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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bush v. Elkins (1/23/2015) sp-6980
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES F. BUSH, )
) Supreme Court No. S-14947
Appellant, )
) Superior Court No. 3KN-10-01140 CI
v. )
) O P I N I O N
CRAIG ELKINS and THE )
GOVERNMENT EMPLOYEES ) No. 6980 - January 23, 2015
INSURANCE COMPANY, d/b/a )
GEICO CASUALTY COMPANY, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Anna Moran, Judge.
Appearances: James F. Bush, pro se, Sterling, Appellant.
Kimberlee A. Colbo, Hughes Gorski Seedorf Odsen &
Tervooren, LLC, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
An adult passenger in a car was injured in a single-car accident. The
passenger and his family brought suit against the vehicle's unlicensed minor driver, the
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minor's mother, the owner of the car, the insurance policy holder, the insurer, and the
insurance adjuster who handled the claims arising from the accident. The passenger's
father attempted to raise a contractual interference claim, but the superior court
concluded that the complaint did not state such a claim on his behalf. The superior court
dismissed the father's only other claim - intentional infliction of emotional distress -
removed the father's name from the case caption, and ordered the father to cease filing
pleadings on behalf of other parties.
After the superior court judge dismissed him from the action, the
passenger's father attempted to file a first amended complaint, which expressly stated his
contractual interference claim on the theory that he was a third-party beneficiary of the
contracts between his son and his son's doctors. But the superior court denied the father
leave to amend the complaint because the father had already been dismissed from the
case. Following a settlement among all of the other plaintiffs and defendants - a
settlement in which the father did not join - the superior court granted final judgment
to the insurer. The insurer moved for attorney's fees against the father under Alaska
Civil Rule 82, but the father never responded to that motion. The superior court granted
the award without soliciting a response from the father, and the father appeals.
We affirm the superior court's order dismissing the father's claims and
denying leave to amend the complaint because the proposed first amended complaint was
futile. But because the superior court had barred the father from filing any further
pleadings in the case and had removed his name from the caption, the superior court had
a responsibility to inform the self-represented father that he was permitted to file an
opposition to the motion for attorney's fees. We thus vacate the fee award and remand
to the superior court to afford the father an opportunity to respond to the insurer's motion
for reasonable attorney's fees.
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II. FACTS AND PROCEEDINGS
A. The Accident And Initial Complaint
This action arises out of a single-car accident in early July 2010. The driver
was 16-year-old Bradley Luke, who was not licensed to drive in Alaska. Bradley
crashed a car owned by Monte Luke, which was insured by Government Employees
Insurance Company (GEICO) under a policy held by Coral Frank. Craig Elkins is the
GEICO employee in Alaska who handled claims arising from the accident. Frank Bush,
an adult passenger in the car, suffered severe injuries in the accident.
Frank Bush, his mother, his father, and his sister filed a civil complaint
against Bradley Luke as the driver of the car and against Bradley's mother Arlene Luke;
Monte Luke, the owner of the car; Coral Frank, the policy holder; GEICO, the insurer;
and its employee, Elkins. The plaintiffs proceeded without representation. Frank Bush's
father, James Bush, is the sole appellant in this case.
The complaint alleged seven causes of action including four claims against
Bradley Luke, Arlene and Monte Luke, and Coral Frank (collectively, "the Luke
defendants") for negligent driving, negligent supervision, negligent entrustment, and
negligent infliction of emotional distress. The complaint also alleged three claims
against GEICO and its employee Elkins for contractual interference, intentional infliction
of emotional distress, and negligent supervision. On the claim of contractual
interference, the complaint alleged that GEICO "improperly interfered with contractual
relations betwee[n] the plaintiff(s) and various health care providers," resulting in
increased physical and economic injuries to Frank Bush and "sever[e] emotional distress
and anxiety" to "the plaintiff(s)." Whether this language effectively pleaded a claim for
contractual interference on James's behalf is central to the subsequent proceedings before
the superior court and to this appeal.
