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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marshall v. Peter (8/26/2016) sp-7123

Marshall v. Peter (8/26/2016) sp-7123

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

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MARSHALL, Husband and Wife,                                  )    Supreme Court No. S-16017  


                            Appellants,                      )    Superior Court No. 3AN-14-04950 CI  


         v.                                                  )    O P I N I O N  


MATTHEW H. PETER and ROBERT L.  )                                 No. 7123 - August 26, 2016  

NELSON,                                                      )  


                            Appellees.                       )  


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


                   Judicial District, Anchorage, Catherine M. Easter, Judge.

                   Appearances:  Robert  C.  Erwin,  Robert  C.  Erwin,  LLC,


                   Anchorage, for Appellants. Gregory R. Henrikson and Laura


                   Eakes, Walker & Eakes, Anchorage, for Appellees.

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

                   Bolger, Justices. [Fabe, Justice, not participating.]

                   BOLGER, Justice.

                   STOWERS, Chief Justice, concurring.


                   On a particularly icy day, a driver came to a stop about one-half car length  


behind a vehicle stopped at a stoplight.  After the vehicle ahead began to move forward,  


the driver behind released his foot from the brake, but the driver ahead stopped sooner  


than the following driver expected.  Despite his braking and his low speed, the driver  


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

behind slid into the back of the car.  The driver ahead contends that no reasonable juror  

could have found the other driver not negligent and that the superior court therefore  


should have granted her motion for a directed verdict on liability.  We conclude that the  


jury reasonably found the driver behind not negligent, and we therefore affirm the denial  

of the motion.  


          A.        Facts  

                    Mid-afternoon on an icy early March day, plaintiff Michele Marshall was  


stopped at a stoplight on 36th Avenue in Anchorage preparing to turn left onto New  

Seward Highway from the outside turn lane.  Two Jack Russell terriers were in the  


backseat.  Defendant Matthew Peter testified that he came to a complete stop about one- 


half car length behind her.  After about 30 seconds, the light turned green, Marshall  

began to move forward, and Peter released his foot from the brake.  But Marshall stopped  


sooner than Peter expected; Peter returned his foot to the brake, attempted to stop, and  


slid into Marshall's vehicle.  He testified that his car "just tapped the back of her car" at  


a speed that "couldn't [have] be[en] more than three miles an hour."  He had yet to place  

his foot on the accelerator.  

                    Marshall recalled stopping and then after a "long pause" feeling "slammed"  


from behind.  She testified that she had not yet entered the intersection when the light  


turned yellow for the second or third vehicle in front of her:  "[K]nowing that I would  


not be able to make it through on the . . . red light[,] I came to a stop on . . . the red light."  


The collision was so forceful, she testified, that her car slid forward one car length and  


her purse and dogs fell to the floor. She confirmed that her brake lights were functioning  

and emphasized both the particularly slick conditions and the "very short" nature of the  

light.  Peter recalled that one or two vehicles were in front of Marshall; he and Marshall  


"weren't very far behind."  Though Peter could see the intersection, he did not recall  

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whether the light was red when he saw Marshall stop.  His attention, he explained, was  


focused on the space between his car and hers; he confirmed he was not "in any way  



                        At the scene of the collision, Officer Michael Farr of the Anchorage Police  

Department questioned Marshall and Peter about the incident.  Farr testified that there  


appeared to be no damage to either vehicle. Marshall told him that she was experiencing  


neck pain and noted that a previous collision had left her completely disabled.  Based on  

Peter's and Marshall's brief descriptions, Farr concluded that Marshall had not done  


"any improper driving" and that Peter had engaged in an improper start.   

            B.          Proceedings  

                        In February 2014, about two years after the collision, Marshall and her  


husband filed a complaint alleging that Peter was negligent and claiming about $212,500  


in damages - car damage ($1,029.35), medical bills ($51,458.57), personal pain and  


suffering  ($150,000),  and  loss  of  consortium  ($10,000).    About  one  month  later,  


Marshall moved for summary judgment on the issue of Peter's liability.  Within the week  


Peter made two offers of judgment under Alaska Civil Rule 68: $2,651.17 for Marshall's  


claims plus costs, applicable interest, and Alaska Civil Rule 82 attorney's fees; and $100  

            1           See Anchorage Municipal Code (AMC) 09.22.030(A) (2011) ("No person                                 

may start or place in motion a vehicle which is stopped, standing or parked unless and           

until such movement can be made with reasonable safety.").  Though Farr briefly noted  

at trial that Peter received a citation for that violation, the citation was not offered into  


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for her husband's loss of consortium claim plus costs, applicable interest, and Rule 82  



attorney's fees.          Marshall did not reply to either offer, and about two months later the  

superior court denied her motion for summary judgment.  


