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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gregory Kisling v. Paul Grosz, Paul Grosz v. Gregory Kisling (3/14/2025) sp-7754
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
GREGORY KISLING, )
) Supreme Court Nos. S-18699/18709
Appellant and ) (Consolidated)
Cross-Appellee, )
v. ) Superior Court No. 3AN-19-07293 CI
)
PAUL GROSZ, ) O P I N I O N
)
Appellee and ) No. 7754 - March 14, 2025
Cross-Appellant. )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Josie Garton, Judge.
Appearances: Alfred Clayton, Jr., Clayton & Diemer, LLC,
Anchorage, for Appellant and Cross-Appellee. Jeffrey J.
Barber, Barber & Associates, LLC, Anchorage, for Appellee
and Cross-Appellant.
Before: Maassen, Chief Justice, and Borghesan, Henderson,
and Pate, Justices. [Carney, Justice, not participating.]
MAASSEN, Chief Justice.
INTRODUCTION
A jury in a personal injury case found that the plaintiff had suffered $1.2
million in noneconomic damages but also that the defendant was only 25% at fault for
the injuries; the remaining 75% was the plaintiff's own comparative fault. On post-trial
motions the superior court first applied the comparative fault percentages to find that
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the defendant owed $300,000 (25% of $1.2 million), then turned to the statutory
damages caps of AS 09.17.010(b), which in the circumstances of this case limited
recovery of noneconomic damages to $400,000. Because the amount awarded to the
plaintiff was under the statutory cap, the court did not reduce it further.
On appeal, the defendant contends that the sequence should have been
reversed; that is, that the superior court should first have reduced the noneconomic
damages to the $400,000 cap, then applied the comparative fault percentages to that
capped amount, for an award to the plaintiff of $100,000 (25% of $400,000).
Considering the statutory language, legislative history, policy, and
precedent, we are persuaded that the superior court's decision was correct. It properly
respected both the jury's role as fact finder - deciding the actual loss - and the
legislative policy choice to cap the defendant's exposure at a certain amount regardless
of that actual loss. We conclude that a court must first allocate fault before deciding
whether a damages cap applies; if the allocation of fault results in an award below the
statutory cap, the law requires no further reduction.
FACTS AND PROCEEDINGS
A. Facts
Paul Grosz was injured while helping his friend Gregory Kisling hang a
crucifix on the wall above a staircase in Kisling's home. Grosz was standing on a
"walking plank," or homemade scaffolding, when the wire holding the crucifix broke,
and both Grosz and the artwork fell to the ground. Grosz's injuries included broken
ribs, a spinal fracture, and a traumatic brain injury.
B. Proceedings
Grosz sued Kisling for negligence. Trial resulted in a jury verdict of $1.2
million for past and future noneconomic loss, twice what Grosz had asked for. The jury
also found, however, that Kisling was only 25% at fault for the accident; the jury
allocated the other 75% of fault to Grosz himself.
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After the verdict was read, Grosz asked the superior court to allow another
question to be submitted to the jury: whether his injuries amounted to "severe
permanent physical impairment or severe disfigurement" justifying application of the
higher of two statutory caps on noneconomic damages.1 The court rejected the request
and said it would "address [the issue] in a post-verdict motion."
1. Relevant statutory framework
Allocation of fault in personal injury cases and noneconomic damages
caps are addressed in statute. Alaska Statute 09.17.010(a) provides that "[i]n an action
to recover damages for personal injury or wrongful death, all damage claims for
noneconomic losses shall be limited to compensation for pain, suffering,
inconvenience, physical impairment, disfigurement, loss of enjoyment of life, loss of
consortium, and other nonpecuniary damage." Subsection (b) of the statute places a
cap on those kinds of damages: "[T]he damages awarded by a court or a jury under (a)
of this section for all claims, including a loss of consortium claim, arising out of a single
injury or death may not exceed $400,000 or the injured person's life expectancy in years
multiplied by $8,000, whichever is greater." And subsection (c) of the same statute
provides a higher cap for cases "when the damages are awarded for severe permanent
physical impairment or severe disfigurement": "$1,000,000 or the person's life
2
expectancy in years multiplied by $25,000, whichever is greater."
