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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Luther v. Lander (5/13/2016) sp-7103

Luther v. Lander (5/13/2016) sp-7103

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

BONNIE  L.  LUTHER,                                              )  

                                                                 )          Supreme  Court  No.  S-15588  

                                 Appellant,                      )  


                                                                 )          Superior Court No. 3AN-12-10439 CI  

           v.                                                    )  


                                                                 )          O P I N I O N  


STEVIE W. LANDER,                                                )  


                                                                 )          No. 7103 - May 13, 2016  

                                 Appellee.                       )  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Anchorage, Paul E. Olson, Judge.  


                      Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C.,  


                      Anchorage,  for  Appellant.                    Kimberlee  A.  Colbo,  Hughes  


                      Gorski Seedorf Odsen & Tervooren, LLC, Anchorage, for  



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


                      Justices. [Winfree, Justice, not participating.]  


                      FABE, Justice.  



                      In November 2010 Stevie Lander was unable to complete a right turn on  


an icy road, and her vehicle slid into a car driven by Bonnie Luther.  Although Luther  


reported no injuries at the scene of the accident, that evening she went to the emergency  


room for head and neck pain, and within weeks she began to suffer from lower back pain  


that prevented her from returning to her job as a flight attendant.  Luther attributed her  

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


pain  to  the  accident  and  sued  Lander  for  negligence  in  2012.                                  Lander  admitted  


negligence and made an offer of judgment, which Luther did not accept.   The case  


proceeded to trial in 2014, and the jury awarded Luther a total of $3,259 for past medical  


expenses, past wage and benefit loss, and past non-economic losses.  


                    The superior court granted attorney's fees to Lander under Alaska Rule of  


Civil Procedure 68(b) and denied Luther's motion for a new trial.   Luther appeals,  


arguing that the superior court erred by denying her a new trial based on inadequate  


damages and by excluding evidence of the amount of payments for medical treatment  


made by Luther's insurer.  She also challenges the superior court's decision to grant  


attorney's fees based on billing records that were filed under seal.  We conclude that it  


was error to exclude evidence of payments made for Luther's medical treatment by her  


insurer.  But because that error was harmless, we affirm the final judgment entered by  


the superior court.  



          A.        Facts  


                    In  November  2010  Bonnie  Luther  was  stopped  at  a  red  traffic  light,  


traveling southbound on Spenard Road in Anchorage.   Stevie Lander was traveling  

westbound on Northern Lights Boulevard and attempted to make a right turn.  Lander  


was unable to complete the turn on the icy road, and her SUV slid into the front driver's  


side of Luther's car. Photographic evidence revealed that the accident caused only minor  


damage to Luther's car:  a small dent above the front driver's side tire.  And there was  


no damage to Lander's SUV.  The airbags did not deploy in either vehicle.  


                    At the accident scene, Luther told a police offer that she was "fine" and did  


not require medical attention. But she went to the emergency room that evening because  


her head hurt and her neck was feeling "tight."  At the hospital she was diagnosed with  


a cervical strain, prescribed pain medication, and discharged.  Luther did not complain  

                                                               -2-                                                        7103

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


of lower back pain on the day of the accident, and no diagnosis was made regarding her  


back. Luther testified that the symptoms she experienced immediately after the accident  


- head pain and tightness in her neck and shoulder - subsided within a few weeks to  


a month.  


                     Luther had worked as a flight attendant for Alaska Airlines since 2007, and  


though she was not working at the time of the accident, as she was recovering from  


recent surgery, she was scheduled to return to work in December 2010.  But two days  


after the accident, Luther was flying as a passenger on a flight to Hawaii when she first  


experienced pain in her back and into her left buttock. When she arrived home in Alaska  


near the end of November, Luther was diagnosed as "likely ha[ving] a muscle and  


ligament strain of her lower back . . . [and having possibly] wrenched the sacroiliac  


joint."      An  x-ray  showed  "no  evidence  of  fracture,"  and  Luther  was  referred  to  


Orthopedic Physicians Anchorage. Sharon Sturley, a physician assistant at the practice,  


found no "acute fracture or dislocation" and noted that the x-rays showed evidence of  


"mild degenerative disc and joint disease."  


                     Luther continued to experience lower back pain and to see Sturley for  


monthly visits through November 2011 with little notable change in her condition. In  


April 2011, an orthopedic specialist in the same practice as Sturley diagnosed Luther  


with a "small annular tear and a tiny disc protrusion" but noted that Luther's "bigger  


symptoms" were due to trochanteric bursitis and irritation of her sacroiliac joint.  This  


doctor  did  not  comment  on  the  cause  of  either  condition  and  suggested  a  steroid  


injection, which  Luther  declined.                     Between November  2011 and  July  2012  Luther  


worked for the State of Alaska in Juneau, where she continued to see an orthopedic  


specialist.        She  was  again  diagnosed  as  having  "likely  [sacroiliac]  joint  pain"  and  


"bilateral trochanteric bursitis." The doctor did not state that either affliction was caused  


by the car accident, and Luther again declined a recommended steroid injection in favor  

                                                                -3-                                                         7103

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


of continued  physical therapy.   Throughout her treatment, Luther went to physical  


therapy and received acupuncture treatment, though her attendance at physical therapy  


was somewhat irregular.  Both Sturley and the orthopedic specialist in Juneau provided  


Luther with monthly "work status reports" to be submitted to Alaska Airlines so that  


Luther could remain employed while on medical leave.  


