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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Small v. Sayre (11/25/2016) sp-7134

Small v. Sayre (11/25/2016) sp-7134, 384 P3d 785

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

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

KENISHA  SMALL,  TRAVIS  SMALL                                   )  

SR.,  and  KENISHA  SMALL  and                                   )     Supreme  Court  No.   S-15983  

TRAVIS  SMALL  SR.,  on  behalf  of                              )  

KHANYA  SMALL,  a  minor  child,                                 )     Superior  Court  No.   4FA-13-01871  CI  



                                                                 )     O P I N I O N  



                                                                 )    No. 7134 - November 25, 2016  



AUSTIN SAYRE,                                                    )  


                              Appellee.                          )  




                       ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                    Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.  


                    Appearances: Michael J. Walleri, Gazewood & Weiner, PC,  


                    Fairbanks, for Appellants. Gregory R. Henrikson, Walker &  


                    Eakes, Anchorage, for Appellee.  


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


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


                    BOLGER, Justice.  



                    A driver and his passengers sued another driver for injuries arising from an  


accident. After a trial, the jury returned an award of past pain and suffering damages for  


the driver and past medical expenses and pain and suffering damages for one of the  

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passengers. The driver and passengers appeal thisaward,arguing that it is impermissibly  


inconsistent and not supported by the weight of the evidence.  Because the driver and  


passengers  failed  to  challenge  the  jury  verdicts  before  the  trial  court,  all  of  their  


challenges are waived, and we affirm the verdicts in full.  




                    In November 2011 Travis Small was idling in traffic with his wife Kenisha  


and daughter Khanya as passengers when Austin Sayre rear-ended their car. The Smalls  


all  went  to  the  hospital  following  the  accident  where  they  were  prescribed  pain  


medication and advisedto schedulefollow-upappointments with a doctor. In the months  


and years following the accident, the Smalls sought medical treatment for a variety of  


issues  that  they  claimed  stemmed  from  the  accident.                              Travis  sought  medical  and  


chiropractic treatment for neck and back pain.   And Kenisha saw over a half-dozen  


medical providers, including neurologists, an orthopedic surgeon, chiropractors, and  


physical therapists.  She complained of chronic migraines and experienced pain in her  


upper body, neck, and left shoulder. A year after the accident, a neurosurgeon diagnosed  


her with a herniated disc and recommended that she undergo spinal fusion surgery.  But  


Kenisha did not have the surgery at that time because she was pregnant, and she did not  


reschedule the surgery at a later date due to concerns about the cost.  


                    In  April  2013  the  Smalls  filed  a  complaint  against  Sayre  alleging  


negligence and damages in excess of $100,000.  Sayre ultimately conceded negligence  


but contested both causation and damages. He moved for partial summary judgment on  


the portion of the Smalls' medical expense claims that were paid by their insurer.  The  


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trial court granted this motion, authorizing the Smalls to pursue recovery of only the                                                                                                                 


medical expenses that their insurer had not paid.                                                                      

                                The Smalls proceeded to a jury trial on their remaining claims in April  


2015.   The jury issued three special verdicts, finding that Sayre's negligence was a  


"substantial factor" in causing injury to Kenisha and Travis but not to Khanya. The jury  


awarded Kenisha $2,000 in past economic damages (for medical expenses or lost wages)  


and $4,000 in past non-economic damages (for pain and suffering, loss of enjoyment of  


life, physical impairment, or inconvenience) but did not award any future economic or  


non-economic damages. Travis was awarded $4,000 in past non-economic damages but  


was  not  awarded  past  economic  damages  or  any  future  damages.                                                                                                   Before  the  jury  


announced the verdicts, the parties' lawyers and the judge briefly discussed whether an  


award of pain and suffering without medical expenses would be an inconsistent verdict,  


but the court issued no clear ruling.  The Smalls made no motion to disturb the jury  


verdict  in  the  proceedings  before  the  trial  court,  either  by  moving  for  a  judgment  


notwithstanding the verdict or for a new trial.  