                    At the jury trial, Marshall, Peter, and Officer Farr testified to the above  

account.  Marshall also called four other witnesses:  her husband, the owner of the car  


Peter was driving,  and two physicians who treated her before and after the March 2012 



                    After Peter rested Marshall moved for a directed verdict on the issue of  


liability.   The court denied the motion.  The court stated that the motion was not timely  


because Marshall did not make the motion before she rested, and even if timely there was  


evidence to suggest that liability was an issue - the parties were stopped at a stoplight,  


the roads were very icy, and Peter testified that "he hadn't even put his foot on the gas."  


                    On a special verdict form, the jury found Peter not negligent.  Marshall then  

                                                                         5                                                        6  


moved for judgment notwithstanding the verdict                             and in the alternative for a new trial. 


Peter moved for actual attorney's fees under Rule 68  and in the alternative for fees  


          2         See  Alaska  R.  Civ.  P.  82(a)  ("Except  as  otherwise  provided  by  law  or  

agreed to by the parties, the prevailing party in a civil case shall be awarded attorney's  


fees calculated under this rule.").  

          3         Marshall named the car's owners as well as  Peter  as defendants in the  

complaint,  claiming  that  the  owners  were  vicariously  liable  for  Peter's  alleged  


negligence.  The owners' liability is not at issue in this appeal.  

          4         See Alaska R. Civ. P. 50(a).  

          5         See Alaska R. Civ. P. 50(b).  

          6         See Alaska R. Civ. P. 59.  

          7         See Alaska R. Civ. P. 68 ("If the judgment finally rendered by the court is  


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under Civil Rule 82.   The court denied Marshall's motion and granted Peter's motion,  

awarding him 75% of reasonable actual fees under Rule 68 for a total of $61,641.00.  

                    Marshall appeals the denial of her motion for a directed verdict and the  

attorney's fee award.  


                    In reviewing the denial of a motion for a directed verdict, "we apply an  


objective  test  to  determine  whether  the  evidence,  when  viewed  in  the  light  most  

favorable to the non-moving party, is such that reasonable [persons] could not differ in  



their judgment."           "[B]ecause the sufficiency of the evidence to support a jury verdict is  


a question of law," we review the denial of a motion for a directed verdict de novo.                                           

                    " 'We review an award of attorney's fees for abuse of discretion,' so a fee  

award 'will not be disturbed on appeal unless it is "arbitrary, capricious, or manifestly  

unreasonable." ' "11 But we consider de novo "[w]hether the superior court applied the  

          7         (...continued)  

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 . . . .").  

          8         See Alaska R. Civ. P. 82(b)(2) ("In cases in which the prevailing party  

recovers no money judgment, the court shall award the prevailing party in a case which  

goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which  


were necessarily incurred . . . .").  



                   Alaska  Fur  Gallery,  Inc.  v.  First  Nat'l  Bank  Alaska ,  345  P.3d  76,  83  


(Alaska 2015) (alteration in original) (quoting Turner v. Municipality of Anchorage, 171  

P.3d 180, 185 (Alaska 2007)).  



                    Cameron  v.  Chang-Craft,  251  P.3d  1008,  1018  (Alaska  2011)  (citing  

L.D.G., Inc. v. Brown , 211 P.3d 1110, 1117 (Alaska 2009)).  

          11        Limeres v. Limeres , 367 P.3d 683, 686 (Alaska 2016) (footnote omitted)  


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appropriate legal standard in its consideration of a fee petition,"12 including "whether  

 [the] superior court correctly determined a settlement offer's compliance with Rule 68."13  



          A.        Reasonable Jurors Could Differ Over Whether Peter Was Negligent.  

                    Marshall contends that no reasonable juror could have found Peter not  

negligent and therefore the superior court erred when it denied her motion for a directed  


verdict.     As noted we review de novo a grant or denial of a motion for a directed  



verdict.       Here, after objectively reviewing the evidence in the light most favorable to  



Peter, the non-moving party,                 we conclude that reasonable persons could differ in their  

judgment as to Peter's liability.  Therefore we affirm the denial of Marshall's motion.  

