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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas v. Archer (12/2/2016) sp-7136

Thomas v. Archer (12/2/2016) sp-7136, 384 P3d 791

           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                                       

RACHEL  L.  THOMAS  and                                         )  

STEVEN  N.  THOMAS,  husband                                    )          Supreme  Court  No.  S-15372  

and  wife,                                                      )  

                                                                )          Superior  Court  No.   1KE-10-00613  CI  

                                Appellants,                     )  


                                                                )          O P I N I O N  

                     v.                                         )  


                                                                )         No. 7136 -  December 2, 2016  


SARAH B. ARCHER and                                             )  


PEACEHEALTH MEDICAL                                             )  


GROUP d/b/a KETCHIKAN                                           )  

OB/GYN,                                                         )  


                                Appellees.                      )  



                        ppeal from the Superior Court of the State of Alaska, First  


                     Judicial District, Ketchikan, William B. Carey, Judge.  


                     Appearances:  C. Keith Stump, Port Angeles, Washington,  


                     for  Appellants.            Scott  J.  Gerlach  and  Donna  M.  Meyers,  


                     Delaney Wiles, Inc., Anchorage, for Appellees.  


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


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


                     MAASSEN, Justice.  



                     A woman was admitted to a hospital emergency room with pregnancy- 


related complications. The attending physician recommended that she be transported by  

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

medivac to a different facility. The woman and her husband informed the physician that                                                                                                                                                                                                                                                           

they needed their insurer's preauthorization for that course of action or they could be                                                                                                                                                                                                                                                               

personally liable for the costs. The physician allegedly promised to call the insurer and,                                                                                                                                                                                                                                                                          

if it would not approve the medivac, have the hospital bear the costs itself.                                                                                                                                                                                                                                                 But the   

physician failed to contact the insurer until much later, and the insurer declined coverage.                                                                                                                                                                                                                                                                        

                                                       The couple sued the physician and the hospital, alleging that the physician                                                                                                                                                                                       

breached her fiduciary duty by failing to obtain preauthorization as promised; that her   

promise created an enforceable contract, which was breached; and that if there was no                                                                                                                                                                                                                       

contract the physician's promise should be enforced through the doctrine of promissory                                                                                                                                                                                                                            

estoppel.   The superior court granted summary judgment to the physician and hospital.                                                                                                                                                                                                                                                                              

The couple appeals.                             

                                                      We hold that the superior court did not err when it ruled in favor of the                                                                                                                                                                                                                    

physician and hospital on the claims for breach of fiduciary duty and breach of contract,                                                                                                                                                                                                                                    

but that genuine issues of material fact precluded summary judgment on the claim for                                                                                                                                                                                                                                                                

promissory estoppel.                                                                   We therefore reverse and remand for further proceedings.                                                                                                                                                                                         

II.                        FACTS AND PROCEEDINGS                                       

                           A.                          Facts  

                                                      Rachel Thomas was admitted to the emergency room at Ketchikan General                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                    1        She was seen by Dr.  

Hospital in October 2008 for pregnancy-related complications.                                                                                                                                                                                                                                                                                     

 Sarah B. Archer, who determined that Rachel was at risk of premature delivery and  


needed an immediate transfer to a facility better equipped to handle her condition.  


Because of weather conditions in Anchorage, Dr. Archer recommended that Rachel be  


medivacked to Swedish Medical Center in Seattle. According to the Thomases, they told  




                                                       Ketchikan General Hospital is operated by PeaceHealth Medical Group,  


which also does business as Ketchikan OB/GYN.  

                                                                                                                                                                           -2-                                                                                                                                                               7136  

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

Dr. Archer they could not personally afford the medivac and needed preauthorization                                   

fromthe Ketchikan Indian Corporation Tribal                                           Health Clinic(KIC) and the Alaska Native                          

Medical Center (ANMC) before they could be covered for treatment outside of ANMC's                                                                 

                                        2    The Thomases allege  that Dr. Archer told them "she would  

Anchorage facilities.                                                                                                                                   

contact KIC, not to worry, that everything will be taken care of, and that if KIC didn't  


cover it 'we' will."   According to the Thomases, they understood "we" to mean the  




                         In  the  process  of  arranging  the  transfer,  Steven  Thomas  signed  an  


"Acknowledgment of Financial Responsibility," which cautioned that the Guardian  


Flight medivac charges could be significant.   Though naming KIC as the "Payment  


Source," Steven agreed to be personally responsible for any unpaid charges and to "save  


and hold the hospital harmless therefrom."  


                         The Thomases were eventually billed over $23,000 by Swedish Medical  


Center and over $69,000 by Guardian Flight, the medivac provider.   The Thomases  


sought payment from KIC and ANMC under their coverage plan but were denied for  


three stated reasons:   (1) they failed to request preauthorization within 72 hours of  


beginning treatment or of admission to the healthcare facility; (2) ANMC was "available  


and accessible to provide the necessary medical services to the patient"; and (3) the  


Thomases lacked a referral or authorization for the transfer from an ANMC physician.  