                                TheSmalls nowappeal thejury verdicts with respect to TravisandKenisha.  


They take issue with two aspects of the verdicts:  (1) the jury's failure to award Kenisha  


damages for future medical expenses to cover the cost of future surgery and (2) the jury's  


failure to award Travis damages for past medical expenses.  The Smalls claim that both  


of these awards are "impermissibly inconsistent" and "contrary to the weight of the  


evidence." Sayre argues that both of these challenges are waived because the Smalls did  


                1               The Smalls' insurer paid a portion of their medical expenses and sought                                                      

reimbursement from Sayre.                                           Accordingly, it directed them to not "pursue the right to                                                                             

collect" that money from Sayre on their own behalf.                                                                         See Ruggles ex rel. Estate of Mayer                                 

v.  Grow, 984 P.2d 509, 512 (Alaska 1999) (holding that a "subrogated claim belongs to                                                                                                                     

the insurer," giving it the right to "determine that [its] claim should not be pursued").                                                                                          

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not raise a claim of inconsistency before the jury was dismissed and did not move for a                                                                                    

new trial, instead challenging the verdicts for the first time on appeal.                                                                   

III.	         STANDARD OF REVIEW                   

                           "Generally, questionsofwhatevernature,notraisedand                                                          properly preserved  


for review in the trial court, will not be noticed on appeal."                                                                                                 

                                                                                                                           Accordingly, we review  



issues that were not raised before the trial court for plain error.                                                           We will find plain error  


"where an obvious mistake has been made which creates a high likelihood that injustice  



has resulted." 

IV.	          DISCUSSION  


              A.	          The  Smalls  Waived  Their  Argument  That  The  Verdicts  Were  


                           Inconsistent Because They Failed To Object To The Verdicts Before  


                           The Jury Was Discharged.  


                           We  have  long  held  that  litigants  waive  their  right  to  challenge  the  



consistency of a jury verdict if they fail to raise the issue before the jury is discharged. 


This rule is intended "to promote the efficient operation of the courts and to prevent jury- 


 shopping by litigants, who would otherwise be able to choose between moving for  

              2            Harvey v. Cook, 172 P.3d 794, 802 n.46 (Alaska 2007) (quoting 4 C.J.S.                                          

Appeal and Error                      292 (2007)).     

              3            D.J.  v.  P.C.,  36  P.3d  663,  667-68  (Alaska  2001).  

              4            Id.  at  668  (quoting  Sosa  v.  State,  4  P.3d  951,  953  (Alaska  2000)).   

              5            See John's Heating Serv. v. Lamb, 46 P.3d 1024, 1044 (Alaska 2002) ("An  


inconsistent verdict argument must be raised before the jury is dismissed."); Nelson v.  


Progressive Corp., 976 P.2d 859, 863, 864 n.5 (Alaska 1999) ("[A] litigant waives his  


right to challenge the consistency of a jury's verdict if he fails to raise the issue and move  


for resubmission prior to the jury's  discharge."), (collecting cases); City of Homer  v.  


Land's End Marine, 459 P.2d 475, 480 (Alaska 1969) (holding that appellant "waived  


the right to challenge the consistency of the answers and the verdict when its counsel  


failed to raise the question prior to the discharge of the jury").  


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resubmission to the same jury or, by remaining silent, seeking a new trial before a new                                               



             Because we conclude the Smalls did not raise the consistency issue prior to the  


jury's discharge, their claims are waived.  


                      With respect to Kenisha's verdict, the Smalls do not assert that they raised  


the consistency issue at trial, nor do they offer any argument for why they did not waive  


this claim.  Accordingly, Kenisha's claim is waived.  


                      With respect to Travis's verdict, the Smalls argue that before the verdict  


was read, they raised the issue that an award of pain and suffering without medical  


expenses would be inconsistent, and that the trial court ruled that it would not be.  Due  


to this alleged prior ruling, the Smalls argue that they were not required to raise the  


consistency issue again after the verdict was read to preserve the claim for appeal.  