Other statutes address the allocation of fault among parties. Alaska
Statute 09.17.060 provides that the "contributory fault chargeable to the claimant
diminishes proportionately the amount awarded as compensatory damages for the
injury attributable to the claimant's contributory fault, but does not bar recovery."
Alaska Statute 09.17.080(a) provides that when more than one person is found to be at
1 See AS 09.17.010(b)-(c).
2 AS 09.17.010(c).
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fault, the fact finder must indicate "(1) the amount of damages each claimant would be
entitled to recover if contributory fault is disregarded; and (2) the percentage of the total
fault that is allocated to each claimant, defendant, . . . or other person responsible for
the damages." Subsection (c) of the same statute requires the court to "determine the
award of damages to each claimant in accordance with the findings and enter judgment
against each party liable," while also indicating "in the judgment each party's equitable
share of the obligation to each claimant in accordance with the respective percentages
of fault as determined under (a) of this section."
2. Post-trial dispute over which comes first: allocation of fault or
application of damages caps
The parties filed post-trial memoranda disputing the application of
damages caps to Grosz's recovery. Kisling argued that the court should first apply the
cap of AS 09.17.010(b) to reduce the jury's $1.2 million verdict to $400,000, and only
then apply the apportionment-of-fault percentages as required by AS 09.17.080; this
would result in a recovery for Grosz of $100,000, 25% of $400,000. Grosz, on the other
hand, argued that the higher $1,000,000 cap of AS 09.17.010(c) should apply because
the jury had heard "substantial evidence that [his] symptoms are severe and permanent."
As for sequencing, Grosz argued that the court should first apply the apportionment
percentages before deciding whether any cap should apply; this would result in a
recovery for Grosz of $300,000 - 25% of $1.2 million - which is below the lower
$400,000 damages cap and therefore not subject to any further reduction.
3. Superior court order
The superior court decided, first, that the relevant noneconomic damages
cap was the $400,000 cap of AS 09.17.010(b) rather than the $1,000,000 cap of
subsection (c). The court observed that Grosz, in seeking application of the higher cap,
was asking "the court to make a factual finding that he suffered severe and permanent
physical impairment," which was instead "an issue for the jury." The court concluded
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that "[b]ecause [Grosz] did not move for a directed verdict, or otherwise raise the issue
until after the jury returned its verdict, the issue was not properly raised or preserved."
The court then addressed the issue of sequencing, "a question of pure law"
that "require[d] the court to interpret and construe AS 09.17.010, AS 09.17.060 and
AS 09.17.080." The court decided that the statutory scheme was best accommodated
by looking first to the amount of damages allocated to each party at fault and only then
deciding whether a cap should apply. Because Kisling had been found 25% at fault -
for $300,000 of the $1.2 million verdict - the award of damages was under the
$400,000 cap and did not need to be reduced. Kisling filed a motion for reconsideration,
which was denied.
Kisling then filed this appeal. Grosz cross-appealed, contending that if
Kisling's sequencing was correct, the superior court erred by applying the lower,
$400,000 cap without first resolving the question whether he suffered the "severe
permanent physical impairment or severe disfigurement" that would trigger application
of the higher, $1,000,000 cap,3 either by submitting the question to the jury post-verdict
or by making its own finding of severity based on the evidence. Because our resolution
of Kisling's appeal does not trigger the application of any damages cap, we do not need
to reach Grosz's cross-appeal.
STANDARD OF REVIEW
4
Statutory interpretation presents questions of law that we review de novo.
"In conducting de novo review, we will 'adopt the rule of law that is most persuasive
5
in light of precedent, reason, and policy.' "
3 AS 09.17.010(c).
4 E.g., Rosauer v. Manos, 440 P.3d 145, 147 (Alaska 2019) (quoting
Madonna v. Tamarack Air, Ltd. , 298 P.3d 875, 878 (Alaska 2013)).