TheThomasesadmitknowingaboutthepreauthorization requirements andthatobtaining  


preauthorization was ultimately their responsibility; they allege, however, that they  


boarded the flight based on Dr. Archer's assurances that those requirements would be  


satisfied by someone else.  Dr. Archer did later write KIC and ANMC to explain her  




                         KIC acts as an agent for the Thomases' insurer, Contract Health Services  



                                                                               -3-                                                                              7136  

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decision to have Rachel transported to Seattle, but not until May 2009, over six months                                                              

after the transfer.               

             B.          Proceedings  

                         In   2010   the   Thomases   filed   suit  against   the   hospital   and   Dr.   Archer  


(collectively   "the   hospital")                                                                                                                 

                                                         alleging  breach  of  fiduciary  duty,  breach  of  contract,  



promissory estoppel,                      and negligent or intentional infliction of emotional distress.  The  


claims  were  all  based  on  Dr.  Archer's  alleged  promise  to  contact  the  Thomases'  


insurance providers and ensure coverage for the expenses related to Rachel's transport  


to and treatment in Seattle. The superior court granted summary judgment to the hospital  


on the Thomases' fiduciary duty claim, agreeing with the hospital's argument that a  


physician's fiduciary duty is limited to the context of medical treatment. The court later  


granted summary judgment to the hospital on the remaining claims, holding that the facts  


as alleged did not create an enforceable contract and that there was no actual promise to  


the Thomases or substantial change in position by the Thomases sufficient to support  


their promissory estoppel claim.  The court also dismissed the claims for negligent and  


intentional infliction of emotional distress, noting that the Thomases had agreed to  


withdraw them, although they had not yet done so, and had produced no evidence or  



legal authority to support the claims. 

             3           The hospital and the physician shared the same counsel and the same                                                             

litigation position on all issues.             

             4           The Thomases did not articulate a promissory estoppel claim as such until  


they filed their opposition to the hospital's motion for summary judgment on the breach  


of contract claim.  The superior court nonetheless considered the promissory estoppel  


claim as consistent with the Thomases' other claims.  


             5           The Thomases also withdrew their claim for the costs of the Guardian


Flight after confirming they had a separate insurance plan that covered the medivac.



                                                                               -4-                                                                       7136

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                                   The hospital moved for attorney's fees as the prevailing party, supporting                                                                                          

its motion with an affidavit that summarized its fees and offering to file itemized billing                                                                                                                       

records under seal for in camera review.                                                                         The Thomases opposed the motion.                                                                      The  

 superior court ordered the hospital to submit its billings for in camera review but did not                                                                                                                               

require that they be shared with the Thomases.  Following in camera review, the court                                                                                                                                                 

awarded the hospital approximately $25,000 in attorney's fees (20% of the total billings)                                                                                                                     

and over $6,000 in costs.                                           This appeal followed.             

III.              STANDARD OF REVIEW                               

                                   "We review grants of summary judgment de novo."                                                                                           6                                                  

                                                                                                                                                                                 "We 'will affirm a  


grant of summary judgment if the evidence in the record presents no genuine issue of  



material fact and the moving party is entitled to judgment as a matter of law.' " 


                                   Whether there is a fiduciary duty and whether promissory estoppel applies  


are both questions of law to which we apply our "independent judgment, adopting the  



rule of law that is most persuasive in light of precedent, reason, and policy." 



Thus, only the expenses of treatment at Swedish Medical Center remain at issue.  



                                    Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014)  


(citing Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013)).  

                  7                 Copper River Sch. Dist. v. Traw, 9 P.3d 280, 283 (Alaska 2000) (quoting  


Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)).  


                  8                Beal  v.  McGuire,  216  P.3d  1154,  1162  (Alaska  2009)  (citing K  & K  


Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 n.66 (Alaska 2003)) (fiduciary  


duty); Ross v. State, Dep't of Revenue, 292 P.3d 906, 909 (Alaska 2012) (citing Hidden  


Heights Assisted Living, Inc. v. State, Dep't of Health &Soc. Servs., Div. of Health Care  


Servs., 222 P.3d 258, 268 (Alaska 2009)) (promissory estoppel).  


                                                                                                              -5-                                                                                                     7136

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IV.          DISCUSSION  

                         The  Thomases  argue  three  substantive  points  on  appeal:                                                    (1)  that  the  


 superior court erred by deciding that Dr. Archer did not owe the Thomases a fiduciary  


 duty to contact KICfor authorization after having promised to do so; (2) that the superior  


 court erred by deciding on summary judgment that the parties' words and actions did not  


 create  an  enforceable  contract;  and  (3)  that  the  superior  court  erred  by  rejecting  


promissory estoppel as a basis for enforcement of Dr. Archer's alleged promise to the  




                         "Alaska Civil Rule 56 provides for judgment to be granted to a party where  


 'there is no genuine issue as to any material fact' and 'the moving party is entitled to  


judgment as a matter of law.' " 10                             "[A] party seeking summary judgment has the initial  


burden of proving, through admissible evidence, that there are no disputed issues of  


material fact and that [it] is entitled to judgment as a matter of law."11  


                                                                                                                               "Once the moving  


party has made that showing, the burden shifts to the non-moving party 'to set forth  


 specific facts showing that he could produce evidence reasonably tending to dispute or  


 contradict the movant's evidence and thus demonstrate that a material issue of fact  

                 12   The court "draw[s] all reasonable inferences in favor of the non[-]moving  

 exists.' "                                                                            

             9           The Thomases also appeal the superior court's award of attorney's fees and                                                        

 argue they should be awarded the costs and fees associated with appeal, but we do not                          

 find it necessary to reach these issues.                                