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B. Procedural History: Motion To Dismiss, Motions For Summary
Judgment, And Motions To Amend The Complaint
GEICO answered the complaint and moved to dismiss all claims raised
against it for failure to state a claim. It admitted that the vehicle involved in the accident
was insured by GEICO and argued that it could not, as a matter of law, be held directly
liable for the wrongdoing of the Luke defendants. GEICO contended that the three
causes of action brought against it - intentional infliction of emotional distress,
negligent supervision, and contractual interference - were "really claims handling type
claims" that might apply were the plaintiffs insured by GEICO but could not apply
absent a contractual relationship between GEICO and Frank Bush, his parents, or his
sister.
The plaintiffs responded that GEICO was misreading the three causes of
action, arguing that those claims against GEICO were for torts whose viability is
unaffected by the existence of a contractual relationship. The superior court granted in
part and denied in part GEICO's motion to dismiss. The order specified that the "direct
actions against [the Luke defendants] . . . may not be brought against [GEICO] based on
its role as the insurer for these individuals." But the superior court denied GEICO's
motion to dismiss the claim for intentional interference with contractual relations,
reasoning that the claim provided GEICO with "fair notice of the grounds on which
Plaintiffs' claim rests," and it denied GEICO's motion to dismiss the negligent
supervision claim, noting that it did not "fully understand the basis" of the claim and that
the claim might better be addressed after it was "more fully developed." Finally, the
superior court denied GEICO's motion to dismiss the intentional infliction of emotional
distress claim, "except for that portion pertaining to GEICO's failure to contact James
Bush" which it granted because "fail[ing] to contact Plaintiff James Bush as the family's
designee . . . is not outrageous and is not actionable." Thus, the superior court's ruling
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on GEICO's motion dismissed James's only individual claim: intentional infliction of
emotional distress. The other plaintiffs - Frank Bush, his mother, and his sister -
retained their first four claims against the Luke defendants, as well as their three claims
against GEICO.
Before resolution of its motion to dismiss, GEICO moved for summary
judgment on all remaining claims against it and its claims handler, Elkins, reiterating the
arguments raised in its motion to dismiss. The Luke defendants moved for summary
judgment against James because he "ha[d] not stated a claim against the defendants,"
requested that James's "name [be] removed from the caption," and requested "an order
prohibiting him from the unauthorized practice of law," stating their view that James
"should not be allowed to continue to sign any type of pleading on behalf of any of the
parties or make appearances in court for the parties" once dismissed from the lawsuit.
GEICO joined the Luke defendants' motion for summary judgment against
James and their motion for an order removing James from the case caption. In response
to these motions, James acknowledged that he "[brought] no claim against [the Lukes]."
In his response to GEICO's motions for summary judgment, James for the first time
stated, with regard to the contractual interference claim, his view that he "was . . . a third-
party beneficiary to the contracts involved" and that he remained "a viable party" in that
claim. He further argued that the motions were "insufficient as a matter of law" because
"[n]owhere in any of the pleadings proffered by GEICO . . . do they allege [James Bush]
would not be a proper party to the action against them under a theory of intentional
interference with contractual relations."
In June 2012 the superior court granted the defendants' motions for
summary judgment against James. The superior court read the complaint as indicating
that James had brought a single claim for intentional infliction of emotional distress
against GEICO and that this claim had been rejected when the superior court granted
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----------------------- Page 6-----------------------
GEICO's motion to dismiss. The superior court also concluded that "James Bush should
be removed from the caption of this case and is not allowed to file pleadings on behalf
of other parties, as he is not a licensed attorney in the State of Alaska."
On the same day that it granted complete summary judgment against James,
the superior court granted some of the remaining plaintiffs' motions for leave to amend
their complaint. Frank Bush, his parents, and his sister had each moved to amend their
complaint. All four motions were identical, asking only to add a defendant and two
1
plaintiffs to the action. The Luke defendants did not oppose the motions, and the
superior court granted the motions made by Frank's mother and sister, while overlooking
Frank's and James's identical motions.2
Shortly after the superior court granted the motions for summary judgment,
James filed a motion "seeking clarification and/or reconsideration upon the issue of his
status as a plaintiff." He argued that the superior court's order denying GEICO's motion
to dismiss as to the contractual interference claim had "ruled that all plaintiffs," including
James, "may have an actionable complaint against [GEICO] for interference with
contractual relations," and he reiterated the position he took in his opposition to the
motion for summary judgment that he was "a third party beneficiary" of Frank's attempts
to contract with health care providers because he "was paying all costs associated with
achieving performance of these contracts." Accordingly, James argued that the court had
1 James contends that he sought leave to amend "to add additional parties and
to solidify his third-party beneficiary claim." The record on appeal does not support this
assertion. He sought leave to amend only to add additional parties.