5 Id. (quoting State, Div. of Elections v. Green Party of Alaska, 118 P.3d
1054, 1059 (Alaska 2005)).
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DISCUSSION
Kisling contends that the superior court erred by applying the
apportionment-of-fault percentages pursuant to AS 09.17.080 before deciding whether
the damages cap of AS 09.17.010(b) should apply. But we agree with the court's
analysis and its conclusion that application of the damages caps comes after fault is
apportioned; the caps apply only to the amount for which the defendant would otherwise
be responsible.
A. The Statutory Language Does Not Command A Particular Result.
Our first task is to interpret the relevant statutes. "When interpreting a
statute, we consider its language, its purpose, and its legislative history, in an attempt
to give effect to the legislature's intent, with due regard for the meaning the statutory
language conveys to others."6 We start "with the text and its plain meaning, and we
use a 'sliding-scale approach' to interpret the language";7 in other words, "the plainer
the statutory language is, the more convincing the evidence of contrary legislative
purpose or intent must be."8 Even when using this sliding scale, "[b]asic principles of
statutory construction 'militate against interpreting a statute in a manner that renders
other provisions meaningless.' Contradictions should be harmonized."9 And because
6 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234 (Alaska
2003)).
7 Id. (quoting Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska
2012)).
8 Id. (alteration omitted) (quoting State v. Fyfe, 370 P.3d 1092, 1095
(Alaska 2016)).
9 Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd., 991
P.2d 202, 208 (Alaska 1999) (footnote omitted) (first quoting M.R.S. v. State , 897 P.2d
63, 66 (Alaska 1995); and then citing In re E.A.O. v. State, 816 P.2d 1352, 1357 (Alaska
1991)).
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AS 09.17.010 "is in derogation of the common law, we must construe it narrowly so as
10
to effect the least possible change in the common law."
Kisling argues that AS 09.17.010(b) unambiguously requires that Grosz's
recovery be limited to 25% of the $400,000 damages cap. He focuses on the statutory
phrase "damages awarded by a court or a jury" and argues that the phrase clearly shows
the legislature's intent that the cap be applied to the jury's entire verdict, whatever it is,
before that award is apportioned post-trial by percentages of fault or is otherwise
reduced to judgment. But such an intent is not clear to us from the statutory language;
another interpretation seems just as feasible if not more so.
In accordance with AS 09.17.080(a)11 and as reflected in Alaska's Civil
Pattern Jury Instructions,12 the jury in this case was not asked to "award damages" but
rather to answer specific questions posed by the special verdict form. One question
asked for "the total damages, if any, to the plaintiff that were caused by the negligence
of the defendant and the plaintiff"; the jury answered "$1.2 million." But the jury did
not purport to "award" that amount.13 Instead, in answer to the next question it went
on to allocate responsibility for those damages 75/25 between Grosz and Kisling. And
10 C.J. v. State, Dep't of Corr., 151 P.3d 373, 383 & n.52 (Alaska 2006)
(citing Univ. of Alaska v. Shanti, 835 P.2d 1225, 1228 n.5 (Alaska 1992)); see also
Common Law, BLACK 'S LAW DICTIONARY ( 12th ed. 2024) (defining "common law" as
"[t]he body of law derived from judicial decisions, rather than from statutes or
constitutions").
11 The statute provides that "[i]n all actions involving fault of more than one
person, . . . the court . . . shall instruct the jury to answer special interrogatories . . .
indicating (1) the amount of damages each claimant would be entitled to recover if
contributory fault is disregarded; and (2) the percentage of the total fault that is allocated
to each claimant [and] defendant."
12 See Alaska Pattern Jury Instructions - Civ. 3.21A, 3.21B, 3.21C.
13 Kisling's argument on this point would require us to conclude that the jury
"awarded" $300,000 to Grosz and "awarded" the remaining $900,000 to Kisling. This
strikes us as an unnecessarily tortured reading.