             10          Christensen, 335 P.3d at 517 (quoting Alaska R. Civ. P. 56(c)).  


             11          Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 n.25 (Alaska  


2008) (citing Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska  



             12          Christensen, 335 P.3d at 517 (quoting State, Dep't of Highways v. Green,  


 586 P.2d 595, 606 n.32 (Alaska 1978)).  


                                                                              -6-                                                                      7136

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party."             "We require only that the evidence proposed for trial must not be based entirely                                                               

 on 'unsupported assumptions and speculation' and must not be 'too incredible to be                                                                                          

                                                                    14  "After the court makes reasonable inferences from  

believed by reasonable minds.' "                                                                                                                                         

the evidence in favor of the non-moving party, summary judgment is appropriate only  


when no reasonable person could discern a genuine factual dispute on a material issue."15  


                            Accordingly, for purposes of our review of the superior court's decision on  


 summary judgment, we assume that Dr. Archer made the statement, as described by the  


 Thomases, "that she would contact KIC, not to worry, that everything will be taken care  


 of, and that if KIC didn't cover it 'we' will."  


              A.	           The Superior Court Did Not Err By Granting Summary Judgment To  


                            The Hospital On The Thomases' Fiduciary Duty Claim.  


                            TheThomases first arguethat thesuperior court erred by granting summary  


judgment on  the Thomases'  claim that Dr.  Archer  "owed  a fiduciary  duty  to  [the]  


 Thomases to contact KIC for authorization as she promised."  The superior court noted  


 in its order that "the parties do not dispute the existence of a fiduciary relationship, only  


the scope of the duties that relationship imposes."  The court cited two Alaska cases  


 discussing fiduciary duties16 and relied heavily upon an unpublished Ohio decision with  


 facts and arguments similar to those here, Northern Ohio Medical Specialists, LLC v.  


              13	           Greywolf v. Carroll                      , 151 P.3d 1234, 1240 (Alaska 2007).                            

              14            Christensen, 335 P.3d at 520 (first quoting                                            Peterson v. State, Dep't of Nat.                       

Res., 236 P.3d 355, 367 (Alaska 2010); then quoting                                                        Wilson v. Pollet                , 416 P.2d 381, 384             

 (Alaska 1966)).  


              15            Id. (internal citations omitted).  


              16            Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991);  Greater Area Inc. v.  


Bookman, 657 P.2d 828 (Alaska 1982).  


                                                                                      -7-	                                                                              7136

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Huston .    These precedents, the superior court decided, "indicate that the duties imposed                                                                             

by   the   physician-patient   fiduciary   relationship   should   be   kept   to   matters   involving  

medical treatment and advice, which are not at issue here."                                                                    The court observed that the                         

fiduciary   relationship   could   nonetheless   be   relevant   to   the   Thomases'  promissory  

estoppel claim as evidence of the reasonableness of their reliance on what the doctor told                                                                                       


                             We discussed the scope of a physician-patient fiduciary duty in                                                                         Pedersen  

                    18  The plaintiff brought a malpractice action against a hospital and the surgeons  

v.  Zielski.                                                                                                                                                           

who operated on him following a car accident; the trial court ruled that the action was  


barred by the statute of limitations.19                                              We reversed, holding that there were genuine  


issues of material fact as to whether the plaintiff's doctor should be estopped from  


relying on the statute of limitations when he failed to disclose to the patient that a likely  


cause of his permanent paralysis was the surgery rather than the underlying accident.20  


Of importance here, we explained why the physician-patient relationship gives rise to a  


fiduciary duty of full disclosure:  


                             The physician-patient relationship is one of trust.  Because  


                             the patient lacks the physician's expertise, the patient must  


                             rely on the physician for virtually all information about the  


                            patient's  treatment  and  health .                                            A  physician  therefore  


                             undertakes[] not only to treat a patient physically, but also to  


                             respond fully to a patient's inquiry about his treatment, i.e.,  


               17            No. E-09-13, 2009 WL 3683632 (Ohio App. Nov. 6, 2009).                                                             

               18            822 P.2d at 909.                     

