the stop sign because the sun was in her eyes.  


                         In Hayes , a case much like this one, we articulated the showing that must  

be made before a plaintiff may recover punitive damages:  

                         [T]he plaintiff must prove that the wrongdoer's conduct was  


                         outrageous, such as acts done with malice or bad motives or  


                         a  reckless  indifference  to  the  interests  of  another.    Actual  


                         malice need not be proved.  Conscious action in deliberate  

                         disregard of [others] . . . may provide the necessary state of  

                         mind to justify punitive damages.  If the evidence does not  

                         give   rise  to  an  inference  of  actual  malice  or  conduct  

                         sufficiently  outrageous  to  be  deemed  equivalent  to  actual  

                                                                             -5-                                                                      6915

----------------------- Page 6-----------------------

                       malice,  then  the  trial  court  need  not  submit  the  issue  of  


                       punitive damages to the jury.     


We noted in Hayes our approval of the Restatement's definition of "reckless disregard  


                                              We adopted the comments' description of recklessness in the  

of the safety of another." 

factual context presented here:                             

                       It is reckless for a driver of an automobile  intentionally to  


                       cross a through highway in defiance of a stop sign if a stream  

                       of  vehicles  is  seen  to  be  closely  approaching  in  both  

                       directions, but if his failure to stop is due to the fact that he  


                       has permitted his attention to be diverted so that he does not  


                       know that he is approaching the crossing, he may be merely  



                       negligent and not reckless.                         

The plaintiff in Hayes argued that recklessness was an issue for the jury because there  


was evidence that the defendant was familiar with local streets and traffic signals and that  


he had failed to "look for traffic as he approached the intersection," to brake, or to "look  


                                                                                            After reviewing this evidence in  

for the traffic signal due to lapse of concentration." 

           9           Id. at 934-35 (citations omitted) (internal quotation marks omitted).  

            10         Id. at 935 n.5.   RESTATEMENT (SECOND) OF TORTS  500 (1964) provides:                           

                       The actor's conduct is in reckless disregard of the safety of  

                       another if he does an act or intentionally fails to do an act       

                       which it is his duty to the other to do, knowing or having             

                       reason to know of facts which would lead a reasonable man  

                       to realize, not only that his conduct creates an unreasonable  


                       risk of physical harm to another, but also that such risk is  


                       substantially greater than that which is necessary to make his  


                       conduct negligent.  

           11          Hayes , 718 P.2d at 935 (emphasis added) (quoting RESTATEMENT (SECOND)  

OF TORTS  500 cmt. b).  

            12         Id.  

                                                                       -6-                                                                 6915

----------------------- Page 7-----------------------

light of the Restatement definitions, we concluded that it "did not present genuine issues     

of  material  fact  nor  give  rise  to  an  inference  of  conduct  amounting  to  reckless  

indifference to the rights of others."13  


                    Pouzanova contends that in this case,  as  in Hayes , there is insufficient  


evidence of reckless intent.   Morton counters that unlike the plaintiff's claim in Hayes ,  

which  was  based  on  the  defendant's  failure  to  see  a  stop  light,  her  claim  is  that  


Pouzanova  saw  the  stop  sign  and  chose  to  run  it.                      She  argues  that  the  two  witness  


statements and Pouzanova's arguably conflicting recollections raise a genuine issue as  

to whether Pouzanova saw the sign.  


                    We conclude, however, that the district court did not err when it found that  

this evidence was insufficient to support a finding of recklessness.  The statement of  

Pouzanova's passenger supports only the undisputed proposition that she drove through  


the stop sign; it says nothing about her state of mind when she did so.  The second  


witness, who was coming up behind Pouzanova at the intersection, was in an even worse  


position to speculate on Pouzanova's intent.  In fact, he testified that she was already  

proceeding into the intersection when he noticed her car ahead of him, and he did not  

even  know  whether  she  had  stopped  at  the  stop  sign.    We  also  do  not  accept  that  

Pouzanova's post-accident statements, in which she first disclaimed any recollection of  


the accident and then speculated that the sun must have been in her eyes, can reasonably  

be construed as admissions that she saw the stop sign at the time.   

                    In  sum,  there  is  no  evidence  of  recklessness  that  would  meaningfully  


distinguish this case from Hayes.  We hold, therefore, that the district court correctly  

granted summary judgment to Pouzanova on Morton's punitive damages claim.  