2
James contends that the superior court "granted his motion seeking leave
to amend the complaint." Once again, the record on appeal does not support this
assertion.
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no authority to remove his name from the caption and that the removal would improperly
interfere with James's right to appeal.
The superior court denied James's motion for clarification and
reconsideration, explaining that its order granting GEICO's motion to dismiss entirely
disposed of James's role in the case by dismissing his intentional infliction of emotional
distress claim. The superior court ruled that "[t]he original complaint d[id] not set forth"
a claim by James for contractual interference and did not allege that James "is a third
party beneficiary to contracts entered by Frank Bush."
After denial of James's motion, the plaintiffs, including James, submitted
a first amended complaint. Along with adding another defendant and two new plaintiffs,
the amended complaint also revised the contractual interference claim to state that James
"invest[ed] personal funds for the express purpose of obtaining medical care for his son,"
that James "invested these funds with the expressed intent . . . of assisting [Frank] in
contracting with various health care providers to receive treatment," that James "sought
no other, no[r] did he receive any other, consideration for having provided these funds,"
and that "to date [James] has not received the contractual consideration he had expected
when investing these funds and as a result has sustained economic loss and personal
injury in the form of emotional distress."
The superior court rejected James's first amended complaint, ruling that
James "can't be added back in; I've already dismissed him out." The superior court
returned the amended complaint for re-filing without James as a plaintiff.
C. Settlements, Final Judgment, And Attorney's Fees
All of the plaintiffs and defendants, except James, reached a settlement and
agreed to dismiss the action with prejudice and bear their own litigation expenses. James
separately agreed to dismiss with prejudice any claims against the Luke defendants, but
he did not agree to a settlement with GEICO. Having failed to reach a settlement,
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GEICO filed a motion for entry of final judgment against James, which the superior court
granted in light of its prior orders dismissing all of James's claims.
GEICO then moved for attorney's fees from James pursuant to Alaska Civil
Rule 82. GEICO stated that its actual costs were $24,700 and sought an award of
3 James did not respond to the motion for attorney's fees. Instead, in his points
$7,410.
on appeal filed with this court a month before the superior court's order awarding
attorney's fees to GEICO, James expressed his view that the superior court erred by
"removing [James's] name from the caption" while "continu[ing] to accept and rule upon
pleadings offered by other parties seeking procedural decisions and judgments against
[him] and not permitting him to file any sort of responsive pleadings."
GEICO filed a motion requesting a ruling on its motion for an award of
attorney's fees, and the superior court awarded GEICO $3,533.68 in attorney's fees from
James, noting that it had deducted fees incurred after James's claims were dismissed, and
that it awarded only 20% of the actual reasonable fees, per Rule 82(b)(2), because the
case did not go to trial.
III. STANDARDS OF REVIEW
"We review for abuse of discretion a trial court's decisions concerning
whether to inform a pro se litigant of the specific defects in a pleading and whether to
provide an opportunity to remedy those defects. 'We will find an abuse of discretion if
our review of the record leaves us with a definite and firm conviction that the [trial court]
4
Similarly, "[w]e review a superior court's denial of a motion to
made a mistake[.]' "
3 GEICO argued that it was the prevailing party and therefore was entitled
to 30% of reasonable actual fees, despite the fact that the case did not go to trial.
4 Genaro v. Municipality of Anchorage, 76 P.3d 844, 845 (Alaska 2003)
(alteration in original) (quoting Hughes v. Bobich , 875 P.2d 749, 755 (Alaska 1994)).
-8- 6980
----------------------- Page 9-----------------------
5
amend a complaint for abuse of discretion." However, "[i]t is within a trial court's
discretion to deny such a motion where amendment would be futile because it advances
6
a claim or defense that is legally insufficient on its face." "We consider with
independent judgment whether a proposed amended complaint could survive dismissal;
if we conclude that it could not, we will hold that the superior court did not abuse its
7
"We review rulings on motions
discretion by denying the motion for leave to amend."
