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Grow v. Ruggles (10/15/93), 860 P 2d 1225
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
THE SUPREME COURT OF THE STATE OF ALASKA
MONTE D. GROW, )
) Supreme Court
Appellant, ) File Nos. S-4994/5035
) Superior Court
v. ) File No. 3PA-89-980 CI
CAROLYN F. RUGGLES, ) O P I N I O N
Appellee, ) [No. 4014 - October 15, 1993]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: Paul Waggoner, Anchorage, for
Appellant. Noel H. Kopperud, Kopperud &
Hefferan, Anchorage, for Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews and Compton, Justices.
RABINOWITZ, Justice, concurring.
This case arises out of an automobile accident between
Monty Grow and Carolyn Ruggles. The two issues presented for
review are whether the superior court erred in denying Ruggles'
motion for a new trial and whether the superior court abused its
discretion in awarding Ruggles attorney's fees. We affirm the
superior court's denial of Ruggles' motion for a new trial but
reverse the attorney's fees award.
In November 1987, Monte Grow drove his vehicle into the
rear end of Carolyn Ruggles' vehicle. Both Grow and Ruggles were
insured by Allstate Insurance Company. Allstate initially paid
Ruggles' medical expenses out of Grow's liability policy. At
some point, Ruggles' lawyer requested that the payments be made
out of Ruggles' medical payment policy, as it appeared that her
claim might exceed Grow's $100,000 liability policy limit. This
change was accomplished, and Allstate thereafter claimed a lien
and subrogation rights against Grow's liability policy.
Ruggles moved for and was granted summary judgment on
the issue of Grow's negligence. The case proceeded to trial on
the damages issue. At trial Grow argued that most of Ruggles'
medical expenses were the result of a pre-existing condition. He
argued that only $600 of Ruggles' medical expenses were actually
caused by her accident with Grow. Using a special verdict form,
the jury awarded Ruggles $31,777.88 in medical expenses, the
exact amount Ruggles requested. The jury also awarded Ruggles
$14,760 in lost, past and future income. However, it awarded her
nothing for pain, suffering, and "loss of enjoyment of life."
Ruggles later filed a motion for a new trial, which was denied.
On appeal Ruggles argues that the superior court abused
its discretion in not ordering a new trial because the jury's
refusal to award pain and suffering damages was contrary to the
evidence. She urges this court to remand the case for the
limited purpose of fixing a reasonable damage award for pain and
suffering, arguing that the parties should not be compelled to
retry issues that have already been resolved.
Casting Ruggles' argument as an attack on the
consistency of the verdict, Grow argues that Ruggles has waived
her right to make such an argument because she failed to resubmit
the issue to the jury before it was discharged. Indeed, we have
long held that challenges to the consistency of a verdict are
deemed waived unless made prior to the discharge of the jury.
See City of Homer v. Land's End Marine, 459 P.2d 475, 480 (Alaska
1969) ("[T]he rule that objection on the grounds of inconsistency
is waived by failure to move for resubmission promotes the fair
and expeditious correction of error.") (quoting Cundiff v.
Washburn, 393 F.2d 505, 507 (7th Cir. 1968)); Buoy v. ERA
Helicopters, Inc., 771 P.2d 439, 442 n.1 (Alaska 1989); State v.
Haley, 687 P.2d 305, 321 (Alaska 1984); City of Fairbanks v.
Smith, 525 P.2d 1095, 1097-98 (Alaska 1974) (resubmission rule
designed to discourage jury shopping); Nordin Constr. Co. v. City
of Nome, 489 P.2d 455, 472 (Alaska 1971).
Ruggles claims the verdict was inadequate, not
inconsistent. We disagree. The pain and suffering award was not
merely inadequate--there was no award at all, despite the fact
the jury agreed with Ruggles that all of her medical expenses
were caused by the accident. Such a result can only be described
as inconsistent and thus subject to the resubmission rule. See
Cohn v. J.C. Penney Co. Inc., 537 P.2d 306, 311-12 (Utah 1975)
(where jury awarded medical expenses but nothing for pain and
suffering, verdict was "deficient in form,"not inadequate).
Ruggles attempts to distinguish the cases which uphold
the waiver rule by arguing that in the present case the jury was
polled. While some of the language in our prior decisions may
suggest that polling suffices to avoid the waiver rule, we wish
to clarify that polling alone is not enough. See Haley, 687 P.2d
at 321 ("[I]f counsel does not ask to poll the jury, or object to
excusing the jury or to the filing of the verdict, the right to
challenge the consistency of the verdict is waived.") (emphasis
added). Polling only clarifies each juror's vote, it does not
require the jury to re-examine controverted issues. To achieve
the efficiency the waiver rule is designed to promote, and to
avoid the jury shopping it is designed to prevent, counsel must
do more than simply poll the jury; he/she must also ask the jury
to re-examine its decision.1 We affirm the trial court's denial
of Ruggles' motion for a new trial.