          13        Id. at 936.  

                                                             -7-                                                            6915  

----------------------- Page 8-----------------------

          B.	       The  District  Court  Properly  Declined  To  Require  The  Joinder  Of  

                    Morton's Husband For Purposes Of Allocation Of Fault.  

                    Morton brought a motion in limine before trial that sought, among other  


things, to exclude any evidence "blaming [Morton's husband] for causing any of Mrs.  


Morton's claimed injury" on grounds that the husband should have been joined as a  


third-party defendant pursuant to AS 09.17.080 and Alaska Civil Rules 14 and 16.  The  

trial court denied that aspect of the motion.  At trial, both Morton and her husband  

testified about violence in their marriage.  Pouzanova argued that these incidents of  


domestic violence were relevant to Morton's claim for loss of enjoyment of life, and that  


some  or  all  of  Morton's  non-economic  loss  was  due  not  to  the  accident  but  to  her  


domestic situation.  On appeal, the superior court ruled that the district court had erred  


in "allowing plaintiff's husband to be blamed for plaintiff's injuries without him being  

joined  as  a  party  to  the  lawsuit."    Pouzanova  contends  that  the  superior  court  

misinterpreted  the  governing  statutes;  Morton  appears  to  concede  that  the  superior  

court's analysis was flawed.  

                    Under AS 09.17.080, a jury may not allocate fault to a third party unless  


that third  party  has been joined as a defendant, with certain exceptions not relevant  

        14  "Fault" is statutorily defined to include "acts or omissions that are in any measure  


negligent, reckless, or intentional toward the person or property of the actor or others,  


or that subject a person to strict tort liability."15  Although the definition of "fault" is thus  


expansive, we agree with Pouzanova that the requirement of joinder is limited to those  


who are arguably at fault for damages caused by the incident at issue in the action.  

          14        AS 09.17.080(a).  

          15        AS 09.17.900.  

                                                             -8-                                                          6915  

----------------------- Page 9-----------------------

                    Subsection  (a)(1)  of  section  .080  requires  the   jury,  "[i]n  all  actions  

involving fault of more than one person," to first find "the amount of damages each  


claimant would be entitled to recover if contributory fault is disregarded."                                         In other  


words, the jury's first task in deciding on the damages aspect of a verdict is to determine  

the totality of the damages suffered by the plaintiff and attributable to the incident at  


issue.  Subsection (a)(2) requires the jury to then determine "the percentage of the total  


fault that is allocated to each claimant, defendant, third-party defendant, person who has  

                                                                                                                       17  The  

been released from liability, or other person responsible for the damages . . . ." 

allocation of fault under subsection (a)(2) is thus for purposes of determining liability for  


those damages that the claimant "would be entitled to recover" under subsection (a)(1).  


That is, it is only fault for the incident at issue that is being allocated among potentially  


responsible parties.  Pouzanova's challenge here was to the amount of damages  Morton  


"would be entitled to recover" under subsection (a)(1).  Pouzanova was not contending  


that Morton's husband was responsible for damages that Morton would otherwise be  


"entitled to recover" in the action; she was contending that Morton was not "entitled to  


recover" those damages at all, because they had not been caused by the incident that was  

the subject of Morton's complaint.  


                    The only damages Morton was seeking in this action were those caused by  


the   automobile   accident,   for   which   Pouzanova   conceded   liability.      Under   the  


circumstances, the district court was correct in ruling that Morton's husband did not have  

to be joined as a third-party defendant.  

          16        AS 09.17.080(a)(1).  

          17        AS 09.17.080(a)(2) (emphasis added).  

                                                              -9-                                                            6915  

----------------------- Page 10-----------------------

          C.	      The District Court, On Remand, Should Exclude Evidence Of The  

                   Hammer Incident Under Evidence Rule 403.  

                   Finally, Pouzanova takes issue with the superior court's decision that the  


district court erred in allowing brief testimony about an incident of domestic violence in  


which Morton allegedly threatened her husband with a hammer.  The superior court  

found  no  abuse  of  discretion  in  the  district  court's  admission  of  other  evidence  of  


domestic violence, explaining that it was relevant to Morton's claim for damages for loss  


of enjoyment of life.  The superior court found, however, that evidence of the hammer  


incident should have been excluded for two reasons:  (1) it was not given enough context  

to make it relevant, and (2) it was more prejudicial than probative.   We agree.  