                    In July 2012 Luther returned to Anchorage and continued her work for the  


State.      Luther  was  evaluated  by  James  Glenn,  another  physician  assistant  in  the  


orthopedic  practice,  in  December  2012.                         Glenn  reported  that  he  was  "somewhat  


perplexed" as to why Luther was still pursuing treatment two years after the accident  


without seeking "more aggressive" measures.  He suggested various treatment options  


including injections, a new MRI, and x-rays, and he noted that Luther might consider a  


disc replacement in order to return to work as a flight attendant.   Glenn refused to  


provide Luther with a work status report to indicate that Luther had a "full disability"  


that prevented her from returning to work.  After her appointment with Glenn, Luther  


appears to have stopped seeking medical treatment, and in December 2012 she resigned  


from her position with Alaska Airlines.  


          B.        Proceedings  


                    In October 2012 Luther filed a complaint in the superior court alleging that  


Lander  was  negligent  and  that  her  negligence  had  caused  Luther  to  incur  injuries  


resulting in ongoing medical expenses, lost wages, and pain and suffering.   Lander  


admitted negligence and in December 2013 served an offer of judgment for $28,500 plus  


prejudgment  interest,  allowable  Alaska  Civil  Rule  79  costs,  and  Alaska  Civil  


Rule 82(b)(1) attorney's fees.  Luther did not accept the offer, and the case proceeded  


to trial in March 2014.  


                    At trial, Luther testified that the accident had left her unable to perform her  


duties as a flight attendant, but she did not call any of her own doctors or other expert  

                                                               -4-                                                         7103

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


medical witnesses. Instead, Luther relied on her own testimony about her treatment and  


on her medical records.  In support of her claim for damages for past medical expenses,  


Luther introduced evidence of the treatment she received after the accident. Some of the  

evidence she sought to introduce revealed that Luther's insurer, GEICO, paid some of  


Luther's medical expenses after the accident.   The superior  court granted Lander's  


request that the evidence be excluded.  The superior court also excluded all evidence of  


the costs of the various treatment charges paid for by GEICO. But Luther was permitted  


to introduce evidence of the treatments themselves.  


                    Luther  testified  that  her  total  unpaid  medical  expenses  amounted  to  


$6,745.86.  Lander, relying on the report and testimony of Dr. Bald, an independent  


medical examiner retained by Lander, asked the jury only to award Luther $809 for past  


medical costs, theamount Luther paid for treatmentincurred withOrthopedicPhysicians  


Anchorage in November 2011 and her acupuncturist in June 2011.  Dr. Bald reported  


that Luther "did not incur anything more significant than a muscular strain-type injury"  


as a result of the car accident and that given the delay in the onset of symptoms, the  


accident could not have injured her sacroiliac joint or her lumbar spine.  While Dr. Bald  


believed that the treatment Luther received during the year following the accident was  


"reasonable,  appropriate,  and  necessary  for  treatment  of  injuries  incurred  in  [the]  


accident,"  he  concluded  that  it  was  improbable  that  Luther's  persistent  pain  was  


attributable to the accident.  He also found that by the time he examined Luther in 2013,  


she was "doing objectively very well" and should have been able to return to work, and  


that Luther's pre-accident surgery and inconsistent attendance at physical therapy could  


have slowed her recovery.  


                    Luther also claimed lost wages and benefits of more than $50,000 for the  


time between the accident and November 2011.  She testified that her base pay for the  


relevant time period would have been $28,872.  But according to her W-2s, she made  

                                                               -5-                                                         7103

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

 considerably less than that in the years preceding the accident because she was subject                                                                                                                                                                                                                                                                                                                                                                  

to furloughs in 2009 and 2010 and was on medical leave from July 2010 through the                                                                                                                                                                                                                                                                                                                                                                                               

time of the accident.                                                                                               Luther also claimed losses for various benefits she received as a                                                                                                                                                                                                                                                                                                      

 flight attendant, including additional pay, an annual bonus, andflight benefits                                                                                                                                                                                                                                                                                                                                                      for herself,   

her friends, and her family. Acknowledging that it was difficult to value those additional                                                                                                                                                                                                                                                                                                                                                

benefits accurately, Luther estimated their value at a total of $15,100.  Luther claimed  

 $7,150.52 in payments she made for COBRA medical insurance and also requested                                                                                                                                                                                                                                                                                                                                                            

 damages for non-economic losses.                                                                                                                                                                  Luther did not claim future economic losses.                                                                                                                                                                            

                                                                           Lander argued that the maximum Luther should be awarded for lost wages                                                                                                                                                                                                                                                                                                              

was $9,000, the average of Luther's annual earnings in 2008, 2009, and 2010.                                                                                                                                                                                                                                                                                                                                                                                        And  

Lander asserted that, because Luther had not worked enough hours in 2010 to qualify for                                                                                                                                                                                                                                                                                                                                                                                           

medical insurance coverage from Alaska Airlines, she had already been paying for                                                                                                                                                                                                                                                                                                                                                                                               

 COBRA at the time of the accident.                                                                                                                                                                           Lander argued that even if the accident had not                                                                                                                                                                                                                  

 occurred and Luther had returned to her job as a flight attendant in December 2010 as   

planned, she would have to have continued paying for her own insurance until she had                                                                                                                                                                                                                                                                                                                                                                                         

worked long enough to qualify for coverage.                                                                                                                                                        

                                                                           At the conclusion of the trial, the jury returned a verdict awarding Luther                                                                                                                                                                                                                                                                                                      

 $809 for past medical expenses, $1,700 for past wage and benefit loss, $750 for past                                                                                                                                                                                                                                                                                                                                                                                      

non-economic losses, and no amount for future non-economic losses, for a total award                                                                                                                                                                                                                                                                                                                                                                           

 of    $3,259.       Lander    moved    for    attorney's    fees    under    Alaska    Rule    of    Civil  

                                                                                                             1  and filed her billing records "under seal."                                                                                                                                                                                                                This designation was  

Procedure 68(b)(2)                                                                                                                                                                                                                                                                                                                                                                                                                                                         

later changed to "confidential."  