               19           Id.  at 905.   

              20            Id. at 905, 908-09.  


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                                 to tell the patient everything that a reasonable person would                                                                        

                                 want to know about the treatment.[21] 


                                 In Northern Ohio Medical Specialists, the plaintiff, whose case had been  


dismissed on the pleadings, argued on appeal that he had pleaded "sufficient, operative  


facts to support recovery under his claims that a doctor, . . . [has] a fiduciary duty to  


submit claims to  an  insurance company  when  he promises  to  do  so."22                                                                                                                    The Ohio  


appellate court recognized that a fiduciary duty is "[a] duty to act for someone else's  


benefit, while subordinating one's personal interests to that of the other person."23                                                                                                                        But  


the court held that while "[a] physician undisputedly owes a fiduciary duty to his or her  


patient with respect to diagnosing and treating diseases and injuries," no such "duty  


extends beyond the medical relationship"; accordingly, the physician's fiduciary duties  


did not include submitting insurance claims after promising to do so.24  


                                 This  reasoning  is  consistent  with  our  description  of  the  physician's  


fiduciary duty in Pedersen . A physician's expertise in the practice of medicine is unique,  


respected,  and  highly  valued.                                                    The  patient,  lacking  that  expertise,  relies  on  the  


physician's judgment and care and is especially vulnerable to the physician's mistakes;  


                 21              Id.  at 909 (emphasis added; original emphasis omitted);                                                                                 see also Carson v.                       

Fine, 867 P.2d 610, 617 (Wash. 1994) (en banc) ("The [physician-patient fiduciary]                                                                                                            

relationship is predicated on                                        theproposition that thephysician has                                                      specialknowledgeand                            

skill in diagnosing and treating diseases and injuries and that the patient has sought and                                                                                                                    

obtained the services of the physician because of this expertise." (first citing 70 C.J.S.                                            

Physicians and Surgeons                                         58 (1987); then citing 61 A                                         M. J   UR. 2   D,  Physicians, Surgeons   

and Other Healers                                167 (1981))).     

                 22              2009 WL 3683632, at *1.  


                 23              Id.  at *2 (alteration in original) (quoting Fiduciary Duty, BLACK 'S   LAW  


DICTIONARY  (6th ed. 1990)).                           


                 24              Id.   (citing   Tracy v. Merrell Dow Pharm., Inc.                                                                    , 569 N.E.2d 875, 878-79                       

(Ohio 1991)).   

                                                                                                        -9-                                                                                               7136

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the law protects the patient's vulnerability by imposing on the physician a heightened                                                                    


duty of care              when the physician is acting within the scope of that expertise                                                                .    

                            At the heart of this case are two different statements attributed to Dr.  


Archer. The first and undisputed one is her recommendation that Rachel be immediately  


transported by medivac to a hospital that was better equipped to treat her pregnancy- 


related complications. The second is Dr. Archer's alleged promise that she would obtain  


preauthorization for the transport costs from the Thomases' insurance providers and that  


the costs would otherwise be covered by the hospital.   The first recommendation is  


plainly within the scope of Dr. Archer's fiduciary duty; determining whether a transport  


was necessary was a matter of medical expertise on which the Thomases had little choice  


but to rely.  The alleged promise regarding insurance and payment, on the other hand,  


did  not  stem  from  Dr.  Archer's  special  expertise  as  a  physician.                                                                        The  Thomases  


themselves knew about the preauthorization procedure, having followed it already that  


evening when Rachel was admitted to the emergency room. The Thomases did not need  


Dr. Archer's special expertise in order to understand the requirements of their insurance  


coverage and to obtain the required preauthorization.  


                            Becausethephysician-patient fiduciarydutyexiststoprotect thevulnerable  


patient relying on the physician's special expertise in medicine, a physician's promise  


              25            See, e.g.        ,  Brown v. Wells Fargo Bank, NA                                   , 85 Cal. Rptr. 3d 817, 835 (Cal.                       

App.   2008)   ("Fiduciary   obligations   'generally  come   into   play   when   one   party's  

vulnerability   is   so   substantial   as   to   give   rise   to   equitable   concerns   underlying   the  

protection afforded by the law governing fiduciaries.' " (quoting                                                                City of Hope              Nat'l Med.   

 Ctr.   v.   Genentech,   Inc.,   181   P.3d   142,   152 (Cal.                                           2008))); Dayna                     Bowen   Matthew,  

Defeating Health Disparities - A Property Interest Under the Patient Protection and                                                                

Affordable Care Act of 2010                                 , 113 W. V            A. L. R        EV. 31, 38 (2010) ("[I]n the physician-                    

patient relationship, superior expertise, knowledge, and skill                                                            placedoctorsin theposition              

of   fiduciaries,   and   the   dependent   vulnerability   of   patients  in   their   care   are   the  

beneficiaries [sic].").   

                                                                                     -10-                                                                              7136

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

 to obtain preauthorization of medical treatment for purposes of insurance coverage is                                                                                                                                                                                  

 outside the scope of the physician's fiduciary duty.                                                                                                          The superior court did not err when                                                           

 it granted summary judgment to the hospital on the Thomases' breach of fiduciary duty                                                                                                                                                                          


                     B.	                  The Superior Court Did Not Err By Granting Summary Judgment To  


                                          The Hospital On The Thomases' Breach Of Contract Claims.  