                   Evidence  Rule  403  provides:    "Although  relevant,  evidence  may  be  


excluded if its probative value is outweighed by the danger of unfair prejudice, confusion  

of the issues, or misleading the jury, or by considerations of undue delay, waste of time,  

or needless presentation of cumulative evidence."  "Evidence properly excludable as  

'cumulative'  falls  into  two  categories[:]  .  .  .  evidence  supporting  an  uncontested  or  

                                                                                                                  18  The  

established fact [and] . . . evidence repeating a point made by previous evidence." 

latter category of cumulative evidence should be excluded only with caution, since it by  


definition concerns a disputed point, and "repetition of the same evidence on a disputed  


point by several witnesses is often persuasive in establishing the truth of that evidence."19  


                   We do not need to decide in this case whether the general evidence of  

domestic violence was relevant to Morton's claim for damages for loss of enjoyment of  


          18       Wasserman v. Bartholomew, 923 P.2d 806, 813 (Alaska 1996) (citations  


          19       Id. n.22 (citing 6 JOHN H.W           IGMORE, EVIDENCE  1908, at 760 (Chadbourne  

Rev. 1976)).  

                                                          -10-	                                                        6915  

----------------------- Page 11-----------------------



life, as it is only evidence of the hammer incident that is before us on appeal.                                  Evidence  

of the hammer incident is problematic.  First, as the superior court noted, although the  


defense argued that Morton's ability to wield a hammer was proof of her recovery from  

her accident-related injuries, the testimony about when the hammer incident occurred  


was too vague to allow the jury to make that connection.  And even if this temporal  

deficiency could be cured on remand, the evidence is still more unfairly prejudicial than  

probative.  The evidence was cumulative in both senses of the term:  it was undisputed  


that there was domestic violence in the Mortons' marriage, and this point had already  

been made repeatedly in other testimony.  The probative value of the hammer incident  

was therefore meager, while its prejudicial effect was likely high.   


                    Morton asks us to require the exclusion of "the majority of the evidence of  


domestic violence and its criminal aftermath."  The only evidentiary issue on appeal,  


                                                                                                          But we assume  

however, relates to the hammer incident, and that is all we decide here. 

that if other evidence of domestic violence is offered at trial on remand and a proper  

objection  is  made,  the  trial  court  will  approach  the  balancing  process  of  Evidence  

          20        See Liimatta v. Vest, 45 P.3d 310, 314 (Alaska 2004) ("[A] jury assigned  

the responsibility of determining the value of a loss of enjoyment of life should have had  


the opportunity to consider evidence that [a plaintiff's] mental and physical functions,  


customary activities and capacity to enjoy the pleasures of life were already restricted by  


a long-term addiction to drugs." (quoting Ocasio v. Amtrak, 690 A.2d 682, 684-85 (N.J.  


Super. App. Div. 1997)) (internal quotation marks omitted)).  We see major distinctions  


between domestic violence and the drug addiction at issue in Ocasio but do not need to  


discuss them further here.  

          21        See  Schofield  v.  City  of  St.  Paul,  238  P.3d  603,  608  (Alaska  2010)  


(declining to review additional alleged evidentiary issues when remanding for new trial  


"[b]ecause it is unknown what specific evidence will be introduced on remand and what  

objections might be raised").  

                                                            -11-                                                        6915

----------------------- Page 12-----------------------

Rule 403 with care, particularly in light of its earlier determination that the evidence has  

only "minimal relevance."  

                   V.       CONCLUSION  

                   We REVERSE the superior court's decision on appeal on the issues of  


punitive damages and the allocation of fault.  We AFFIRM the superior court's decision  


on appeal on the admissibility of evidence of the hammer incident and REMAND to the  

district court for a new trial in conformance with this opinion.22  

          22       Because we are reversing on evidentiary grounds, we do not reach the issue  

whether the district court erred when it failed to grant Morton's challenges for cause  of  


three  jurors,  who  Morton  argues  were  not  properly  rehabilitated  after  expressing  

skepticism about claims like Morton's.  We do note the requirement of our prior cases  


that the rehabilitation of a juror who is challenged for cause must include an individual  

examination as to whether the juror "will be fair, impartial and follow instructions."  See  

Joseph v. State , 26 P.3d 459, 463 (Alaska 2001) (holding that Alaska Civil Rule 47(c)  


"implicitly requires the court to examine a prospective juror individually before deciding  

whether to grant a challenge [for cause]"); Sirotiak v. H.C. Price Co., 758 P.2d 1271,  


 1277 (Alaska 1988) ("All that is required of a prospective juror is a good faith statement  


that he or she will be fair, impartial and follow instructions.").    

                                                          -12-                                                        6915  

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