                                      1                                    Rule 68(b) provides:                                                                                                     "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 from the date the offer was made."                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                          -6-                                                                                                                                                                                                                           7103

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

                          Luther moved for a new trial under Alaska Rule of Civil Procedure 59(a),                                                                     2  


arguing that the jury's verdict was "manifestly unfair . . . under the evidence produced  


and the circumstances of the case."  She argued that the jury's awards for past medical  


expenses and lost wages and benefits were insufficient, and she challenged the jury's  


award for pain, suffering, and loss of enjoyment of life as "ridiculously small."  Luther  


also  contended  that  the  jury  should  have  awarded  her  damages  for  future  loss  of  


enjoyment of life and the cost of COBRA insurance.  


                          Thesuperior court awardedLander $8,590.75inattorney'sfees and entered  


final judgment, offsetting Luther's damages award and prejudgment interest such that  



Luther owed Lander a total of $6,494.17. 

                          Luther appeals, arguing that the superior court erred by (1) denying her  


request for a new trial on the ground of inadequate damages, (2) excluding evidence of  


$10,000 in medical expenses paid by Luther's insurer, GEICO, and (3) allowing Lander  


to file her billing records under seal.  




                          "We  review  the  superior  court's  evidentiary  rulings  for  abuse  of  


discretion."4                "Under Alaska Civil Rule 61, errors in the admission or exclusion of  


             2            Rule 59(a) provides:                        "A new trial may be granted to all or any of the                                             

parties and on all or part of the issues in an action in which there has been a trial by jury                                                                    

or in an action tried without a jury, if required in the interest of justice."                                                                

             3            On the same day that the superior court entered final judgment, the court  


also inadvertently granted Luther's motion for a new trial.  Upon receipt of the order  


granting the new trial, Lander filed a motion for reconsideration. Recognizing that it had  


not intended to grant the motion, the superior court withdrew its order granting a new  


trial on damages and subsequently denied the motion.  


             4            Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) (citing Bierria v.  



                                                                                  -7-                                                                          7103

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

evidence are grounds for reversal                                  only  if failure to reverse 'appears to [this] court                                


inconsistent with substantial justice.' "                                                                                                               

                                                                          "[W]e must disregard harmless errors that have  



no substantial effect on the rights of parties or on the outcome of the case." 


                         "A 'refusal to grant a new trial is reviewed under an abuse of discretion  


standard'; accordingly, we review the record 'in the light most favorable to the non- 

                               7   "An abuse of discretion exists when evidence to support the verdict  


moving party.' " 

was completely lacking or was so slight and unconvincing as to make the verdict plainly  


unreasonable and unjust."8                           "We disturb the trial court's exercise of discretion only 'in  


the most exceptional circumstances to prevent a miscarriage of justice' "9 and will not  

disturb a verdict "unless the evidence . . . is so clearly to the contrary that reasonable  


persons could not differ in their judgment."10  




Dickinson Mfg. Co., 36 P.3d 654, 657 (Alaska 2001)).  



                         Loncar v. Gray, 28 P.3d 928, 930 (Alaska 2001) (alteration in original).  

             6           Pedersen v. Blythe                 , 292 P.3d 182, 184 (Alaska 2012) (first citing Alaska                                  

R.  Civ. P. 61; then citing                      Coulson v. Marsh & McLennan, Inc.                                    , 973 P.2d 1142, 1146     

(Alaska 1999)).                

             7           Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) (quoting Bierria, 36 P.3d  


at 656).  


             8           Id. (quoting Bierria, 36 P.3d at 656).  


             9           Id. (quoting Bierria, 36 P.3d at 656).  


             10          Pralle v. Milwicz, 324 P.3d 286, 290 (Alaska 2014) (omission in original)  


(quoting Alaska Democratic Party v. Rice, 934 P.2d 1313, 1320 n.10 (Alaska 1997)).  


                                                                              -8-                                                                      7103

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

                        "We review the decision to award attorney's fees for abuse of discretion                                          

and [will] overturn it only where the award is manifestly unreasonable."                                                           11  "However,  


'[t]he independent standard of review . . . applies to considering whether the trial court  



properly applied the law when awarding attorney's fees.' " 

IV.	        DISCUSSION  


            A.	         The Superior Court's Exclusion Of Evidence Of Luther's Treatment  


                        Expenses Was Error, But The Error Was Harmless.  


                        1.	         Evidence  of  the  full  cost  of  Luther's  medical  treatment  is  


                                    relevant to a determination of the severity of her injuries.  


                        Luther argues that the superior court erred by excluding evidence of the  


cost of her medical treatment paid by GEICO,  Luther's insurer.   Lander sought to  


exclude the evidence of Luther's medical bills on the ground that our decision in Ruggles  


v. Grow would prevent Luther from recovering any portion of the medical expenses paid  



by GEICO.               Luther countered that excluding the amount of the expenses would mislead  


the jury into believing that Luther's injuries were less serious because she had incurred  


few medical expenses. To address that problem, Luther requested a jury instruction that  


would inform jurors that her actual medical expenses exceeded those claimed at trial by  


$10,000, the amount of medical expenses paid by her own insurer.  