8
for summary judgment de novo." "When applying the de novo standard of review, we
apply our 'independent judgment to questions of law, adopting the rule of law most
9
Finally, "[t]his court reviews an
persuasive in light of precedent, reason, and policy.' "
award of attorney's fees for an abuse of discretion. Under this standard, the trial court
has broad discretion in awarding attorney's fees; this court will not find an abuse of
discretion absent a showing that the award was arbitrary, capricious, manifestly
unreasonable, or stemmed from improper motive."10
5 Krause v. Matanuska-Susitna Borough , 229 P.3d 168, 174 (Alaska 2010).
6 Id. (internal quotation marks omitted).
7 Id. at 177.
8
ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d
114, 122 (Alaska 2014) (citing Witt v. State, Dep't of Corr., 75 P.3d 1030,1033 (Alaska
2003)).
9 Id. (quoting Russell ex rel. J.N. v. Virg-In , 258 P.3d 795, 802 (Alaska
2011)).
10 Id. at 137 (quoting Ware v. Ware, 161 P.3d 1188, 1192 (Alaska 2007))
(internal quotation marks omitted).
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----------------------- Page 10-----------------------
IV. DISCUSSION
On appeal, James raises arguments related to the dismissal of his claims at
11 We
summary judgment and the superior court's award of attorney's fees against him.
address each in turn.
A. The Superior Court's Grant Of Summary Judgment And Refusal To
Grant Leave To Amend The Complaint
James argues first that summary judgment was improperly granted because
he had raised a contractual interference claim in the original complaint and GEICO failed
to satisfy its burden to establish no genuine issue of material fact under Alaska Civil
12
Rule 56(c). Alternatively, James argues that the superior court should either have
informed him of the need to amend his complaint before granting summary judgment
against him or adopted the first proposed amended complaint submitted to the court after
his dismissal from the case. Because James ultimately filed an amended complaint,
which clearly articulated his contractual interference claim, any error regarding the
superior court's interpretation of the original complaint or its failure to instruct James
regarding the need to amend his complaint was cured, leaving the superior court's
decision not to grant leave to amend as the only potential source of error.
In rejecting James's first amended complaint, the superior court reasoned
only that it could not add James back in after it had "already dismissed him out."
11 James raised an additional argument in his points on appeal related to a
discovery dispute with GEICO. But James did not discuss the issue in his brief on
appeal. Therefore the issue is forfeited despite GEICO's briefing on the issue and
James's response in his reply brief. See Lyman v. State, 824 P.2d 703, 706 (Alaska
1992) ("Generally, points on appeal not briefed are considered abandoned.").
12
Civil Rule 56(c) provides in part that "[t]here must . . . be served and filed
with each motion a memorandum showing that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law."
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13
Ordinarily, under Alaska Civil Rule 15(a), leave to amend "shall be freely given." We
have elaborated on this rule, recognizing that absent an "apparent or declared reason -
such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc. -
14
Although the superior
the leave sought should, as the rules require, be freely given."
court did not undertake any analysis of whether leave to amend should have been freely
given or whether there was basis to deny leave under Rule 15(a), we conclude that the
proposed amendment to the complaint was futile and would not have survived a motion
for summary judgment.15
Even if the proposed amended complaint had been adopted, James's
contractual interference claim would have failed as a matter of law because James did
not allege that he was a direct party to any of the contracts with Frank's healthcare
providers, and he was not a third-party beneficiary to those contracts as a matter of law.
"In determining whether a third party is an intended beneficiary of a contract, we refer
16
We look to the intent of the
to the Restatement (Second) of Contracts [§ 302]."
13 Alaska R. Civ. P. 15(a).
14 Miller v. Safeway, Inc. , 102 P.3d 282, 294 (Alaska 2004) (quoting Betz v.
Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987)) (internal quotation
marks omitted).
15
See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 177 (Alaska
2010) ("We consider with independent judgment whether a proposed amended complaint
could survive dismissal; if we conclude that it could not, we will hold that the superior
court did not abuse its discretion by denying the motion for leave to amend.").