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that marked the end of the jury's task. Pursuant to AS 09.17.080(c), calculation of the
14
"award" was left to post-judgment motions an d court order.
We thus disagree with Kisling's contention that the relevant statutes
unambiguously require the court to apply the damages caps before apportioning fault,
as the statutes may be read as supporting the opposite sequence. For what clarification
they may give, we next "look to the purpose of the legislation and the legislative history
15
for indications of legislative intent."
B. Legislative History, Reason, And Precedent Support Apportioning
Fault Before Applying Damages Caps.
Former AS 09.17.010, enacted in 1986, imposed a cap of $500,000 on
noneconomic damages,16 but there was no cap on damages "for disfigurement or severe
physical impairment" until 1997,17 when the legislature amended AS 09.17.010.18 We
considered the constitutionality of the two damages caps in Evans ex rel. Kutch v.
14 See AS 09.17.080(c) ("The court shall determine the award of damages to
each claimant in accordance with the findings and enter judgment against each party
liable." (emphasis added)).
15 Murphy v. Fairbanks N. Star Borough , 494 P.3d 556, 566 (Alaska 2021)
(quoting Mun. of Anchorage v. Adamson, 301 P.3d 569, 576-77 (Alaska 2013)).
16 Former AS 09.17.010(b) (1986) ("The amount of damages awarded by a
court or jury under (a) of this section may not exceed $500,000 for each claim based on
a separate incident or injury.").
17 Compare former AS 09.17.010(c) (1986) ("The limit under [former
AS 09.17.010(b) (1986)] of this section does not apply to damages for disfigurement or
severe physical impairment."), with AS 09.17.010(c) ("In an action for personal injury,
the damages awarded by a court or jury that are described under (b) of this section may
not exceed $1,000,000 or the person's life expectancy in years multiplied by $25,000,
whichever is greater, when the damages are awarded for severe permanent physical
impairment or severe disfigurement.").
18 See ch. 26, § 9, SLA 1997.
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State.19 We recognized the "goals underlying the damages caps, as well as the rest of
chapter 26, SLA 1997," as including the following:
to (1) discourage frivolous litigation and decrease the costs
of litigation; (2) stop "excessive" punitive damages awards
in order to foster a "positive" business environment; (3)
control the increase of liability insurance rates; (4)
encourage "self-reliance and independence by underscoring
the need for personal responsibility"; and (5) reduce the cost
[20]
of malpractice insurance for professionals.
Kisling leans heavily on a general legislative intent to reduce damages
awards across the board, citing our statement in C.J. v. State, Department of Corrections
that "the legislature appears to have viewed large noneconomic damage awards as
susceptible to over-estimates of the dollar value of a victim's noneconomic loss."21 He
aptly acknowledges that the "legislature expressed a limitation on the plaintiff's
recovery for an injury" and that "[e]xcessive damage awards increased insurance
premiums and the cap was intended to reduce insurance premiums." He contends that
the legislature was particularly concerned about "predictability, which is to say, a
limitation on what is essentially unlimited, mainly[] non-economic damages." Grosz
agrees that "[t]he legislative history describes an intent to reduce insurance rates," but
he argues that this intent "does not support [a] broad interpretation to further reduce a
defendant's liability to amounts significantly lower than the stated caps," as would
happen in his case under Kisling's interpretation.
We agree that the legislature intended to limit a defendant's exposure and
thus a plaintiff's recovery. But we also agree with Grosz on the application of this
limitation; namely, that the statutory text and the legislative history do not show an
19 56 P.3d 1046, 1049-57 (Alaska 2002) (plurality opinion).
20 Id. at 1053 (footnotes omitted) (quoting ch. 26, § 1, SLA 1997).
21 151 P.3d 373, 381 (Alaska 2006).
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intent to require reductions below the statutory cap. The legislative goals of
predictability and reining in "unlimited . . . non-economic damages" are served when a
defendant's exposure, and a plaintiff's recovery, are capped at the statutory amounts.