                        The superior court ruled on the issue from the bench at the beginning of the  


trial, granting Lander's request to exclude the evidence.  The superior court not only  

            11          Alaska Fur Gallery,                    Inc.   v.   First Nat'l            Bank Alaska             ,   345   P.3d   76,   84  

(Alaska 2015) (alteration in original) (quoting                                      Williams v. GEICO Cas. Co.                          , 301 P.3d     

 1220, 1225 (Alaska 2013)).                         

            12          Bakerv.Ryan Air, 345 P.3d 101, 106 (Alaska2015)(alterations in original)  


(quoting DeNardo v. Cutler, 167 P.3d 674, 677 (Alaska 2007)).  


            13          See Ruggles ex rel. Estate of Mayer v. Grow, 984 P.2d 509, 512 (Alaska  



                                                                           -9-	                                                                   7103

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

prohibited evidence of the source of the payments, but also prevented any evidence of   

the amounts charged for Luther's various treatments.                                                                                                                                                                      For instance, one of Luther's                                                          

 exhibits was a chronological treatment history prepared by her orthopedic specialist, and                                                                                                                                                                                                                                            

the superior court's ruling required redaction of any treatment payments shown in that                                                                                                                                                                                                                                               

 exhibit   that   were   covered   by   GEICO.     Luther   argued   for  "either   an   exhibit   or   an  

 instruction demonstrating what the costs were for each treatment" and suggested that                                                                                                                                                                                                                                               

Luther's inability to recover those expenses could be explained in a jury instruction. But                                                                                                                                                                                                                                           

the trial court confirmed that "payments by GEICO, costs, the amount of money paid by                                                                                                                                                                                                                                                     

 GEICO, billings paid by GEICO, mention of insurance, all that is disallowed."                                                                                                                                                                                     

                                                     The superior court did not elaborate on the basis for excluding even the                                                                                                                                                                                                          

 amounts of the treatment costs, noting only that "based upon the previous rulings [the                                                                                                                                                                                                                                             

 court had] already made, [the amount of the GEICO payments] should be taken out."                                                                                                                                                                                                                                             

Presumably, the superior court was mindful of the rule we set out in                                                                                                                                                                                                          Ruggles v. Grow,  

where we held that once an insurer requests that a plaintiff "not . . . present its claim for                                                                                                                                                                                                                                           

medical expenses," the plaintiff "los[es] the right to present the claim" because "the                                                                                                                                                                                                                                            

                                                                                                                                                                 14   Insurers may therefore seek reimbursement  

 subrogated claim belongs to the insurer."                                                                                                                                                                                                                                              

 in one of two ways:  The insurer can allow a plaintiff to pursue the subrogated claim  


 along with the plaintiff's own claim and then seek reimbursement from the plaintiff, or  


the insurer can request that the plaintiff omit the subrogated claim, allowing the insurer  


to seek reimbursement in separate litigation.15  


                                                     In this case, there is no question that GEICO requested that Luther refrain  


 from  including  the  insurer's  medical-payment  claim  in  her  lawsuit  and  that  under  


Ruggles, Luther therefore could not recover any portion of the $10,000 paid by GEICO.  


                           14                       Id.   

                           15                       Id.   

                                                                                                                                                                  -10-                                                                                                                                                                            7103  

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

But while Luther recognizes that she could not have recovered any of the $10,000, she                                                                                                                                                               

contends that exclusion of the evidence of the cost of her treatment was prejudicial                                                                                                                                         

because it "appeared [to the jury] that [Luther] only incurred medical exp[e]nses in the                                                                                                                                                             

amount of $809," the amount she paid out of pocket. Lander argues that evidence of the                                                                                                                                                               

cost of Luther's treatment paid by GEICO was "irrelevant, misleading, and unfairly                                                                                                                                                    

prejudicial."  But Luther maintains that the cost incurred for treatment was relevant to                                                      

the   jury's   determination   of   the   severity   of   Luther's   injuries   and   that   without   that  

information, the jury could have assumed that "the injuries must have been minor."                                                                                                                                            

                                       The definition of relevant evidence under Alaska Rule of Evidence 401 is                                                                                                                                          

                   16      For evidence to be considered relevant, it "need not be direct or conclusive; it  


need only have some tendency to advance the proposition for which it is offered."17   The  


amount expended on medical treatment after an accident may bear on the severity of the  


plaintiff's injuries. Just as photographic evidence and testimony about thelack ofserious  


damage to Luther's and Lander's vehicles was relevant as potentially reflecting the  


severity of the accident, so too is the amount of medical payments.  It is then for the jury  


to determine the weight to be given that evidence.  


                                       Courts in other jurisdictions have addressed this issue and concluded that  


evidence of medical expenses is admissible when it is relevant to the severity of an  


injury.  For example, the Georgia Supreme Court has held that "the amount of medical  


bills may be admissible on a claim of pain and suffering to show the seriousness of the  


                    16                 Marsingillv.                          O'Malley, 128 P.3d 151,                                                158 (Alaska2006) (citing                                                   Van Meter   

v.  State, 743 P.2d 385, 392 (Alaska App. 1987)).                                                                                                 

                    17                 Id. (quoting McLaughlin v. State, 818 P.2d 683, 687 (Alaska App. 1991)).  


                                                                                                                         -11-                                                                                                                  7103

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


injury."             This is true even in cases in which "th[e] expenses should not have been                                                                  


awarded as damages."                                                                                                                                             