          11        (...continued)  

(first quoting Martin v. Martin , 303 P.3d 421, 424 (Alaska 2013); then quoting Limeres  

v. Limeres , 320 P.3d 291, 296 (Alaska 2014)).  

          12        Id.  at 686-87 (alteration in original) (quoting Powell v. Powell , 194 P.3d   

364, 368 (Alaska 2008)).  

          13        Tagaban v. City of Pelican, 358 P.3d 571, 575 (Alaska 2015) (quoting Beal  


v. McGuire , 216 P.3d 1154, 1162 (Alaska 2009)).  

          14        Marshall  also  argues  that  the  superior  court  incorrectly  ruled  that  her  


motion for a directed verdict was untimely.  But any such error did not cause Marshall  


prejudice because the court also denied the motion on its merits, and therefore we do not  


reach the issue.  See Mullins v. Local Boundary Comm'n , 226 P.3d 1012, 1016 (Alaska  


2010) ("But the superior court's failure to allow [the appellant] adequate time to respond  


does not require a reversal of its decision because [the appellant] can show no resulting  

prejudice." (citing Boggess v. State , 783 P.2d 1173, 1182 (Alaska App. 1989))).  

          15        Cameron, 251 P.3d at 1018.  



                   Alaska  Fur  Gallery,  Inc.  v.  First  Nat'l  Bank  Alaska ,  345  P.3d  76,  83  

(Alaska 2015).  

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                    In four previous cases, we have held that the evidence could only support  


                                                                                A driver exercising due care must  

a conclusion that the following driver was negligent. 

anticipate  changing  road  conditions,18  and  absent  notice  to  the  contrary  a  following  


driver generally can assume that other drivers will obey the law.                                   Thus a reasonable  


driver generally anticipates sudden stops, routine turns, stalled vehicles, downgrades,  



intersections, and treacherous road surfaces.                       In accounting for such conditions, a driver  


                                                                                                        A failure to stop  

must control his or her speed and maintain a safe following distance. 


safely cannot be justified by the mere existence of icy conditions and suddenly stopping  


          17        See Green v. Plutt, 790 P.2d 1347 (Alaska 1990); Grimes v. Haslett, 641  

P.2d  813  (Alaska  1982);  Hahn  v.  Russ ,  611  P.2d  66  (Alaska  1980);  Clabaugh  v.  

Bottcher , 545 P.2d 172 (Alaska 1976).  

          18        See, e.g., Green, 790 P.2d at 1349 (vehicles stopped in roadway);                               Grimes,  

641 P.2d at 819 (vehicle braking before routine left turn); Hahn , 611 P.2d at 67-68  

(sudden stop in rush-hour traffic); Clabaugh, 545 P.2d at 176 (downgrades, icy surfaces,  



          19        See Blackford v. Taggart, 672 P.2d 888, 890 (Alaska 1983) ("A following  


motorist has the right to assume, unless he has notice to the contrary or in the exercise  


of reasonable care he should have notice to the contrary, that a preceding motorist will  


obey the law." (citing Perdue v. Pac. Tel. & Tel. Co. , 326 P.2d 1026, 1030 (Or. 1957))).  


          20        See Green, 790 P.2d at 1349; Grimes, 641 P.2d at 819-20; Hahn , 611 P.2d  

at 67-68; Clabaugh, 545 P.2d at 176.  



                    See Green, 790 P.2d at 1349; Grimes, 641 P.2d at 819-20; Hahn , 611 P.2d  

at 67-68; Clabaugh, 545 P.2d at 176.  

          22        Compare Green, 790 P.2d at 1349 ("Plutt should have anticipated that  

vehicles on city streets are often called upon to make sudden stops.  Her speed and  

following distance should have been such that she could stop safely when the Blazer  

braked to a stop."),  Grimes, 641 P.2d at 819 ("Left turns onto business premises are a  


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                    But this case differs from those in which we have concluded that reasonable  


persons could only conclude that the following driver was negligent.   Peter had just  


stopped and thus was aware of the icy conditions.  He knew how his vehicle might  


respond, and he took conscious measures accordingly.  He left about one-half car length  


between his vehicle and Marshall's vehicle, monitored the distance between his vehicle  


and hers, and was traveling at a low rate of speed - about three miles per hour - when  


he slid into her car.  Before attempting to stop again, he had only released his foot from  


the brake.  Viewing these facts in the light most favorable to Peter, reasonable persons  


could conclude that Peter anticipated that Marshall might stop unexpectedly, followed  

her at a safe distance and speed, and exercised due care when he saw her stop.  