                                          The Thomases also challenge the superior court's conclusion on summary  


judgment that Dr. Archer's alleged promise about insurance and payment did not give  


 rise to an enforceable contract. The court decided that "[t]he most apparent shortcoming  


 of the alleged contract is the lack of consideration" because in response to Dr. Archer's  


 alleged  promise  the  Thomases  "made  no  return  promise,  and  [the  hospital]  sought  




                              The court rejected the Thomases' contentions that return consideration could  


 be found in either (1) the detriment to them when they failed to get preauthorization or  

                     26                   We   also   reject   the   Thomases'   argument   that   Dr.   Archer's   statements  

 expanded the scope of what in normal circumstances would be the ordinary physician-                                                                                                                                                         

 patient fiduciary duty limited to medical matters.                                                                                                            If Dr. Archer's promise to obtain                                                         

 preauthorization created a duty to act, it was not a duty based on her special expertise as                                                                                                                                                                           

 a physician.                            

                                          The Thomases also argue, most extensively in their reply brief, that by                                                                                                                                                    

 making the alleged promise Dr. Archer agreed to act as their agent, thus creating another                                                                                                                                                            

 type of fiduciary duty.                                                      But the Thomases did not advance an agency theory in the                                                                                                                             

 superior   court,   instead   focusing   exclusively   on   the   fiduciary   duty   inherent   in   the  

 physician-patient relationship.                                                                 "It is well established that matters not raised at trial will                                                                                                    

 not be considered on appeal."                                                              Doyle v. Doyle                                , 815 P.2d 366, 372 (Alaska 1991) (quoting                                                               

Brooks v. Brooks                                      , 733 P.2d 1044, 1053 (Alaska 1987)).                                                            

                     27                   "The formation of an express contract requires an offer encompassing its  


 essential terms, an unequivocal acceptance of the terms by the offeree, consideration[,]  


 and an intent to be bound."  Municipality of Anchorage v. Stenseth, 361 P.3d 898, 906  


 (Alaska 2015) (alteration in original) (quoting Childs v. Kalgin Island Lodge, 779 P.2d  


 310, 314 (Alaska 1989)).  


                                                                                                                                 -11-	                                                                                                                        7136

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

(2)  the benefit to the hospital when the medivac to Seattle relieved it of the responsibility                                                                                                                        

of caring for Rachel and the risk that she would lose her unborn child while in the                                                                                                                                                                 

hospital's care. We agree with the court's conclusion that the alleged contract failed for                                                                                                                                                            

lack of consideration.     

                                       "We have held that '[t]o constitute consideration, a performance or a return                                                                                                                       

promise must be bargained for. . . .                                                               A performance or return promise is bargained for if                                                                                                    

it is sought by the promisor in exchange for his promise and is given by the promisee in                                                                                                                                                                

                                                                                     28   As the superior court reasoned, there is no evidence that  

exchange for that promise.' "                                                                                                                                                                                                                      

the hospital sought a detriment to the Thomases as consideration for Dr. Archer's alleged  


promise.   While the Thomases' failure to obtain preauthorization is relevant to their  


claim for promissory estoppel, discussed below, it does not constitute bargained-for  



                                       As for the benefit to the hospital conferred by Rachel's departure, there is  


no evidence this benefit was bargained for either.  It is undisputed that the hospital did  


not  have  the  capability  to  manage  Rachel's  medical  needs  and  that  she  had  to  be  


transported somewhere else. Rachel testified that she would have followed Dr. Archer's  


medivac recommendation regardless of whether there was insurance coverage for it:  


"[M]y concern was not billing at that time.   It was immediate health."   Thus, even  


assuming that the Thomases' departure conferred a benefit on the hospital, the hospital  


received  no  benefit  in  exchange  for  Dr.  Archer's  alleged  promise;  relying  on  Dr.  


Archer's medical advice, the Thomases were going to leave anyway.  


                    28                 Askinuk Corp. v. Lower Yukon Sch. Dist.                                                                              , 214 P.3d 259, 267 (Alaska 2009)                                                

(alterations in original) (quoting                                                            Reust v. Alaska Petrol. Contractors, Inc.                                                                            , 127 P.3d 807,               

811 n.4 (Alaska 2005));                                               see also Baker v. Ryan Air, Inc.                                                          , 345 P.3d 101, 110 n.23 (Alaska                                       

2015)   ("To   constitute   consideration,   a   performance   or   a   return   promise   must   be  

bargained for." (quoting R                                                      ESTATEMENT   (SECOND)   OF   CONTRACTS    71(1) (A                                                                                                    M. L         AW  

INST . 1981))).  


                                                                                                                         -12-                                                                                                                  7136

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

                                            Because we agree with the superior court's conclusion that the alleged                                                                                                                                                 

contract lacked                                        the essential element of consideration, we do not address the other                                                                                                                                                

 elements required for the formation of an enforceable contract.                                                                                                                                                The superior court did                                           

not err by granting summary judgment on the breach of contract claim.                                                                                                                                                

                      C.	                   It   Was   Error   To   Grant  Summary   Judgment   On   The   Thomases'  

                                            Promissory Estoppel Claim.                                                 

                                            The Thomases next argue that the superior court erred when it                                                                                                                                      rejected their   

claim   that  "[i]f   the   parties   did   not   create   a   binding   contract,   their   agreement   is  

nevertheless enforceable by the doctrine of promissory estoppel."                                                                                                                                                        They argue that Dr.                                     