                                                Similarly, the Virginia Supreme Court concluded that "the trial  


court erred in excluding [a plaintiff's] medical bills" when the plaintiff "argued that the  


medical bills were offered solely to show that he was treated for physical injuries which,  

                                                                                                                                               20  That court  

he contends, support[] his allegation that he endured pain and suffering." 

recognized that the plaintiff "does not seek recovery for the amount of the medical bills;  


rather, he seeks recovery for the pain and suffering."21  And the Montana Supreme Court  


reversed the trial court's exclusion of the amount charged for medical treatment, holding  


that "medical bills received by a tort victim can be relevant evidence of issues such as  


the nature and severity of the injuries."22  A number of federal courts have also permitted  


evidence  of  the  amount  of  medical  expenses  when  introduced  for  the  purpose  of  



demonstrating the severity of an injury.                                          


             18           Warren v. Ballard                    , 467 S.E.2d 891, 893 (Ga. 1996) (citing                                           Melaver v.   

Garis, 138 S.E.2d 435, 436 (Ga. App. 1964)) (holding that a doctor's bill was admissible                                                            

as illustrative of pain and suffering).            

             19           College Park Cabs, Inc. v. Justus, 488 S.E.2d 88, 89 (Ga. App.  1997).  


             20           Parker v. Elco Elevator Corp., 462 S.E.2d 98, 100 (Va. 1995).  


             21           Id.  

             22           Meek v. Mont. Eighth Jud. Dist. Ct., 349 P.3d 493, 495 (Mont. 2015) (citing  


Chapman v. Mazda Motor of Am. , 7 F. Supp. 2d 1123, 1125 (D. Mont. 1998)).  


             23           See, e.g., Hannah v. Haskins, 612 F.2d 373, 375 (8th Cir. 1980) (noting that  


while  "[p]ayments received  from collateral  sources  are not  generally  allowed to  be  


introduced  into  evidence  for  purposes  of  reducing  a  damage  award  or  showing  


wrongdoing[,]  .  .  .  [e]vidence relating  to  such  payments  .  .  .  has  been  held  to  be  


admissible  for  the  purpose  of  establishing  the  extent  of  injury")  (internal  citations  


omitted); Brice v. Nat'l R.R. Passenger  Corp., 644 F. Supp. 220, 224 (D. Md.  1987)  


(holding that the  amount of medical  expenses incurred by  a plaintiff  in a workplace  



                                                                                -12-                                                                           7103

----------------------- Page 13-----------------------

                           We   have   not   directly   considered   the   question   whether   the   amount   of  

medical payments is admissible for the purpose of demonstrating the severity of an                                                                                       

injury. But we pointed out in                             Ruggles v. Grow                   that although the superior court ruled that                                

the plaintiff's medical expenses must be deducted from her recovery, it nevertheless                                                                 

                                                                                       24   Though the admissibility of that evidence  

allowed evidence of the treatment expenses.                                                                                                                  

was not at issue on appeal, we recognized that the payments had been admitted "as  


evidence bearing on the severity of [the plaintiff's] injury."25  


                           In Ruggles we went on to hold that a plaintiff may not bring a claim that the  


insurer sought to control.26   But to exclude all evidence of medical costs when an insurer  


has made payments and subsequently requests to control the claim would create an  


unintended dichotomy.  Plaintiffs involved in litigation in which their insurers do not  


make  such  a  request  would  be  able  to  introduce  evidence  of  all  medical  expenses  


included in their claims:  "If the insurer does not object, the insured may include the  


                                                                     27   But in cases in which an insurer "actively requests  

subrogated claim in its claim . . . ."                                                                                                                        


                                                                                                    28 a plaintiff would be prohibited from  

that the plaintiff not pursueher subrogation claim,"                                                                                                                 



accident  was  relevant  to  "the  determination  of  the  full  extent  and  nature"  of  the  plaintiff's


             24            Ruggles  ex  rel.  Estate  of  Mayer  v.  Grow,  984  P.2d  509,  511  (Alaska  1999).  

             25            Id.   

             26            Id.  at  512.  

             27            Id.  

             28            O'Donnell  v.  Johnson,  209  P.3d  128,  135  (Alaska  2009)  (holding  that  the  

common  fund  doctrine,  which  allows  a  litigant  or  lawyer  who  recovers  a  common  fund  

to  seek  reasonable  attorney's  fees  from  the  entire  fund,  does  not  apply  when  an  insurer  


                                                                                   -13-                                                                             7103

----------------------- Page 14-----------------------

presenting   evidence   of   the   expense   of   medical  treatment.     Ruggles   should   not   be  

interpreted to produce such an anomalous result.                                                                                                                                                              

                                                        Because evidence of the amount of medical bills is relevant to the severity                                                                                                                                                                                                   

of a plaintiff's injury, we conclude that such evidence cannot be excluded solely on the                                                                                                                                                                                                                                                                  

ground that the plaintiff cannot recover the money.                                                                                                                                                                 Thus, our decision in                                                                      Ruggles  does  

not preclude the introduction of evidence of the amounts of insurance payments for the                                                                                                                                                                                                                                                                     

purpose of demonstrating the severity of an injury.                                                                                                                                                                   

                                                        2.	                        The probative value of the evidence of Luther's treatment costs                                                                                                                                                                                                

                                                                                   is not outweighed by any danger of prejudice.                                                                                                                 

                                                        Given that Luther's evidence of the amounts charged for medical treatment                                                                                                                                                                                                

was relevant, the next step in the analysis is whether the evidence of the amount of the                                                                                                                                                                                                                                                                  

payments should have been "excluded [because] its probative value [was] 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                                                                                                                                                                                                                                    

                                            29            Lander argues that to the extent that evidence of the cost of Luther's  


treatments may have had "minimal probative value," that value was "far outweighed" by  


its prejudicial effect and tendency to confuse and mislead the jury.  But Lander does not  


explain why admission of the evidence would have been prejudicial to her.  Lander was  


free to argue at trial that the treatments Luther received were unnecessary or were not  


attributable to the accident; indeed, she did precisely that.  




actively requests that a plaintiff refrain from pursuing a subrogated claim).  