Nor do we see any indication that the legislature intended to supplant fact
finders by taking on the task of valuing personal injuries; capping damages is a more
straightforward legislative exercise than placing a value on lost limbs and broken bones,
which the legislature presumably left to the judicial process. The legislature sought to
accomplish its tort reform goals "without diminishing the protection of innocent
Alaskans' rights to reasonable, but not excessive, compensation for tortious injuries
caused by others."22 For these reasons - and because there is no statutory language or
clear legislative intent to the contrary - we construe AS 09.17.010 to be a limitation
on an injured plaintiff's recovery, not an attempt to place a dollar value on personal
injuries that would require further reduction of a damages award that is already below
23
the cap.
This follows from our reasoning in Evans . In that case we considered a
number of constitutional challenges to the 1997 tort reform legislation, including
whether the damages caps in AS 09.17.010 violated the right to civil trial by jury found
in both the Alaska and federal constitutions.24 In concluding that the caps did not
22 Ch. 26, § 1(1), SLA 1997.
23 See ch. 26, § 1(1)-(11), SLA 1997 (noting repeatedly that "it is the intent
of this legislature" to provide "reasonable, but not excessive, compensation" for those
harmed by tortfeasors, but making no mention of valuing such harm).
24 56 P.3d at 1050-51; Alaska Const. art. I, § 16 ("In civil cases where the
amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of
twelve is preserved to the same extent as it existed at common law."); U.S. Const.
amend. VII ("In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,
shall be otherwise re-examined in any Court of the United States, than according to the
rules of the common law.").
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violate this constitutional right - the right to have a jury determine the extent of harm
caused by another's tortious conduct - our plurality opinion reasoned that the
legislature's "decision to place a cap on damages awarded is a policy choice and not a
re-examination of the factual question of damages determined by the jury."25 And in
L.D.G., Inc. v. Brown, a unanimous court approved Evans 's reasoning, explaining that
"[a] damages cap does not intrude on the jury's fact-finding function because the cap
represents a policy decision that is applied after the jury's determination."26 A cap
"setting a limit on allowable damages does not destroy the jury's role in awarding
damages; it merely limits it."27 The fact finder "must still make a determination of the
amount of damages to be awarded, and the damages cap is applied only in those cases
where the jury has made a determination that the damages should be higher than the
28
cap."
This is not one of those cases. Under the court's award of damages,
Kisling is liable for, and Grosz will recover, $300,000 in damages (25% of $1.2
million). Because this is less than the $400,000 cap, Kisling's exposure (and Grosz's
recovery) need not be further reduced.29 This is the result that best accommodates both
the apparent legislative purpose and the constitutional right to have a jury decide as a
factual matter the amount it would take to make the plaintiff whole.
Kisling posits several examples of situations in which he contends that
this sequencing - first allocating fault, then applying damages caps only if necessary
- will result in inequities. In his first example, there are one plaintiff and three
25 Evans, 56 P.3d at 1051.
26 211 P.3d 1110, 1131 (Alaska 2009) (emphasis added) (citing Evans, 56
P.3d at 1051).
27 Id.
28 Id. (emphasis added).
29 See id.
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defendants, a jury verdict of $1.2 million in noneconomic damages (as here), and an
allocation of 25% fault to each of the four parties. Kisling contends that if fault is
allocated before the statutory damages cap is applied, each of the three defendants is
found liable for $300,000 - a sum under the statutory cap - meaning that the plaintiff
recovers $900,000, "clearly more than the cap of $400,000." But such a result would
be impermissible because it would violate the statutory language: "the damages
awarded by a court or a jury . . . for all claims . . . arising out of a single injury or death
30
may not exceed $400,000."
Kisling notes the superior court's answer to his posed hypothetical: "the
$900,000 attributed to the defendants would have to be reduced to the $400,000 cap
and each defendant's liability portion be based on their percentage of fault: i.e.,
$133,333.33 for each defendant." Kisling highlights the resulting inequity, in that the
three defendants, each 25% at fault, owe only $133,333.33 apiece, whereas as the sole
defendant in Grosz's case, also 25% at fault, he owes $300,000.