                      The Smalls overstate the nature of a short discussion that occurred before  


the jury delivered the verdicts and ignore an opportunity to raise the issue after the  


verdicts were read.  A few minutes before the jury returned, Sayre's attorney told the  


judge and the Smalls' attorney that the verdict would be inconsistent if the jury awarded  


damages for medical expenses without awarding damages for pain and suffering.  The  


 Smalls' attorney then asked, "What happens if it's the opposite?  Let's say they just  


award pain and suffering, does there have to be a medical then?"  Both Sayre's attorney  


and the judge replied "No," and the Smalls' attorney simply responded "Okay."  After  


the verdicts were read, the court asked, "And I believe these are consistent verdicts;  


correct, Counsel?"   Sayre's attorney answered, "Yes, Your Honor."   The transcript  


indicates - and the Smalls do not argue otherwise  - that the Smalls' attorney did not  





                      Nelson, 976 P.2d at 863-64.  

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                                                            The Smalls argue that the first discussion "placed the specific issue before                                                                                                                                                                                                                           

 the trial court" that there could be an award of pain and suffering damages without an                                                                                                                                                                                                                                                                                             

 award   for   medical   expenses  and  that   the   court   "ruled   that   such   a   verdict   was   not  

 impermissibly inconsistent over the objection of [the Smalls'] attorney," thus preserving                                                                                                                                                                                                                                                       

 the issue for appeal.                                                                     They conclude that they were not required to raise the issue of an                                                                                                                                                                                                                       

 inconsistent verdict again after the verdict was read.                                                                                                                                                                                  

                                                            But the trial court issued no ruling on the inconsistency of the verdict; the                                                                                                                                                                                                                                        

  Smalls' attorney did not properly challenge the verdict and the court therefore had no                                                                                                                                                                                                                                                                                           

 opportunity to rule on the issue.  The potential inconsistency was discussed                                                                                                                                                                                                                                                                    before  the  

jury rendered its verdict; to elicit a ruling on the consistency of a verdict, the Smalls                                                                                                                                                                                                                                                                       

 would have needed to raise the issue of consistency                                                                                                                                                                                             after   the verdict was rendered,                                                                  

                                                                                                                                                                                                                                                                                                                                   7        Instead, the  

 provide a clear statement of grounds for objection, and insist on a ruling.                                                                                                                                                                                                                                                                                                     

  Smalls' attorney asked a hypothetical question unmoored from the facts of this case. He  


 did not challenge the judge's reply that such a verdict would not be inconsistent, let alone  


 explain his reasoning or formally raise the issue despite several opportunities to do so.  


 Thus, the record does not support the Smalls' claim on appeal that there was a definitive  


 ruling on the consistency issue "over the objection of [the Smalls'] attorney."  Rather,  


                               7                            Stephanie W. v. Maxwell V.                                                                                                       , 319 P.3d 219, 225 (Alaska 2014)                                                                                                                                  ("[T]o  

 preserve an issue for appeal, appellants 'must show they raised the issue below.' "                                                                                                                                                                                                                                                                                                    

 (quoting  Stadnickyv.SouthparkTerraceHomeowner's                                                                                                                                                                                               Ass'n, 939P.2d                                                       403, 405                               (Alaska  

  1997)));  Davison v. State                                                                                   , 282 P.3d 1262, 1267 (Alaska 2012) ("To preserve an issue for                                                                                                                                                                                                     

 appeal, a party must clearly state the grounds for his objection 'so that the [superior]                                                                                                                                                                                                                                                         

 court   may   intelligently   rule   upon   the   objection.'   "   (alteration   in   original)   (quoting  

  Williams v. State                                                        , 629 P.2d 54, 62 (Alaska 1981))). The Smalls argue that it would have                                                                                                                                                                                                                         

 been futile to raise the inconsistency issue after the verdict was rendered given the earlier                                                                                                                                                                                                                                                                     

 discussion. But a discussion is not a ruling, and, with respect to this issue, their attorney                                                                                                                                                                                                                                                             

 did not at any point "insist[] on a ruling before the court entered final judgment."                                                                                                                                                                                                                                                                              Kenai  

  Chrysler Ctr., Inc. v. Denison                                                                                                          , 167 P.3d 1240, 1262 (Alaska 2007).                                                                                                                                            Therefore, the   

  Smalls "forfeit[] the right to appeal" the consistency issue.                                                                                                                                                                                                       Id .  