16 Rathke v. Corr. Corp. of Am., Inc. , 153 P.3d 303, 310 (Alaska 2007). The
Restatement (Second) of Contracts § 302 provides:
(continued...)
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promisee, in this case Frank Bush, "to give the beneficiary the benefit of the promised
17
performance." In doing so, we look for objective manifestations of intent rather than
18
subjective motives. Applying this standard, the proposed amended complaint would
not have survived summary judgment because it did not allege that Frank intended for
his contracts with health care providers to benefit James. Rather, the proposed amended
complaint states only that James gave money to Frank with the intent that Frank use it
to obtain medical care. Moreover, the benefit of the promised performance - medical
care - did not run to James. It was directed entirely to Frank, the patient undergoing
treatment. Because the proposed amendment did not state a valid claim for relief, it was
futile and we affirm the superior court's refusal to permit James to amend his complaint.
B. The Superior Court's Award of Attorney's Fees To GEICO
Following James's dismissal and GEICO's settlement with the remaining
plaintiffs, GEICO sought and obtained entry of final judgment against James. GEICO
16(...continued)
(1) Unless otherwise agreed between promisor and promisee,
a beneficiary of a promise is an intended beneficiary if
recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an
obligation of the promisee to pay money to the
beneficiary; or
(b) the circumstances indicate that the promisee
intends to give the beneficiary the benefit of the
promised performance.
17 RESTATEMENT (SECOND) OF CONTRACTS § 302(1)(b) (1979).
18 Rathke , 153 P.3d at 310.
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then moved for attorney's fees as the prevailing party pursuant to Alaska Civil Rule 82.19
James did not respond to the motion in superior court. Instead he filed points on appeal
in this court indicating that the superior court had "not permitted him to file any sort of
responsive pleadings." James's belief that he was not permitted to file responsive
pleadings may have derived from a combination of factors including his dismissal from
the case, the removal of his name from the case caption, and the superior court's
instruction to cease filing "pleadings on behalf of other parties." Following GEICO's
renewed request for a ruling on its motion for attorney's fees, and without receiving a
response from James, the superior court granted an award of $3,533.68, or 20% of the
20
James argues on
reasonable fees incurred while James was still a party to the case.
appeal that the superior court lacked authority to remove his name from the case caption
and abused its discretion in granting GEICO's motion for attorney's fees while
simultaneously prohibiting him from filing a response.
We need not address the superior court's authority to amend the caption
because that question relates primarily to James's argument that he was
unconstitutionally denied access to the court and that he was unaware that he was
allowed to file an opposition to GEICO's motion for attorney's fees. We vacate the
attorney's fee award on the ground that the superior court erred by failing to inform
James that he was permitted to file a response to GEICO's motion despite the court's
earlier direction that James not file further pleadings. Thus we do not address the
superior court's unusual decision to remove James's name from the caption.
19 Alaska R. Civ. P. 82(a) ("[T]he prevailing party in a civil case shall be
awarded attorney's fees calculated under this rule.").
20 Id. 82(b)(2) ("In cases in which the prevailing party recovers no money
judgment, the court shall . . . award the prevailing party in a case resolved without trial
20 percent of its actual attorney's fees which were necessarily incurred.").
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Turning to the superior court's duty to self-represented litigants, trial court
judges must strike an appropriate balance between their role as a neutral and impartial
21 22
decision maker and their affirmative duty to advise self-represented litigants. We first
addressed this balancing act in Breck v. Ulmer , which established a duty to "inform a pro
se litigant of the proper procedure for the action he or she is obviously attempting to
23 24
accomplish." Since Breck , we have delineated the contours of this obligation. We
have also acknowledged that while the rules of court "may be models of clarity to one
25
Thus while "open-ended
schooled in the law, a pro se litigant might not find them so."
participation by the court [that] would be difficult to contain" is outside the scope of the
superior court's duty to self-represented litigants,26 where a self-represented litigant is
obviously attempting to accomplish a discrete action and his procedural failing is the
result of "a lack of familiarity with the rules rather than gross neglect or lack of good
21 See Bauman v. State, Div. of Family & Youth Servs. , 768 P.2d 1097, 1099
(Alaska 1989) ("To require a judge to instruct a pro se litigant as to each step in litigating
a claim would compromise the court's impartiality in deciding the case by forcing the
judge to act as an advocate for one side.").