                            29                          Alaska R. Evid. 403. We have observed that "this balancing test measures                                                                                                                                                                                                 

the probative value of the evidence against its deleterious effects. Where the prejudicial                                                                                                                                                                                                                                 

effect is 'demonstrably greater,' the evidence must be excluded."   Conley v. Alaska  


 Commc'ns Sys. Holdings, Inc.                                                                                              , 323 P.3d 1131, 1143 n.3 (Alaska 2014) (emphasis added)                                                                                                                                                         

(quoting Commentary Alaska E.R. 403).  


                                                                                                                                                                            -14-	                                                                                                                                                                  7103

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                       In   support   of   her   argument   that   the   evidence   could   have   misled   and  


confused the jury, Lander relies on our decision in                                Loncar v. Gray           .                              

                                                                                                                 The plaintiff in that  


personal injury case sought to introduce evidence of her own Medicare and Medicaid  


payments in part because she claimed the evidence was relevant to her damages because  

                                                                                               31  The superior court excluded  


 she suffered humiliation fromaccepting public assistance. 

the evidence of her coverage, noting that while the plaintiff could not introduce evidence  


of Medicaid payments, she could "testify about her medical condition, . . . her medical  


bills[,] . . . her difficulty in obtaining medical care, . . . her bills and the amount that has  


been run up without mentioning insurance."32                                  We affirmed, reasoning that evidence of  


Medicaid payments would have "opened [the door] to evidence from both sides on the  


larger issue of insurance payments - and this potentially very large body of evidence  



would 'create more confusion of the issues than . . . any probative value it may have.' "                                                          


But  here,  unlike  the  plaintiff  in  Loncar,  Luther  was  prohibited  from  entering  into  


evidence even the amounts charged for her medical treatment. Lander's concerns about  


confusing the jury could easily have been alleviated by permitting evidence regarding  


the amounts of the medical bills while excluding their payment source.  


                       The superior court could have taken several approaches to ensure that the  


jury did not erroneously award Luther any portion of the subrogated claim.  First, the  


 superior court could have instructed the jury not to award damages for the medical  


expenses that had already been paid by Luther's insurer.   This was the remedy that  


Luther suggested to the superior court.  


           30          28 P.3d 928 (Alaska 2001).          



                      Id. at 933.  



                      Id. (alteration omitted) (emphases added).  



                      Id. (omission in original).  

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                                  Second,   the   superior  court   could   have   instructed   jurors   not   to   award  

damages   for   treatment   undertaken   after   a   particular  date,   which   would   necessarily  

preclude   an   award   for   expenses   covered   by   the   insured   party's   medical-payment  


                                  Third, the superior court could have allowed the jury to determine the total                                                                                                     

medical expenses attributable to the accident and then reduced that award to prevent                                                                                                                      

recovery for payments made by GEICO.                                                                           We have concluded that this approach is                                                                  

appropriate in the context of a damages cap.                                                                             In  Kodiak Island Borough v. Roe                                                         , we   

determined that the superior court improperly instructed the jury on a statutory non-                                                                                                                            

economic damages cap in an intentional tort case: While "[t]he legislature may limit the                                                                                                                              

amount of damages that can be awarded, . . . it is for the jury to determine the extent of                                                                                                                              


the plaintiff's injury and the damage award that will make [him or] her whole."                                                                                                                                   

                                  Any of these approaches would allow a plaintiff to introduce evidence of  


the full cost of medical treatment without allowing the plaintiff to recover any costs  


precluded by Ruggles, leaving the insurer free to pursue its separate litigation.  


                                  3.	              The superior court's exclusion of evidence of the full cost of  


                                                   treatment was harmless error.  


                                  Having concluded that the superior court erred by excluding the evidence  


of the cost of Luther's medical treatment covered by GEICO, we must next consider  


whether that error warrants a new trial.  Unless we can determine that the exclusion of  


                                                                                                                                                                          35  we must conclude  

the evidence had a "substantial effect" on the outcome of the trial,                                                                                                                                  


that the error was harmless.  While Luther was improperly precluded from presenting  


                 34               63 P.3d 1009, 1016-17 (Alaska 2003).                                              



                                  Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012) (first citing Alaska  


R. Civ. P. 61; then citing Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146  


(Alaska 1999)).  