Grow appeals the superior court's attorney's fees award
of $9,100.35. Grow focuses on his settlement offer and Civil
Rule 68 arguing that the trial court should have awarded fees to
Grow instead of Ruggles. Grow's settlement offer read in
Defendant offers to allow entry of
judgment in favor of Plaintiff in the amount
of $66,526.70, including costs, interest and
attorney's fees. Prior advances have been
made to Carolyn F. Ruggles in the amount of
$31,526.70, and a lien has been claimed for
that amount. Ruggles would be responsible
for paying any lien out of the $66,526.70.
Accordingly, the net amount of this offer is
Grow argues that since he offered Ruggles $35,000 above her
medical expenses, and the jury only awarded her $14,760 above her
medical expenses, Alaska Civil Rule 68 mandates that he be
awarded attorney's fees.
According to Civil Rule 68(b)(1), if the judgment
finally rendered is not more favorable to the offeree than the
rejected offer, the offeree must pay the costs and attorney's
fees incurred after the making of the offer. Alaska R. Civ. P.
68(b)(1). Rule 68 offers must be definite and unconditional.
Farr v. Stepp, 788 P.2d 35, 37 (Alaska 1990). An offer not in
compliance with Rule 68 may not be considered in determining
costs and attorney's fees. Myers v. Snow White Cleaners & Linen
Supply, Inc., 770 P.2d 750, 753 (Alaska 1989).
Ruggles argues that Grow's offer was not in compliance
with Rule 68 because it conditioned settlement on the liquidation
and settlement of Allstate's subrogation claim. This is reading
too much into the settlement offer. Contrary to Ruggles'
position, the offer does not attempt to "coerce collection of the
subrogation lien on specific terms as a precondition to
settlement of the liability case." The offer simply notes that
Ruggles is "responsible for"any liens which Allstate may have
had for the advances it had already made. In so doing, the offer
merely summarizes standard subrogation theory; it does not, as
Ruggles argues, require concessions beyond the money judgment
necessary to settle the case. Finally, Grow's offer did not
require Allstate's acceptance to be valid. Therefore, it is not
a "joint offer" which is excluded from Rule 68 consideration."
See Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937, 943
(Alaska 1983). The bottom line is that Grow offered Ruggles
$35,000 above her medical expenses. The jury awarded her only
$14,760 over medical expenses. Even after prejudgment interest
is factored in, Farnsworth v. Steiner, 601 P.2d 266, 269 n.4
(Alaska 1979), Ruggles would have been better off accepting the
offer than taking the case to trial. Thus, pursuant to Civil
Rule 68, Grow should be awarded attorney's fees from the date of
the offer. We therefore reverse the superior court's attorney's
fees award and remand for a new fee determination.
AFFIRMED in part, REVERSED and REMANDED in part.
RABINOWITZ, Justice, concurring.
I am not persuaded that the special verdicts are
inconsistent. Given the jury's return of special verdicts
awarding $0 damages for pain, suffering, and disfigurement, $0
damages for loss of enjoyment of life, and $31,777.88 in damages
for past and future medical care, the two zero damage special
verdicts should be viewed as inadequate rather than inconsistent.2
Further, I think it manifestly unfair to invoke the doctrine of
waiver in the circumstance where Ruggles' counsel apparently did
not realize the special verdicts in question could be
characterized as inconsistent rather than inadequate. If the
jury had chosen to return special verdicts of $1 in damages for
pain and suffering and disfigurement, and $1 in damages for loss
of enjoyment of life, it could not reasonably be argued that the
special verdicts were inconsistent.
Thus, I conclude that the issue before us is whether
the superior court abused its discretion in denying Ruggles'
motion for a new trial, limited solely to damage claims for pain,
suffering, disfigurement, and loss of enjoyment of life, based on
the inadequacy of the special verdicts. In view of the
credibility issues involved, and the problematic attempt to limit
the scope of the new trial, I conclude that the superior court
did not abuse its discretion in denying Ruggles' motion for a new
1. When a party does not move to resubmit a question before
the jury is discharged, the suggestion of an ulterior motive
arises. A litigant who receives an undesirable verdict may
postpone challenging the verdict until the jury is discharged,
hoping to receive a more receptive jury on remand. This court
and other courts have cautioned against this type of "having your
cake and eating it too" strategy. A litigant cannot "be
permitted to take advantage of what was probably a tactical move
on [his/her] part. By silence [he/she] chose to accept the
benefit of the jury verdict; [he/she] must also accept any
detriment which flows therefrom." Nordin Constr. Co., 489 P.2d
2. See Spalding v. Shinkle, 774 S.W.2d 465, 466-67 (Ky.
App. 1989); McCain v. Redman Homes, Inc., 387 So. 2d 809, 812-13