Archer's alleged promise induced them to leave the hospital immediately without their                                                                                                                                                                                        

insurer's preauthorization, that this was a foreseeable response to the promise, that                                                                                                                                                                                          

because they left the hospital without preauthorization they incurred substantial medical                                                                                                                                                                         

 expenses, and that the interest of justice is served by enforcing Dr. Archer's promise.                                                                                                                                                                                                       

They argue that, at a minimum, a jury should have decided this claim.                                                                                                                                                                    

                                            "The doctrine of promissory estoppel allows the enforcement of contract-                                                                                                                                           

like   promises   despite   a   technical   defect   or   defense   that   would   otherwise   make   the  


promise unenforceable."                                                                                                                                                                                                                                                

                                                                                            Promissory estoppel has these elements:  "1) [t]he action  


induced amounts to a substantial change of position; 2) it was either actually foreseen or  


reasonably  foreseeable  by  the  promisor;  3)  an  actual  promise  was  made  and  itself  


induced the action or forbearance in reliance thereon; and 4) enforcement is necessary  

                                                                                 30   The superior court, relying primarily on Sea Hawk Seafoods,  


in the interest of justice." 

                      29	                   Kiernan v. Creech                                            , 268 P.3d 312, 315 (Alaska 2012).                                                            



                                            Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006) (quoting Zeman  


v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska 1985)); see also Dick  


Fischer Dev. No. 2, Inc. v. Dep't of Admin., 838 P.2d 263, 268 (Alaska 1992) ("A  

promise which the promisor should reasonably expect to induce action or forbearance  


                                                                                                                                        -13-	                                                                                                                               7136

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Inc. v. City of Valdez                                                                    ,   held that Dr. Archer's "alleged promise [was] not 'definitive,'                                                                                                                                                            

 'clear,' or 'precise' " enough to constitute an "actual promise." The court discussed what                                                                                                                                                                                                                                                             

 it perceived to                                                  be "the lack                                                of clarity in                                         the alleged oral promises and the lack of                                                                                                                                   

unequivocal   acceptance,"   noting   "[Steven's]   signature   on   the   Acknowledgment   of  

Financial Responsibility and [Rachel's] deposition testimony that . . . she would have                                                                                                                                                                                                                                                                 

taken the flight to Swedish even if it was not covered."                                                                                                                                                                                 The court concluded that even                                                                                 

 if all other elements of promissory estoppel were met, the Thomases "fail to show a                                                                                                                                                                                                                                                                                  

 substantial change in position" because of Rachel's testimony that she "would have gone                                                                                                                                                                                                                                                               

to Swedish even if she knew the [medivac] would not be covered."                                                                                                                                                                                 

                                                        We conclude that there are genuine issues of material fact about whether                                                                                                                        

the elements of the doctrine were met. It was therefore error to grant summary judgment                                                                                                                                                                                                                                             

 on the Thomases' promissory estoppel claim.                                                                                                                                                      

                                                         1.                         Whether there was a substantial change of position                                                                                                                                               

                                                         "Whether particular actions represent substantial changes [in position] is                                                                                                                                                                                                                                 

 a   question   of   all   the   circumstances   and   is   not   determinable   by   reference   to   a   set  

                                         32   Courts tend to "look for evidence of actual and substantial economic loss."33  




 on the part of the promisee or a third person and which does induce such action or  


 forbearance is binding if injustice can be avoided only by enforcement of the promise."  

                                              ESTATEMENT  (SECOND) OF  CONTRACTS    90(1) (A                                                                                                                                                                     M. L               AW  INST . 1981))).   

 (quoting R 

                            31                           282 P.3d 359 (Alaska 2012).  




                                                        Zeman, 699 P.2d at 1284 (citing 1A A. C                                                                                                                                        ORBIN, C                               ORBIN ON                                 CONTRACTS  

  200, at 216 (1963)).                                  

                            33                          Id.  (first citing                                           Weiner v. Romley                                                           , 381 P.2d 581, 583-84 (Ariz. 1963); then                                                                                                                

 citing  Brand S Corp. v. King                                                                                            , 639 P.2d 429 (Idaho 1981)).                                                                

                                                                                                                                                                              -14-                                                                                                                                                                     7136

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                                                                   In deciding that the "substantial change in position" element was not met,                                                                                                                                                                                                                                                                              

the superior court relied on the Thomases' concession that they would have followed Dr.                                                                                                                                                                                                                                                                                                                                          

Archer's advice regardless of whether they had insurance coverage.                                                                                                                                                                                                                                                                                  Rachel testified at                                                                

her deposition that "[a]t this point, [she] would have gone anywhere to save [her unborn]                                                                                                                                                                                                                                                                                                                

 son's life." She continued: "I mean, had [Dr. Archer] said you need to go to Anchorage,                                                                                                                                                                                                                                                                                               