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the record shows that the court did not rule on the consistency issue because the attorney                                                                                                            

never properly raised it before the court.                                                              Accordingly, we conclude that Travis' claim                                                          

is also waived.     

                 B.	              The Trial Court's Failure To Raise The Inconsistent Verdict Issue Sua                                                                                                          

                                  Sponte Was Not Plain Error.                                  

                                  When, as here, an appellant did not raise and litigate a claim before the trial                                                                                                


court, the claim can survive on appeal only if this court finds plain error.                                                                                                                         

                                                                                                                                                                                      "This standard  



imposes a heavy burden on appellants . . . ."                                                                         We conclude that the trial court did not  


plainly err in failing to vacate the jury verdicts sua sponte and grant a new trial because  


no "obvious mistake has been made" that would "create[] a high likelihood that injustice  



has resulted." 


                                  We see no obvious mistake in the jury's decision to award Kenisha past  


medical expenses and past pain and suffering without future medical expenses. The jury  


was instructed to award damages for a future medical expense only if the expense was  


reasonably necessary and reasonably certain to occur, and if the evidence provided a  


reasonable basis for estimating the amount of the expense. But the jury heard conflicting  


testimony as to the necessity of Kenisha's future surgery.  It would not be inconsistent  


for a jury to conclude that Kenisha was entitled to past medical expenses from the  


accident  but  that  her  future  medical  expenses  were  not  awardable  based  on  the  



                                  We also see no obvious mistake in the jury's decision to award Travis past  


pain and suffering without past medical expenses.  The jury was provided an exhibit  

                 8               D.J.  v. P.C.                 , 36 P.3d 663, 667-68 (Alaska 2001).                                          

                 9                Shields v. Cape Fox Corp.                                          , 42 P.3d 1083, 1087 (Alaska 2002).                                        



                                 D.J., 36 P.3d at 668.  

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showing all of Travis's past medical expenses, but the jury was told it could award only                                                                                    


a portion of these expenses.                                                                                                                                         

                                                                 The jury was also told that the non-awardable medical  


expenses were listed for consideration in awarding non-economic damages, such as pain  


and suffering.  Based on these instructions, it would not be inconsistent for the jury to  


concludethat Travis incurred non-economicdamages based solely on thenon-awardable  


medical expenses.  


              C.	           The Smalls Waived Their Argument That The Verdicts Were Against  


                            The Weight Of The Evidence Because They Did Not Challenge The  


                            Jury Verdicts Before The Trial Court.  


                            We have stated that "[w]here a challenge to the amount of damages has not  


been raised in the trial court, 'we may refuse to review the issue or we may, in our  



discretion, review the award.' "                                       The Smalls argue on appeal that the jury's failure to  


award any future damages to Kenisha is contrary to the weight of the evidence showing  


that she would need future surgery costing $61,000.  They further argue that the jury's  


failure to award past medical expenses to Travis is contrary to the weight of the evidence  


showing that Travis required and received medical treatment for his injuries caused by  


the accident.  But the record shows that the Smalls did not challenge the jury verdicts in  

              11            This is because the Smalls' insurer had already reimbursed a portion of                                                                              

Travis's past medical expenses and directed the Smalls not to pursue recovery from                                                                                         

Sayre.   See Ruggles ex rel. Estate of Mayer v. Grow                                                        , 984 P.2d 509, 512 (Alaska 1999).                          

