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             THE SUPREME COURT OF THE STATE OF ALASKA

THE CITY OF KODIAK,           )
                              )    Supreme Court No. S-8312
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3KO-96-38 CI
                              )
ANGELA M. PARISH, and         )    O P I N I O N
COLUMBIA CASCADE COMPANY,     )
                              )
               Appellees.     )    [No. 5170 - September 3, 1999]
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                    Donald D. Hopwood, Judge.


          Appearances:  Michael D. Corey, Sandberg,
Wuestenfeld & Corey, Anchorage, for Appellant.  William W.
Whitaker, Winegarden & Whitaker, Kenai, for Appellee Angela M.
Parish.  Neil T. O'Donnell, Atkinson, Conway & Gagnon, Anchorage,
for Appellee Columbia Cascade Company.


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.


          COMPTON, Justice.


I.   INTRODUCTION
          Following a jury verdict which found in favor of the
plaintiff and third-party defendant and against the
defendant/third-party plaintiff, the third-party defendant moved
for and was awarded costs and attorney's fees against the third-
party plaintiff.  The third-party plaintiff appeals the court's
award.  We affirm.
II.  FACTS AND PROCEEDINGS
          Anthony Belzer was injured by a splinter from playground
equipment owned and maintained by the City of Kodiak (Kodiak).
Angela Parish, on her own behalf and as Anthony's mother, sued
Kodiak for negligence.  Kodiak filed a third-party complaint
seeking equitable apportionment [Fn. 1] of damages against
Timberform, the manufacturer of the playground equipment. 
Timberform is a trade name used by Columbia Cascade Timber Company
(Columbia Cascade). Kodiak's defense was that the playground
equipment was either defectively designed or improperly
manufactured by Columbia Cascade.  Columbia Cascade answered and
counterclaimed against Kodiak, asserting that Kodiak's negligence
was the sole cause of Anthony's injury.  
          Columbia Cascade moved for partial summary judgment.  It
argued that while it could be found at fault, any monetary award
against it would be time barred because Kodiak had filed its third-
party complaint more than three years after the accident.  Thus, it
argued, were it found totally or partially responsible for
Anthony's injury, Anthony and his mother might receive none or only
a portion of their damages.
          To avoid the possibility of losing a portion of her son's
recovery, Angela amended her complaint, dropping herself as an
individual party and adding a direct claim against Columbia Cascade
on behalf of Anthony.  Because Anthony was a minor, his direct
claim for monetary damages would not be time barred. [Fn. 2]
          Though Angela filed a direct claim against Columbia
Cascade, she agreed with Columbia Cascade at trial that no evidence
of a defect existed.  All of Angela's evidence supported the
conclusion that Kodiak's improper maintenance of the playground
equipment caused Anthony's injury.  Likewise, Columbia Cascade's
main defense was that Kodiak's inadequate maintenance was the sole
cause of Anthony's injuries.
          The jury found that Kodiak was 100 percent liable for
Anthony's injuries.  Hence the jury did not apportion damages to
either Angela or Columbia Cascade.  
          Angela and Columbia Cascade then sought and were awarded
a portion of their costs and attorney's fees from Kodiak.
          Kodiak appeals the superior court's order that it pay a
portion of Columbia Cascade's costs and attorney's fees.  Kodiak
asserts that the superior court misinterpreted Alaska Civil Rules
79(h) and 82(e), which address the allocation of costs and
attorney's fees respectively between third-party plaintiffs and
third-party defendants joined in an action under Alaska's equitable
apportionment statute, AS 09.17.080.  Kodiak does not appeal the
award of costs and attorney's fees to Angela. 
III. STANDARD OF REVIEW
          The superior court's determination regarding whether
Civil Rule 82(e) applied to resolve the liability of Kodiak and
Columbia Cascade to each other with respect to costs and attorney's
fees requires an interpretation of the rule.  Therefore, this court
will apply the independent judgment standard of review. [Fn. 3]
          Columbia Cascade argues that two separate issues are
presented and thus two standards of review apply.  It agrees with
Kodiak that interpretation of Civil Rule 82(e) is subject to this
court's independent judgment.  However, Columbia Cascade contends
that the superior court's alternative basis for its decision, which
was to realign the parties in accordance with their positions of
"actual adversity,"is subject only to an abuse of discretion
standard of review.  Since we do not reach the alternative basis
upon which the superior court relied, we need not address whether
Columbia Cascade is correct regarding the standard of review to be
applied to that determination.  
IV.  DISCUSSION
          The Alaska Rules of Civil Procedure provide for an award
of costs and attorney's fees to the prevailing party.  Rule 79(a)
states:  "[T]he prevailing party is entitled to recover costs
allowable under paragraph (f) [which delineates allowable costs]
. . . ." Rule 82(a) uses nearly identical language:  "[T]he
prevailing party in a civil case shall be awarded attorney's fees
calculated under this rule." 
          When a defendant joins a third-party defendant under the
equitable apportionment statute, as Kodiak did here, Rule 79(h)
says: "[C]osts must be apportioned and awarded according to the
provisions of Civil Rule 82(e)." Civil Rule 82(e) states in part: 
          Equitable Apportionment Under AS 09.17.080.
          In a case in which damages are apportioned
among the parties under AS 09.17.080, the fees awarded to the
plaintiff under (b)(1) of this rule must also be apportioned among
the parties according to their respective percentages of fault.  If
the plaintiff did not assert a direct claim against a third-party
defendant brought into the action under Civil Rule 14(c), then
     