I would have gone to Anchorage.                                                                                                                                           She said, you need to go to Seattle, so I am going to                                                                                                                                                                                                        

 Seattle."    When asked whether she would have agreed to be transported to Seattle "if                                                                                                                                                                                                                                                                                                                                            

 [she] felt that it would have saved [her] son's life" even if there was no insurance                                                                                                                                                                                                                                                                                                         

coverage for it, she responded, "Again, my concern was not billing at that time.                                                                                                                                                                                                                                                                                                                               It was   

immediate health." This testimony, the superior court concluded, demonstrated that the                                                                                                                                                                                                                                                                                                                                            

Thomases did not substantially change their position based on Dr. Archer's alleged                                                                                                                                                                                                                                                                                                                         


                                                                   But while there is no dispute that the Thomases would have flown to Seattle                                                                                                                                                                                                                                                                  

regardless ofinsurancecoverage,                                                                                                                                      questions of fact remain because                                                                                                                                of their assertions that                                                                  

they   would have called their insurance providers for preauthorization had they not                                                                                                                                                                                                                                                                                                                                           

believed that Dr. Archer was going to do so.                                                                                                                                                                                     A reasonable person could conclude that                                                                                                                                                      

the Thomases substantially changed their position in reliance upon Dr. Archer's alleged                                                                                                                                                                                                                                                                                                                      

promise by failing to do what they otherwise would have done.                                                                                                                                                                                                                                   

                                                                   2.                               Whether the change in position was foreseeable                                                                                                                                                   

                                                                   "According to Corbin on Contracts, '[f]oreseeability of reliance raises a                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                             34                  The  superior  court  did  not  address  the  

question   of   fact   for   court   and   jury.'   "                                                                                                                                                                                                                                                                                                                                                                         

 foreseeability prong in its order on summary judgment, nor does the hospital address it  


on appeal, focusing its analysis instead on the elements of changed position and actual  


                                  34                               Simpson, 129 P.3d at 441  (alteration in original) (quoting C 

                                                                                                                                                                                                                                                                                                                                                                                                ORBIN   ON  

 CONTRACTS, supra note 32, at 216).  


                                                                                                                                                                                                               -15-                                                                                                                                                                                                      7136  

----------------------- Page 16-----------------------

promise. We conclude that a reasonable person, when viewing the circumstances of Dr.                                                                                                                                                      

Archer's alleged promise - including that it was made by a treating physician in the                                                                                                                                              

context of a medical emergency - could find it was reasonably foreseeable that the                                                                                                                                                        

Thomases would rely on the promise and not seek preauthorization themselves.                                                                                                                                                      

                                      3.                Whether there was an actual promise                                                      

                                      The superior court's rejection of the Thomases' promissory estoppel claim                                                                                                                     

rested primarily on its conclusion that there was no "actual promise" on which the                                                                                                                                                        

Thomases  were   entitled   to   rely.     "When   a   promissory   estoppel   claim   is   made   in  

conjunction with a breach of contract claim, the 'actual promise' element of promissory                                                                                                                             


estoppel is 'analytically identical to' the ' "acceptance" required for a contract.' "                                                                                                                                                               


"Were it otherwise, promissory estoppel . . . would become a device by which parties  

                                                                                                                                       36       "An 'actual promise' is one that is  


could be held to contracts they did not accept." 

                                                                                                                                                                              37   "[A] promise . . . must  

 'definitive, . . . very clear, . . . and must use precise language.' " 



 'manifest an unequivocal intent to be bound.' " 


                                      The superior court, in deciding that there was no actual promise, relied on  


Sea Hawk Seafoods, Inc. v. City of Valdez, in which we reversed the trial court's denial  


of summary judgment to Valdez on Sea Hawk's promissory estoppel claim.39                                                                                                                                                       Valdez  


                   35                 Valdez Fisheries Dev. Ass'n v. Alyeska PipelineServ. Co.                                                                                                     ,45       P.3d 657, 668               

(Alaska 2002) (quoting                                             Brady v. State                           , 965 P.2d 1, 11 (Alaska 1998)).                                     

                   36                Id.  

                   37                Safar v. Wells Fargo Bank, N.A., 254 P.3d 1112, 1119 (Alaska 2011)  


(alterations in original) (quoting Alaska Trademark Shellfish, LLCv. State, Dep't of Fish  


& Game, 172 P.3d 764, 767 (Alaska 2007)).  


                   38                Id. (quoting Alaska Trademark Shellfish , 172 P.3d at 767).  


                   39                 282 P.3d 359, 361-62 (Alaska 2012).  