                    We therefore affirm the denial of Marshall's motion for a directed verdict.  

                    B.        The Settlement Offers Complied With Civil Rule 68.  


                    Marshall contends that Peter's offers of judgment failed to comply with  

                                                                                                 23   Peter recognizes his  


Civil Rule 68 because they were too low to encourage settlement.  

          22        (...continued)  

fairly routine traffic event. . . .  Haslett, for no apparent reason, could not stop in time."),  


Hahn , 611 P.2d at 68 ("One should expect sudden stops in heavy traffic, especially when  


it  has  recently  been  stop-and-go."),  and  Clabaugh,  545  P.2d  at  176  ("[A]ny  driver  

exercising the privilege of operating a motor vehicle on the highways of interior Alaska  

at that time of year must be expected to anticipate the presence of ice on the roadway and  


the possibility of slippery road conditions that will make it difficult to stop."),  with  

Blackford , 672 P.2d at 890 (stating that given "Blackford's failure to signal or display  


brake lights," "[r]easonable jurors could disagree on whether Taggart was negligent in  


failing to see that Blackford's car was not moving before it was too late to stop").  

          23        Marshall does not challenge the amount of the fee award.   

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offers of $2,651.17 and $100 were "on the low end of the spectrum," but he contends that  


the offers nonetheless provided a reasonable starting point for negotiation, as Rule 68  


requires.  We review de novo whether a settlement offer triggers Rule 68.                                           


                    Under Civil Rule 68 either party may make "an offer to allow judgment to  


be entered in complete satisfaction of the claim for the money or property or to the effect  



specified in the offer, with costs then accrued."                          If the final judgment is at least 5% less  

favorable to the offeree than the offer (or in the case of multiple defendants, at least 10%  


less favorable), "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."                                                            

                      Rule 68 thus creates a financial incentive for settlement by "encourag[ing]  

parties to assess their litigation risks carefully and penaliz[ing] an offeree's rejection of  


a reasonable settlement offer."                     


                    Not all settlement offers trigger Rule 68.  An offer must "serve the purpose  

of  [the  rule]":    "encourag[ing]  settlement  and  avoid[ing]  protracted  litigation."28  


Disingenuously low offers that simply attempt to shift litigation costs onto the other party  

          24         Tagaban v. City of Pelican, 358 P.3d 571, 575 (Alaska 2015).  

          25        Alaska R. Civ. P. 68(a).  

          26        Alaska R. Civ. P. 68(b) (emphases added).  

          27         Windel  v.  Mat-Su Title Ins. Agency, Inc. , 305 P.3d 264, 279 (Alaska 2013).  

          28        Anderson v. Alyeska Pipeline Serv. Co. , 234 P.3d 1282, 1289 (Alaska 2010)  

(quoting Beal v. McGuire , 216 P.3d 1154, 1178 (Alaska 2009)); see also Beal, 216 P.3d  


at 1178 ("[O]ffers of judgment made without any chance or expectation of eliciting  

acceptance or negotiation do not accomplish the purposes behind the rule.").  Marshall  


argues that Rule 68 offers must be made in "good faith," but we have not adopted a good  


faith test.  Anderson , 234 P.3d at 1289.  


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do not satisfy this requirement.                    But small offers may be valid even when they are much  



lower than the amounts demanded.                             Such discrepancies might be justified when the  



claims have a "tenuous factual basis or controlling legal precedent."                                            Both the timing  


and the amount of an offer may bear on its validity.                                  