Kisling posits a second hypothetical in which there is no comparative fault
on the part of the plaintiff but two defendants are at fault, one 25% and the other 75%.
He asks, "Is there any question [but] that the $1,200,000 verdict must be reduced to the
$400,000 damages cap first and then judgment for each of the defendants based on the
percentage of fault?" This would mean that the defendant who is 75% at fault would
owe $300,000, whereas the defendant who is 25% at fault - like Kisling - would owe
only $100,000. Again, a different scenario results in a different judgment amount even
though the liable defendant's percentage of fault is the same.
Other courts have grappled with hypothetical cases similar to those
Kisling highlights. In Olson v. Hartwig, the Minnesota Supreme Court considered a
case in which the jury found damages of $65,000 and allocated 40% of the fault to the
30 AS 09.17.010(b).
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decedent.31 There was a $35,000 statutory cap on wrongful death damages.32 The
question before the court was whether the decedent's percentage of fault "should be
applied to the damages found by the jury ($65,000) or to the maximum recovery
permitted under [the wrongful death statute] ($35,000)."33 Because Minnesota's
comparative fault statute was patterned after Wisconsin's, the court followed Wisconsin
case law holding "that the percentage of decedent's negligence should be applied to the
damages found by the jury rather than to the maximum permissible damages permitted
34
under its [wrongful death] statute."
The Minnesota court identified what it saw as "[t]he most persuasive
argument advanced in favor of applying" the comparative fault percentage against the
damages cap "rather than [against] the damages awarded by the jury": "otherwise a
case may arise where even though plaintiff's decedent's negligence was 49 percent
responsible for the damages for which plaintiff seeks recovery he could still recover the
full amount permitted" under the damages cap statute."35 The court acknowledged that
"such a situation may occur."36 But it reasoned:
The only answer to this argument is that in many wrongful
death cases the actual damages to the next of kin far exceed
31 180 N.W.2d 870, 871 (Minn. 1970).
32 Id. (citing Minn. Stat. § 573.02 (1970) (amended 1971)).
33 Id.
34 Id. at 872 (citing Mueller v. Silver Fleet Trucking Co., 37 N.W.2d 66, 70-
71 (Wis. 1949)). The Wisconsin legislature later amended its wrongful death act to
state that "[d]amages found by a jury in excess of [the statutory damages caps] shall be
reduced by the court to such maximum" and then "the aggregate of such maximum
amounts shall be diminished" by any comparative negligence. See id. The Minnesota
Supreme Court concluded that its own legislature "would have adopted the statute as
amended" if it had not intended to follow case law interpreting the earlier statute. Id.
35 Id. at 873.
36 Id.
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[the] permissible recovery under our statute, and it is more
equitable to permit recovery of the full amount permitted
under our statute in such a case than to further reduce the
amount which the next of kin may recover. In any event, we
think the number of such cases that will arise will be
minimal, and if some other rule is to be adopted it should be
[37]
done by the legislature.
A federal district court found this reasoning persuasive when interpreting the Kansas
wrongful death statutes:
Under all the circumstances we agree with the view
expressed in Olson, that it is far more equitable to allow the
plaintiff the opportunity to recover the statutory maximum
than to further reduce her recovery. The injustice of
allowing a plaintiff whose decedent was contributorily
negligent to perhaps recover as much as a plaintiff whose
decedent was not negligent seems slight, compared with the
injustice of further reducing plaintiff's recovery, when her
maximum recovery is already far less than her actual
[38]
damages.
The Kansas Supreme Court quoted the federal court's rationale in reaching the same
39
holding.
Like these courts, we recognize the possibility of inconsistent results.