                                                                                                                    -16-                                                                                                             7136

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

had made oral promises to Sea Hawk that it would submit a grant application for funds,                                                                  

which it would then turn over to Sea Hawk to pay for the conversion of one of Sea                                                                            

                                                       40   Valdez confirmed these promises in a letter, indicating  

Hawk's processing facilities.                                                                                                                    

that it was in  the process of finalizing  the application  but  that  a  number  of issues  


remained to be resolved before it would accept the grant.41  After the grant application  


was tentatively approved, Valdez sent Sea Hawk another letter reiterating that it would  


not accept the grant until it had reached an agreement with Sea Hawk.42                                                                       The parties  


could not agree and Valdez did not accept the grant, prompting Sea Hawk's suit.43  


                         The superior court in this case noted our holding in Sea Hawk that Valdez's  


"alleged  oral  promises  were  not  sufficiently  'definitive,'  'clear,'  and  'precise'  to  


constituteanactualpromise,particularly when considered in conjunction with [Valdez's]  


             44      The  court  reasoned  that  because  "[t]he  language  of  [Valdez's]  alleged  


promises [in Sea Hawk] . . . was more certain than in the present case," Dr. Archer's  


alleged promises could not be considered precise enough to constitute an actual promise.  


                         We do not consider Sea Hawk controlling. Valdez's oral offer in Sea Hawk  


identified "three conditions prior to submitting the Sea Hawk grant application," and its  


later confirming letter again noted those "conditions, informing Sea Hawk these issues  


would need to be resolved before Valdez accepted the grant funds, and stating the parties  


would need to enter [into] an agreement once the State decided whether to award Valdez  


             40          Id.  at 362.

             41          Id.



                         Id. at 363.  



                         Id. at 361, 363.  

             44          Id.  at 367.   

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the grant."             We therefore held that "even assuming [Valdez] made such promises, [it]                                                      

 alerted [Sea Hawk] that Valdez would not accept the grant                                                   unconditionally   and then   

                                                                                                                 46   The promises in that  

 specifically outlined those conditions in the [confirming] letter."                                                                                

 caseinstead "demonstrate[d][that]Valdezcontemplated enteringintoafutureagreement  


with Sea Hawk addressing various issues."47  


                        The alleged promise at issue in this case, unlike the promises in Sea Hawk,  


was not expressly conditional.  As the Thomases describe Dr. Archer's promise, it gave  


no  indication that it depended on the outcome of future negotiations.   The alleged  


promise defined Dr. Archer's role - she would contact the insurers if the Thomases  


boarded the medivac plane immediately - and it defined the Thomases' role - they  


would  board  the  plane  without  taking  time  to  contact  their  insurers.                                                     Because  the  


 evidence could support a conclusion that the Thomases unequivocally accepted a clear  


 offer, a reasonable person could conclude that there was an "actual promise."48  


                        4.	         Whether enforcement of the promise is necessary in the interest  


                                    of justice  


                        "The fourth requirement, that enforcement is necessary in the interest of  


justice,  presents  fact  questions  that  ordinarily  should  not  be  decided  on  summary  


            45          Id.  at  366.  

            46          Id.  at  366-67  (emphasis  added).  

            47          Id.  at  365.  

            48          The superior court relied on Steven's signing of the Acknowledgment of  

Financial  Responsibility  as  evidence  that  the  Thomases  were  willing  to  assume  personal  

liability  for  Rachel's  treatment.   But  this  evidence  is  subject  to  different  interpretations  

 considering   the   emergency   circumstances   and   Steven's   designation   of   KIC   as   the  

 "payment  source,"  which  is  consistent  with  the  Thomases'  claim  that  they  were  relying  

 on  Dr.  Archer  to  contact  their  insurers.    

                                                                         -18-	                                                                   7136

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


judgment."                    This is a fact-intensive analysis in which reasonable people could reach                                                                         

 different conclusions.                           

                             Because the Thomases identified issues of fact that precluded summary                                                                    

judgment, it was error to grant the hospital's motion on the Thomases' promissory                                                                                

 estoppel claim.   

V.             CONCLUSION  

                             We  AFFIRM the  superior  court's  grant  of  summary  judgment  on  the  


 Thomases' fiduciary duty and breach of contract claims.  We REVERSE the superior  


 court's grant of summary judgment on the Thomases' promissory estoppel claim and  


 REMAND for further proceedings consistent with this opinion. The award of attorney's  


 fees to the defendants as prevailing parties is accordingly VACATED.50  


               49            Reeves v. Alyeska Pipeline Serv. Co.                                          , 926 P.2d 1130, 1142 (Alaska 1996)                                

 (citing  State v. First Nat'l Bank of Ketchikan                                                 , 629 P.2d 78, 82 n.4 (Alaska 1981)).                           

               50            Though we vacate the attorney's fees award, we note our concern with the  


 superior court's award of attorney's fees to the hospital following in camera review of  


 itemized billing records that were not made available to the Thomases.  We have held  


that "where the rule authorizes reasonable actual fees, a court may not award attorney's  


 fees to a party who has not itemized his or her requested fees, when the opposing party  


has requested such itemization."  Roderer v. Dash, 233 P.3d 1101, 1113 (Alaska 2010)  


 (quoting Marron v. Stromstad, 123 P.3d 992, 1014 (Alaska 2005)). The reasonableness  


requirement of Alaska Civil Rule 82 is best met by allowing a party who may be ordered  


to pay attorney's fees to review the other party's time and billing records.  


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