                     Peter's offers of judgment complied with Rule 68 because there was an  

"objectively  reasonable  prospect"  that  they  might  start  a  dialogue  that  could  lead  to  



                      Though Peter made the offers about one month after Marshall filed her  


complaint, this was after Marshall moved for summary judgment on liability.  Thus with  


respect  to  two  major  elements,  negligence  and  causation,  Marshall  claimed  that  all  

relevant facts were known and  undisputed.34  

                                                                           The  record also establishes that Peter  

           29        Anderson , 234 P.3d at 1289.  

           30         Compare  id., 234 P.3d at 1290 ($10 offer invalid when made "shortly after           

[defendant]  filed  its  answer"  and  when  plaintiff's  $500,000  claim  arose  from  "an  

undisputedly serious head injury caused by a table that belonged to [defendant]"), and  


Beal , 216 P.3d at 1177-78 ($1 offer invalid when made 30 days after litigation began and  


when "good faith dispute involv[ed] potentially substantial damages"),  with  Rude v.  


Cook Inlet Region, Inc., 322 P.3d 853, 859 (Alaska 2014) ($1,500-per-shareholder offer  

valid despite claims exceeding $200,000 when claims were barred by collateral estoppel  


and thus were "particularly weak").  

           31        Anderson , 234 P.3d at 1289-90.  

           32        See  id.  at  1289  ("[T]here  was  no  objectively  reasonable  prospect  that  


Anderson would accept ten dollars to settle her case - or that the offer would even start  


a dialogue that could lead to settlement - at that stage of the litigation."); Beal, 216 P.3d  


at 1178 (given timing and amount of offers, they "could not be considered valid offers  

of settlement or compromise, or valid attempts to encourage negotiation").  

           33        Anderson , 234 P.3d at 1289.  



                     See Alaska R. Civ. P. 56(c) ("[Summary] judgment shall be rendered . . .  


if the pleadings, depositions, answers to interrogatories, and admissions on file, together  


                                                                  -10-                                                            7123

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


reviewed  the  evidence  -  including  Marshall's  medical  records  and  the  facts  of  the  


accident - before making the offers.  And though the offers were substantially lower  


than Marshall's demands, the evidence suggested that Marshall's demands had a tenuous  


factual basis.  Peter recalled that the collision was minor; he had only tapped Marshall's  

vehicle and had caused no apparent damage.   

                   Because the offers objectively appeared designed to encourage settlement  


and avoid protracted litigation, we hold that the offers served the legitimate purpose of  


Rule 68.  Therefore we affirm the attorney's fee award.  

V.        CONCLUSION  

                   We AFFIRM the superior court's denial of the motion for directed verdict  


and the attorney's fees award under Civil Rule 68.  


with the affidavits, show that there is no genuine issue as to any material fact and that


any party is entitled to a judgment as a matter of law.").

                                                            -11-                                                       7123

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STOWERS, Chief Justice, concurring.  

                    I  respectfully  concur  in  the  court's  opinion.    Most  Alaskans  with  any  

significant winter driving experience understand that sometimes, notwithstanding the  


exercise  of  reasonable  care  in  driving  on  icy  roads,  vehicles  simply  fail  to  stop  as  


anticipated and low-speed, minimal-damage collisions occur.  In such situations, it is the  


jury's role and responsibility to decide whether the driver of the following vehicle was  


negligent.  I trust the jury to reach a correct result.  In this case, the jury plainly did not  

believe that Peter was negligent, and this court properly affirms its verdict.  


                    I write separately to express my doubt regarding the soundness of cases like  

                                                                                           1                                  2  

those cited in the court's opinion, particularly  Green v. Plutt  and  Grimes v. Haslett.  

These cases are conceptually similar to Marshall's case, where following drivers were  


unable to stop their vehicles in the face of an unexpected, sudden condition and rear- 

ended the preceding vehicles.  Juries found the following drivers not negligent.  This  


court overturned the juries' verdicts, holding that the trial court judges  erred  in not  

granting plaintiffs' motions for directed verdicts.  


                    I am skeptical about these outcomes.  Though I acknowledge that these  


cases are precedent, I find it troubling that this court in the past has interjected itself in  

the role of juries, deciding which sets of facts and highway conditions are sufficient to  

uphold a jury's verdict and which are insufficient.  We should trust and respect the jury's  

exercise of its collective wisdom in all of these cases; we should only overturn a jury's  


verdict when the evidence supporting the verdict is so plainly lacking that no reasonable  

person could conclude the following driver was not negligent.  

          1                   Green v. Plutt, 790 P.2d 1347 (Alaska 1990).  

          2                   Grimes v. Haslett, 641 P.2d 813 (Alaska 1982).  

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