Like them, however, we conclude that any resulting injustice is slight in comparison to
the injustice of further reducing a recovery that is already capped at an amount less than
the loss actually suffered. And some degree of inconsistency is an inevitable
consequence of statutory damages caps. For example, a plaintiff who suffers
$2,000,000 in noneconomic damages - as determined by a jury - recovers only a
fifth of his loss, whereas a plaintiff who suffers $400,000 in noneconomic damages
37 Id.
38 Benton v. Union Pac. R.R. Co., 430 F. Supp. 1380, 1386 (D. Kan. 1977).
39 McCart v. Muir , 641 P.2d 384, 393-94 (Kan. 1982).
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recovers all of it. The application of a flat rule invariably advantages some parties and
disadvantages others. As the Minnesota court observed, "if some other rule is to be
40
adopted it should be done by the legislature."
C. The Consensus Among Other Jurisdictions Is That Allocation Of
Fault Principles Apply Before Any Statutory Cap.
Case law from other jurisdictions favors allocating fault first and then
deciding whether a damages cap should apply to the plaintiff's resulting recovery; the
rationales reflect a similar balancing of the legislative policy choice and respect for the
role of the jury.41 For example, in Brown v. Crown Equipment Corp., the Maine
Supreme Judicial Court held that a "jury's finding of comparative negligence should be
applied before any statutorily mandated caps on damages are [applied to] the total
amount of damages."42 The court reasoned that if comparative fault percentages are
applied "first, and the statutory damage cap . . . is then applied against the specific,
reduced amount of damages awarded . . . , the jury's intention will most accurately be
reflected, and the statutory cap will be imposed only against that portion of the award
that is to be 'capped.' "43 In Chang v. State Farm Mutual Automobile Insurance Co.,
the Wisconsin Supreme Court addressed the potential reduction of a statutory maximum
award in a wrongful death suit.44 To support its conclusion that the comparative fault
40 Olson, 180 N.W.2d at 873.
41 See, e.g., Edward K. Cheng et al., Sequencing in Damages, 74 STAN. L.
REV. 353, 364-65 (2022) ("On the matter of damage caps, courts have almost
unanimously imposed one sequence: apply comparative fault first, then the damage
cap. A few courts have relied on specific textual interpretations to arrive at this
conclusion. . . . Yet nearly all courts have also relied on precedent, legislative purpose,
and policy arguments because the applicable statutory language is invariably
ambiguous on the sequencing question.").
42 960 A.2d 1188, 1196 (Me. 2008).
43 Id. at 1195.
44 514 N.W.2d 399, 401-02 (Wis. 1994).
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percentages should be applied first, the court reasoned that "[t]he statutory maximum
is not a measure of damages, nor a limit upon the amount of damage which may be
45
awarded by the jury; rather it is a limit only on recovery."
In General Electric Co. v. Niemet,46 the Colorado Supreme Court
addressed the same sequencing question.47 Observing that the legislative "intent was
to cap the amount of noneconomic damages paid by individual defendants,"48 the court
45 Id. at 405 ("A party-beneficiary is entitled to prove actual damages in any
amount. Only total recovery of a class is limited by the statutory maximum.
Accordingly, it follows that a party-beneficiary may prove damages in excess of the
statutory maximum, suffer a reduction in those damages for contributory
negligence . . . and still be entitled to collect up to the statutory maximum, assuming
that damages equal to or greater than the statutory maximum remain after reductions
have been made for his or her contributory negligence.").
46 866 P.2d 1361, 1362 (Colo. 1994) (en banc).
47 Id. at 1362-33 ("In any civil action in which damages for noneconomic
loss or injury may be awarded, the total of such damages shall not exceed the sum of
two hundred fifty thousand dollars, unless the court finds justification by clear and
convincing evidence therefor. In no case shall the amount of such damages exceed five
hundred thousand dollars." (quoting Colo. Rev. Stat. § 13-21-102.5(3)(a) (West
1987))); see also id. ("(1) In an action brought as a result of a death or an injury to
person or property, no defendant shall be liable for an amount greater than that
represented by the degree or percentage of the negligence or fault attributable to such
defendant that produced the claimed injury, death, damage, or loss. . . . (2) The jury
shall return a special verdict, or, in the absence of a jury, the court shall make special
findings determining the percentage of negligence or fault attributable to each of the
parties and any persons not parties to the action." (quoting Colo. Rev. Stat. § 13-21-
111.5(1), (2) (West 1987))).