                                                                                                          -16-	                                                                                                  7103

----------------------- Page 17-----------------------

 evidence of all of her medical treatment expenses because some were paid by GEICO,                                                                                                                                                                                                                                                                                                                                                      

 Luther was free to admit her medical records and to testify about the type of medical                                                                                                                                                                                                                                                                                                                                                    

 treatment she received from the date of the accident through trial.                                                                                                                                                                                                                                                                                                        It was Luther who                                                                 

 elected not to present a single medical expert to support her claim that the accident                                                                                                                                                                                                                                                                                                                                                 

 caused her persistent lower back pain.                                                                                                                                                                                        And the medical records reflected that even                                                                                                                                                                                 

 Luther's                                                 own                               orthopedic                                                           specialist                                                   found                                      her                         continued                                                        need                                for                       treatment  

 "perplex[ing]."   Lander, on the other hand, presented the testimony of Dr. Bald, who                                                                                                                                                                                                                                                                                                                                                                        

undermined any causal connection between the accident and Luther's continuing pain,                                                                                                                                                                                                                                                                                                                                                                        

 along with evidence indicating that Luther failed to mitigate her damages.                                                                                                                                                                                                                                                                                    

                                                                         In light of the evidence presented and the trial strategies employed in this                                                                                                                                                                                                                                                                                                             

 case, we cannot conclude that admission of the amount of the GEICO payments would                                                                                                                                                                                                                                                                                                                                                                  

have had a substantial effect on the outcome of the trial.                                                                                                                                                                                                                                                    We therefore conclude that the                                                                                                                          

 error was harmless.                                                                                         

                                     B.	                                 The Superior Court Did Not Err By Denying Luther's Motion For A                                                                                                                                                                                                                                                                                                                                    

                                                                         New Trial.   

                                                                         Luther also argues that the superior court should have granted her motion                                                                                                                                                                                                                                                                                             

 for a new trial because the jury did not award adequate damages and "[t]he result reached                                                                                                                                                                                                                                                                                                                                                  

by the jury was manifestly unfair." But because there was sufficient evidence to support                                                                                                                                                                                                                                                                                                                                                      

 the jury's verdict, we affirm the trial court's ruling.                                                                                                                                                                                          

                                                                         Luther has failed to establish that the circumstances in this case constitute                                                                                                                                                                                                                                                                           

 the type of "exceptional circumstances" in which we will reverse a trial court's denial of                                                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                      36             We have held that "[i]nadequacy of  

 a new trial "to prevent a miscarriage of justice."                                                                                                                                                                                                                                                                                                                                                                                                                       

 a jury verdict is grounds for a new trial in cases where negligence is conceded or proved,  




                                                                          Getchell  v.  Lodge,  65  P.3d  50,  53  (Alaska  2003)  (quoting  Bierria  v.  


Dickinson Mfg. Co., 36 P.3d 654, 656 (Alaska 2001)).  

                                                                                                                                                                                                                                 -17-	                                                                                                                                                                                                                       7103  

----------------------- Page 18-----------------------


but  no damages are awarded                      ."    But in cases "where the jury makes                            some  award . . .         

where   negligence   is   conceded   or  proved,   we   have   not   reversed   that   award   as  



inadequate."              Here, the jury did award damages.  Because "reasonable minds [can]  


differ on the causal relationship between [an] accident and [a plaintiff's] injuries . . . [t]he  



resolution of [the] issue [of damages] turns upon the credibility of the witnesses." 


Here, the jury may not have been persuaded that the accident cost Luther as much as she  


claimed in medical expenses, lost pay, and pain and suffering.  


                      Luther relies on several decisions in which we reversed a superior court's  


denial  of  a  new  trial  because  of  inadequate  damage  awards,  but  those  cases  are  


unpersuasive here.  For example, in Pugliese v. Perdue, we reversed an award of no  



damages where evidence that the accident had caused the injury was indisputable. 


in Fancyboy v. Alaska Village Electric Cooperative, Inc., the jury awarded damages for  


property loss and medical expenses arising out of a fire that was determined to be  


partially caused by the defendant, but it gave no award for non-economic damages  




despite the fact that the plaintiffs suffered "painful burns and . . . loss of consortium." 


But here,  the jury made awards for both past medical expenses and non-economic  


damages.  And the cases cited by Luther in which we upheld a superior court judge's  

           37         Glamann v. Kirk             , 29 P.3d 255, 263 (Alaska 2001) (emphasis added).                         



                      Id. (emphasis added); seealso Hutchins v. Schwartz, 724 P.2d1194(Alaska  


 1986) (affirming a jury award of $250 for lost earnings rather than the $18,500 the  

plaintiff   claimed;   $0   instead   of   $75,000   for   lost   enjoyment   of   life   and   physical  


impairment; and $937 for past medical expenses instead of the claimed $20,794).  

           39         Hutchins, 724 P.2d at 1203.  


           40         988 P.2d 577, 583 (Alaska 1999).  


           41         984 P.2d 1128, 1136 (Alaska 1999).  


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----------------------- Page 19-----------------------

discretionary decision to                 grant   a new trial on the ground of an inadequate award of                                      



                   support the proposition that there must be "exceptional circumstances . . .  


which would require us to overrule the superior court's discretionary grant of a new  

          43   Such circumstances do not exist in this case because a review of the record  


reveals that there was sufficient evidence presented to support the jury's award.  


                      First, Luther challenges the jury's decision to award her only $809 for past  


medical expenses,arguingthatsheshould havebeen awarded $1,578.86, the"undisputed  


total  of  past  medicals  due  for  that  year."                         But  the  jury  was  free  to  make  its  own  


assessment of the amount of medical expenses that were attributable to the accident. As  


Lander points out, Dr. Bald qualified his statement that one year was a reasonable  


treatment period by observing that he was "[g]iving Ms. Luther quite a bit of benefit of  


the doubt."  And the jury could have relied on Dr. Bald's testimony that he "[could not]  


attribute [Luther's] complaints of intermittent pain in her buttock to [the] accident." The  


jury could also have determined that Luther failed to mitigate her damages:  Dr. Bald  


testified that Luther's failure to attend all physicaltherapysessionscould have prolonged  


her pain, and Luther conceded that she twice refused steroid injections recommended by  


her doctors.  Finally, we have recognized that where the damage to the vehicle is minor,  


that evidence "can be probative of the force with which the accident occurred[] and the  


likelihood that it caused serious harm to" a party.44  So the jury could have considered  


that evidence in reaching the conclusion that Luther's harmfromthe accident was minor.  