              12            Dixon v. Blackwell, 298 P.3d 185, 189 (Alaska 2013) (quoting Murray v.  


Feight, 741 P.2d 1148, 1160 (Alaska 1987)).  


                                                                                        -8-	                                                                               7134

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any way, including motions for a directed verdict or a new trial.                                                                                                 Thus, the Smalls have                      

waived their right to direct review of the sufficiency of the jury verdicts.                                                                                    

                 D.	              The Verdicts Were Not So Grossly Inadequate As To Constitute Plain                                                                                                       


                                  When, as here, a challenge to the amount of damages has been waived at              

trial, we may nonetheless choose to "examine whether [the] 'damages awarded . . . were                                                                                                                     


 so grossly inadequate as to amount to a miscarriage of justice.' "                                                                                                                                              

                                                                                                                                                                        When doing so, we  


"necessarily   consider[]   hypothetical   explanations   for   the   jury's   determination.  



Otherwise, we would not be able to review verdicts at all."                                                                                           Applying this standard, we  


conclude that neither Kenisha's verdict nor Travis's was so grossly inadequate as to  


constitute plain error.  


                                  With respect to Kenisha's verdict,  the jury  heard  conflicting  evidence  


regarding both Kenisha's need for future back surgery and, if it were needed, whether  


that  need  was  caused  by  the  accident.                                                               Given  this  testimony,  the  jury  could  have  


reasonably concluded either that Kenisha did not need the surgery or that her need for  


the surgery was not caused by the accident. Accordingly, the jury's verdict declining to  


award future medical expenses was not grossly inadequate.  


                                  There was even stronger support for Travis's verdict.  First, the jury was  


instructed that it could award less than half of Travis's past medical expenses, but the  

                 13               This fact distinguishes the present case from                                                                 Grant v. Stoyer                        .   10 P.3d 594         

(Alaska 2000).                          In that case we reviewed the superior court's denial of the plaintiff's                                                                                 

motion to vacate the verdict and order a new trial.                                                                        Id . at 596. Because the Smalls did not                                               

move for a new trial, we apply the more stringent standard of                                                                                             Dixon .   298 P.3d at 189.                         

                 14              Dixon, 298 P.3d at 189 (quoting Heacock v. Town, 419 P.2d 622, 624  


(Alaska 1966)).  


                 15              Nelson v. Progressive Corp., 976 P.2d 859, 864 (Alaska 1999) (quoting  


Diamond v. Wagstaff, 873 P.2d 1286, 1290 (Alaska 1994)).  


                                                                                                         -9-	                                                                                               7134

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jury was told it could consider the total amount of medical expenses in its deliberations.                                                                                                                                                                                   

 This   instruction   alone   could   justify   a   verdict   awarding   pain   and   suffering   without  

 awarding any past medical expenses.                                                                                Second, the jury heard testimony about two prior                                                                                        

 car accidents and prior workplace and military service injuries for which Travis had                                                                                                                                                                          

 sought medical treatment before the accident; the jury could have attributed his ongoing                                                                                                                                                        

                                                                                                                                                                        16  Finally, the jury was presented  

 treatment to these prior injuries rather than the accident.                                                                                                                                                                                  

 with inconsistencies between the medical history that Travis claimed to have provided  


 to his doctors and the information contained in his medical records, which could have  


 created credibility issues reasonably leading the jury to reduce the award. Accordingly,  


 the verdict awarding past pain and suffering to Travis without awarding past medical  


 expenses was not grossly inadequate.  


 V.                  CONCLUSION  

                                          We  therefore  AFFIRM  the  trial  court's  judgment  upholding  the  jury  



                     16                   The   Smalls   argue   that   this   conclusion   would   violate   AS   09.17.080(a)  

 because the jury did not apportion damages between this accident and Travis's prior                                                                                                                                                                       

 accidents.   But AS 09.17.080(a) asks juries to apportion damages                                                                                                                                         between  parties, and   

 Sayre was the only party in this action.                                                           

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