          (1)  the plaintiff is not entitled to recover
the portion of the fee award apportioned to that party;  and

          (2)  the court shall award attorney's fees
between the third-party plaintiff and the third-party defendant as
follows:

          (A)  if no fault was apportioned to the
third-party defendant, the third-party defendant is entitled to
recover attorney's fees calculated under (b)(2) of this rule.
 
(Emphasis added.)
          This case turns on whether the phrase "plaintiff did not
assert a direct claim"implies a result when a plaintiff did assert
a direct claim against a third-party defendant.  The superior court
concluded that it implied nothing: "[S]ubsection (e) is
inapplicable here because Parish did assert a direct claim against
Columbia Cascade.  The rules for awarding attorney's fees in
subsection (e) apply only where the plaintiff did not assert such
a claim."(Emphasis added.)  The court declined to imply the
phrase's obverse meaning, i.e., if the plaintiff did assert a
direct claim against a third-party defendant, then the court shall
not award attorney's fees between the third-party plaintiff and the
third-party defendant.   
          Concluding that Civil Rule 82(e) was inapplicable, the
superior court defaulted to the general Alaska rule of awarding 
costs and attorney's fees to the prevailing party. [Fn. 4]  In
determining who was the "prevailing party"under the rules, the
court found that Angela's claim against Columbia Cascade was
"nominal and . . . not pursued by plaintiff at trial"and "amounted
to no claim at all." It further found that Kodiak's claims against
Columbia Cascade "were very real and were contested fully at
trial." The court concluded that "[a]s between the City [Kodiak]
and Columbia Cascade, Columbia Cascade clearly was the prevailing
party." Accordingly, the court ordered that Kodiak pay thirty
percent of Columbia Cascade's costs and attorney's fees pursuant to
the "usual provisions"of Rule 82(b).
          Kodiak argues:
          1.   Civil Rule 82(e) is the only rule that can be
applied to award attorney's fees between a third-party plaintiff
and a third-party defendant.  Attorney's fees can only be awarded
between them when there is no direct claim against the third-party
defendant by the original plaintiff.  Here the original plaintiff,
Angela, made such a claim; thus, no attorney's fees may be awarded
between Kodiak and Columbia Cascade.
          2.   Columbia Cascade is not entitled to costs from
Kodiak because "Alaska R. Civ. P. 79[h] states that in cases where
damages are apportioned among the parties under AS 09.17.080, costs
must be apportioned and awarded according to the provisions of
Civil Rule 82(e)." Again, since Angela made a direct claim against
Columbia Cascade, the rules do not allow for an award of costs.
          Columbia Cascade responds that the trial court correctly
held that Rule 82(e) is inapplicable, because it does not address
the issue of who can be ordered to pay a prevailing third-party
defendant's costs and attorney's fees when claims are made against
the third-party defendant by both the third-party plaintiff and the
plaintiff.
     A.   The Superior Court Correctly Held that Civil Rule 82(e)
Is Inapplicable because Angela Brought a Direct Claim against
Columbia Cascade.  