           42         See Buoy v. ERA Helicopters, Inc.                       , 771 P.2d 439 (Alaska 1989);  Sebring  

v.  Colver, 649 P.2d 932 (Alaska 1982).                           

           43         Buoy, 771 P.2d at 442.  


           44         Marron v. Stromstad, 123 P.3d 992, 1009 (Alaska 2005).  


                                                                    -19-                                                             7103

----------------------- Page 20-----------------------


                    Second, the jury awarded Luther $1,700 in lost wages and benefits despite  


her claimed loss of $51,122.52.  Given the variable nature of Luther's compensation as  


a flight attendant, a broad range of awards could have been supported by the evidence.  


We need only determine whether there was sufficient evidence to support the jury's  


award, and we conclude that there was. In light of the testimony and evidence presented  


at trial, it is plausible that the jury's award reflected its belief that the accident did not  


actually prevent Luther from returning to work for the full year.  Dr. Bald testified that  


Luther could return to work "[i]f she so desired," and Glenn refused to sign her "total  


disability" work status reports.   And again, the jury may have considered evidence  


presented by Lander of Luther's failure to mitigate and the possibility raised by Lander  


at trial that even if Luther had returned to work in December 2010, she could have been  


placed on additional furloughs.  Similarly, the jury's decision not to compensate Luther  

for her COBRA payments was supported by evidence that her variable work schedule  


may not have entitled her to employer-provided health insurance.   Thus, there was  


sufficient evidence to support the jury's award of $1,700.  


                    Finally, Luther claims that the amount awarded for her pain and suffering  


resulting from the accident was inadequate.  But given the subjective nature of a jury's  


award of non-economic damages, we cannot conclude that the award was unsupported  


by the evidence.  While Luther testified that her injuries have caused interrupted sleep  


and pain when sitting for long periods of time, Dr. Bald testified that "her examination  


was completely and totally normal," and Glenn was "perplexed" by the fact that she was  


still requesting disability status two years after the accident.  


                    Because there was evidence to support the jury's award of damages and our  


precedent does not warrant a reversal of the superior court's denial of Luther's motion  


for a new trial, we affirm that denial.  

                                                              -20-                                                         7103

----------------------- Page 21-----------------------

                   C.	                The Superior Court Did Not Err In Its Order Granting Attorney's                                                                               

                                      Fees Because Luther Had Access To All Of Lander's Billing Records.                                                                                                                 

                                     Finally, Luther argues that the superior court erred in granting Lander                                                                                                                  

attorney's fees under Rule                                               68 because Lander filed the documents supporting her request                                                                                          

for fees under seal.                                       But while the billing records were filed "under seal," the court                                                                                                         

promptly redesignated them as "confidential" in April 2014, providing the parties with                                                                                                                                                


access to the documents.                                                                                                                                                                                                      

                                                                             And in any event, Lander provided all of the billing records  


in support of her motion directly to Luther.  Thus, Luther does not claim that she was  


denied  access  to  the  supporting  billing  documentation,  and  as  Lander  points  out,  


"Luther's ability to contest or respond to the [motion] was in no way burdened" by the  


fact that the documentation was filed under seal and designated as confidential by the  




                                      Luther  makes  a  persuasive  policy  argument  against  the  ability  of  a  


prevailing party to designate as confidential billing records in support of a motion for  


attorney's fees:  She argues that this practice could place an undue burden on parties  


opposing those fees by preventing them from mentioning the confidential information  


in their opposition to the motion. But here, Luther did not oppose the reasonableness of  


the hourly rates or the amount of time expended, and she expressly allowed that the  


award of attorney's fees was "within the discretion of [the superior court]."   Thus,  


Luther's argument is hypothetical, and we do not need to consider it here.  


                                      Luther also argues that "as a general principle, court proceedings are open"  


and that there is no reason documents supporting a motion for attorney's fees should be  

                   45                Under Alaska Administrative Rule 37.5(c), " '[c]onfidential' means access                                                                                                                   

to the record is restricted to:                                                 the parties to the case; counsel of record; individuals with                                                                                          

a written                order fromthecourt                                      authorizing access; and court personnel for case processing                                                                         

purposes only," while " '[s]ealed' means access to the record is restricted to the judge                                                                                                                                 

and persons authorized by written order of the court."                                                                                                   

                                                                                                                    -21-	                                                                                                            7103

----------------------- Page 22-----------------------

treated differently.                                            She maintains that the information should be public as a matter of                                                                                                                                                        

policy because knowledge of the prevailing hourly rate for attorneys may be useful in                                                                                                                                                                                                     

future cases.                                 This may be true, but Luther does not suggest that the trial court has                                                                                                                                                                 

considered or denied any request for access to these documents.                                                                                                                                                                  And the trial court                           

"may, by order, limit access to public information in an individual case record by sealing                                                                                                                                                                                

                                                                                                                                                                                                                                                                 46   Absent  

or making confidential the case file [or] individual documents in the case file."                                                                                                                                                                                        

any indication that Luther or any other party has requested or been denied access to these  


documents, we cannot conclude that the superior court abused its discretion.  


V.                     CONCLUSION  

                                             For the reasons discussed above, we AFFIRM the final judgment of the  


superior court.  


                      46                     Alaska Admin. R. 37.6(a).  


                                                                                                                                          -22-                                                                                                                                                 7103  

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