48 Id. at 1365 (finding that "[t]he intent was to cap the amount of
noneconomic damages paid by individual defendants, in order to increase predictability
for insurance companies, while at the same time not restricting the recovery of
noneconomic damages by seriously injured persons more than was necessary to
accomplish the goal of insurance predictability").
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determined that "a trial court should apportion pro rata liability among the defendants
and plaintiff before it applies the statutory cap."49 This is the prevailing view.50
49 Id. at 1367 (emphasis added). While we agree with the Colorado court's
holding on the timing sequence, a difference in Alaska law is that the $400,000 cap is
a limit on damages awarded "arising out of a single injury or death," regardless of the
number of claimants or defendants. Compare AS 09.17.010(b), and e.g., L.D.G., Inc.
v. Brown, 211 P.3d 1110, 1136 (Alaska 2009) (concluding that "a single damages cap
calculated under section (b) should be applied to the aggregate non-economic damages
awarded"), with General Elec., 866 P.2d at 1368 (holding "that the cap . . . applies to
the liability share of each defendant in a case, and does not act as a cap on the total
amount a plaintiff may recover from several defendants").
50 See Collins v. Commonwealth Nat. Res. & Env't Prot. Cabinet, 10 S.W.3d
122, 127 (Ky. 1999) (concluding that proper procedure is to apply reduction for
comparative negligence to total amount of damages and then limit recovery to statutory
maximum); Miller v. LAMMICO , 973 So. 2d 693, 705 (La. 2008) (noting in medical
malpractice cap context that "comparative fault is allocated prior to imposition of the
statutory damages cap, [and] is not limited to those instances in which the plaintiff is
comparatively at fault"); Gilmore v. Mo. Dep't of Soc. Servs., Child.'s Div., 658 S.W.3d
146, 157 (Mo. App. 2022) (affirming application of comparative fault percentages first
and then reduction to maximum recovery allowed by statutory cap); Connelly v. City of
Omaha, 816 N.W.2d 742, 764-65 (Neb. 2012) ("We agree that a statutory limitation on
damages . . . 'applies to cap the total recovery after the reduction of the plaintiff's
damages for his or her comparative negligence, rather than applying to the total
damages established before the reduction for comparative negligence, since the latter
approach would multiply the effect of the damage limitation.' " (quoting 57 AM. JUR.
2D Municipal, County, School, & State Tort Liability § 602 (2012))); Coykendall v.
Lima Refin. Co., No. L-23-110, 2024 WL 3549216, at *9 (Ohio App. July 26, 2024)
("[W]hether in determining the amount of damages in light of the comparative fault of
the plaintiff, other defendants, or other non-defendants, the damage calculation must
take into consideration the total jury award before the application of any statutory
caps."); Monypeny v. Kheiv, No. W2014-00656-COA-R3-CV, 2015 WL 1541333, at
*25 (Tenn. App. Apr. 1, 2015) (compiling cases and recognizing that "jurisdictions that
have addressed the interaction between a damages cap and principles of comparative
fault have almost unanimously held that any reduction or allocation based on
comparative fault must be done before applying the statutory cap where a plaintiff's
damages are subject to reduction based on his or her comparative fault"); cf. Davis v.
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Nothing in Alaska's statutes or relevant legislative history requires us to
follow a different course. The sequence that respects both the jury's fact-finding role
and the legislative policy choice is to first apply principles of comparative fault to
determine what the claimant is owed and then decide whether that amount is subject to
a statutory damages cap. The superior court was correct to follow that sequence in this
case.
CONCLUSION
We AFFIRM the superior court's judgment .
3M Co. 633 S.W.3d 922, 923, 928 (Tenn. App. 2020) (concluding that plaintiff's
relative fault should be apportioned before application of any statutory caps and that
any capped amount should then be apportioned among non-plaintiff parties by
percentage of fault).
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