          This case presents the question whether Rule 82(e) is 
applicable only in the "certain circumstances"where the plaintiff
has not asserted a direct claim against a third-party defendant. 
To be sure, when no direct claim is asserted against the third-
party defendant by the original plaintiff, Rule 82(e) applies to an
award of costs and attorney's fees.  But Kodiak's argument is not
based on the explicit text of the rule, but rather on its obverse
implication. 
          While Kodiak's argument is not implausible, we observe
that an opposite and simpler construction is permissible.  The
existence of Angela's direct claim against Columbia Cascade does
not negate Kodiak's responsibility to pay Columbia Cascade's costs
and attorney's fees, but merely renders Rule 82(e) inapplicable. 
Without the application of Rule 82(e), the analysis would default
generally to Civil Rule 79 and Civil Rule 82, and the usual Alaska
practice of awarding costs and attorney's fees to the prevailing
party.  This is what the superior court did.  
          The superior court held that "subsection (e) is
inapplicable here because [Angela] did assert a direct claim
against Columbia Cascade.  The rules for awarding attorney's fees
in subsection (e) apply only where the plaintiff did not assert
such a claim." It rejected Kodiak's expansive reading of Rule
82(e), stating that it was based on "[f]allacious reasoning[] [that
was] not stated in or contemplated by the rule." The court then
observed: "Such an application also would be contrary to the
general Alaska rule awarding partial attorney's fees to a
prevailing party." It concluded that "[t]he usual provisions for
awarding fees according to Civil Rule 82(b) apply." We agree.  
     B.   Rules 79(h) and 82(e) Must Be Read so that the Same
Results Are Reached for Both Costs and Attorney's Fees.

          With regard to costs, Kodiak argues that Rule 82(e)
cannot be ignored because Rule 79(h) states:
          Equitable Apportionment Under AS 09.17.080.

          In a case in which damages are apportioned
among the parties under AS 09.17.080, costs must be apportioned and
awarded according to the provisions of Civil Rule 82(e).

(Emphasis added.)  According to Kodiak, 
          Alaska R. Civ. P. 79[h] states that in cases
where damages are apportioned among the parties under A.S.
09.17.080, costs must be apportioned and awarded according to the
provisions of Civil Rule 82(e).  Consequently, the pre-requisite to
Columbia Cascade recovering costs against Kodiak, namely that
plaintiffs not assert a direct claim against Columbia Cascade is
not met.  Columbia Cascade's award of costs against Kodiak
similarly constitutes reversible error.

If Rule 82(e) does not apply to an award of attorney's fees as
between a third-party plaintiff and third-party defendant, where a
plaintiff does assert a direct claim against the third-party
defendant, but it does apply to costs, it is clear that different
results may be obtained because of different applications of the
rules.       
          The introductory phrases of Rule 79(h) and Rule 82(e) are
identical:  "In a case in which damages are apportioned among the
parties under AS 09.17.080 . . . ." Further, while the concluding
phrases of each sentence are not identical, they convey the same
intent: costs and attorney's fees must be apportioned when awarded. 
The language which ties Rule 79(h) into Rule 82(e), "costs must be
apportioned and awarded according to the provisions of Civil Rule
82(e),"does not suggest that costs are to be treated differently
than attorney's fees.  Indeed, the fit between Rule 79(h) and Rule
82(e) is snug.
          Having concluded that Rule 82(e) does not apply with
regard to attorney's fees, since Angela did assert a direct claim
against Columbia Cascade, the same conclusion must follow with
respect to Rule 79(h) and costs.      
V.   CONCLUSION
          Since Angela did assert a direct claim against Columbia
Cascade, Civil Rule 82(e) does not govern the liability of Kodiak
and Columbia Cascade to each other with respect to costs and
attorney's fees.  Accordingly, the superior court did not err in
declining to apply that provision.  Thus, we AFFIRM the superior
court's award of costs and attorney's fees against Kodiak.


                            FOOTNOTES


Footnote 1:

     See AS 09.17.080.


Footnote 2:

     See AS 09.10.140.


Footnote 3:

     See Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996).


Footnote 4:

     See Alaska R. Civ. P. 79; Alaska R. Civ. P. 82.