22 See Breck v. Ulmer, 745 P.2d 66, 74 (Alaska 1987).
23 Id.
24
For instance, "the trial court ha[s] no obligation to be lenient with a pro se
litigant who ha[s] made 'no effort to cooperate with the trial court or to request assistance
in complying with its orders.' " Genaro v. Municipality of Anchorage, 76 P.3d 844, 846
(Alaska 2003) (quoting Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000)).
25 Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998).
26 Bauman , 768 P.2d at 1099. We have also noted that open-ended
participation by the court would tax limited judicial resources and impair judicial
efficiency. See Greenway v. Heathcott, 294 P.3d 1056, 1072 (Alaska 2013).
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----------------------- Page 15-----------------------
27
faith," the superior court retains an obligation to inform that litigant of the proper
28
procedure for that action. Although the superior court has no general duty to inform
29
here
a self-represented litigant of the opportunity or need to file a responsive pleading,
a duty to inform James of his ability to file a response to GEICO's motion arose from the
superior court's actions in removing James's name from the case caption and instructing
James to cease filing pleadings on behalf of other parties once he had been dismissed and
his name was no longer listed in the caption as a party to the case.
We emphasize that this holding is limited to the unique facts presented.
The dismissal of James from the case, the removal of his name from the case caption, and
most importantly the instruction to cease filing "pleadings on behalf of other parties" left
James with the belief that he was not permitted to file responsive pleadings in the matter
arising out of his son's injuries. The superior court was on notice of this
misunderstanding. In his response to GEICO and the Luke defendants' motions for
summary judgment James expressed his belief that the removal of his name from the case
caption, and the prohibition against filing pleadings, would impermissibly curtail his
access to the court system and right to an appeal. James's misunderstanding reflects "a
30
Such
lack of familiarity with the rules rather than gross neglect or lack of good faith."
a lack of familiarity, particularly here where James had actively engaged with the
27 Wagner v. Wagner, 299 P.3d 170, 174 (Alaska 2013) (quoting Kaiser v.
Sakata, 40 P.3d 800, 803 (Alaska 2002)) (internal quotation marks omitted).
28 See Breck, 745 P.2d at 74.
29 See Capolicchio v. Levy, 194 P.3d 373, 379 (Alaska 2008) (declining to
require a trial court judge to inform a pro se litigant of the need to file an opposition to
a motion for summary judgment).
30
Wagner, 299 P.3d at 174 (quoting Kaiser , 40 P.3d at 803) (internal
quotation marks omitted).
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litigation process up to the point of being instructed to cease filing pleadings, required
the superior court to inform James of his ability to respond to the motion for attorney's
fees. This error is not harmless. Because the superior court failed to clarify that James
was permitted to respond, he was not afforded an opportunity to dispute the
reasonableness of the fees or the reasonableness of using the total fees incurred against
all of the plaintiffs as the base for applying the Rule 82 percentage for an award against
him, or to argue for a downward deviation from the default 20% fee award at the
31 To grant an award without
discretion of the superior court under Civil Rule 82(b)(3).
notice of the opportunity to respond to the motion for attorney's fees requires that we
vacate the superior court's order granting an award of attorney's fees to GEICO and
remand to provide James leave to file a response to GEICO's attorney's fees motion.
V. CONCLUSION
We AFFIRM the grant of summary judgment and AFFIRM the superior
court's order denying leave to amend because the proposed amendment to the complaint
was futile. We VACATE the fee award and REMAND to the superior court to afford
James Bush an opportunity to respond to the insurer's motion for reasonable attorney's
fees.
31 Civil Rule 82(b)(3) provides discretion to the superior court to deviate
downward from the 20% default award based on factors such as "the extent to which a
given fee award may be so onerous to the non-prevailing party that it would deter
similarly situated litigants from the voluntary use of the courts," "the extent to which the
fees incurred by the prevailing party suggest that they had been influenced by
considerations apart from the case at bar," and "other equitable factors deemed relevant."
-16- 6980
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