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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sherbahn v. Kerkove (9/17/99) sp-5178

Sherbahn v. Kerkove (9/17/99) sp-5178

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.



	THE SUPREME COURT OF THE STATE OF ALASKA
	

DAVID SHERBAHN & SPENARD		)
BUILDERS SUPPLY,			)	Supreme Court No. S-8222
)
   Appellants,		)	Superior Court No.
)	3AN-96-1922 CI
v.					)
)	O P I N I O N
GREGORY J. KERKOVE,			)
)	[No. 5178 - September 17, 1999]
   Appellee.		)
______________________________)




Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Peter A. Michalski, Judge.


Appearances: Maryanne Boreen, Ingaldson 
Maassen, P.C., Anchorage, for Appellants.  
Rebecca J. Hozubin, Law Offices of George M. 
Kapolchok, Anchorage, for Appellee.


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


FABE, Justice.


I.	INTRODUCTION

Gregory Kerkove sued David Sherbahn and Sherbahn's 
employer, Spenard Builders Supply (SBS), for negligence arising out 
of an automobile accident.  At trial, the jury awarded $25,000 in 
past and future damages to Kerkove.  Because this award exceeded 
Kerkove's pre-trial offer of judgment, the superior court's 
judgment included enhanced prejudgment interest from the date of 
injury.  The court also awarded enhanced postjudgment interest.  
Sherbahn and SBS appeal, arguing that the superior court erred in 
(1) denying their motion for a directed verdict because the 
evidence did not support the jury's award of future medical 
expenses, (2) failing to reduce the future medical expenses to 
present value, (3) computing prejudgment interest from the date of 
injury, and (4) enhancing postjudgment interest.
Because the evidence supports the jury's award of future 
medical expenses, we affirm the superior court's denial of the 
motion for a directed verdict.  We also conclude that the trial 
court correctly refused to reduce the future medical expenses to 
present value and properly computed prejudgment interest from the 
date of injury.  But the trial court erred in enhancing 
postjudgment interest.  Thus, we reverse and remand on that limited 
issue.
II.	FACTS AND PROCEEDINGS
On April 14, 1994, David Sherbahn and Gregory Kerkove 
were involved in a car accident at the intersection of Post Road 
and Viking Drive in Anchorage.  Kerkove sued Sherbahn and 
Sherbahn's employer, Spenard Builders Supply (SBS).  Before trial, 
Kerkove offered to settle the dispute for $30,000, inclusive of 
costs, interest, and attorney's fees.  Sherbahn and SBS rejected 
the offer.

Although Sherbahn and SBS initially denied liability, in 
opening statement at trial they conceded that Sherbahn was 
negligent and that his negligence was a legal cause of the 
accident.  Accordingly, the trial primarily addressed the issues of 
damages and Kerkove's comparative fault.
In addition to past economic and non-economic damages, 
Kerkove sought compensation for future medical treatment and future 
non-economic loss, including pain and suffering.  To support his 
claim for future medical bills, Kerkove testified that he continued 
to experience neck pain and occasional headaches.  His treating 
chiropractor, Dr. Edward Barrington, referred him in the fall of 
1994 to Dr. Glenn Ferris for an evaluation and possible treatment 
because Kerkove was no longer responding to Dr. Barrington's mode 
of treatment.  After examining Kerkove, Dr. Ferris reported:
Because he is doing so well, I am providing 
him with an anti-inflammatory to assist in the 
final stages of recovery and am sending him 
back for further chiropractic management.  
Quite possibly, the anti-inflammatory combined 
with his chiropractic management will be 
adequate to restore him to his pre-injury 
status.  In the event that we are unsuccessful 
in gaining full recovery within the next 
couple of weeks, trigger-point injections with 
a concomitant physical therapy protocol will 
be considered.
But Kerkove claims that he never underwent the trigger-point 
injection treatment because he could not afford its estimated cost 
of $8,000-$15,000.
After the parties had presented all of their evidence, 
Sherbahn and SBS moved for a directed verdict on Kerkove's future 
economic and non-economic loss:

[T]he medical records themselves indicate that 
he . . . resolved [his] pains, and the pains 
he's left with, as he himself has described, 
are pains similar to what he had before the 
accident.  There's been no testimony that he 
received enhanced and permanent injuries at 
all from this accident, no testimony in front 
of the Court to support that finding for the 
jury, so they would in fact be required to 
speculate as to awarding any such damages.

The court denied the motion.
Although the jury found that Kerkove was comparatively 
negligent, it concluded that his negligence was not a legal cause 
of his injuries.  The jury awarded Kerkove $5,000 for past economic 
loss (medical bills), $5,000 for past non-economic loss (pain and 
suffering), and $15,000 for future economic loss (cost of medical 
treatment).
Because the jury award exceeded the offer of judgment 
that Kerkove had made earlier in the litigation, Kerkove moved to 
enhance the rate of prejudgment interest under former Alaska Civil 
Rule 68 and former AS 09.30.065.  Sherbahn and SBS opposed the 
motion, claiming that Kerkove was not entitled to an enhanced 
interest rate on his damage award because Rule 68 does not cover a 
joint offer of judgment, and filed a notice to reduce the future 
economic damage award to its present value.
The superior court entered final judgment on June 3, 
1997.  The court's judgment included past economic loss of $5,000 
and past non-economic loss of $5,000, both bearing enhanced 
prejudgment interest of 15.5% from April 14, 1994 -- the date of 
the accident -- and future economic loss of $15,000, bearing 
enhanced postjudgment interest of 15.5% from March 6, 1997 -- the 
date of the jury verdict.  Sherbahn and SBS appeal.

III.	DISCUSSION
A.	Standard of Review
When reviewing a motion for a directed verdict, we 
"determine whether the evidence, when viewed in the light most 
favorable to the non-moving party, is such that reasonable 
[persons] could not differ in their judgment. . . . [I]f there is 
room for diversity of opinion among reasonable people, the question 
is one for the jury."
On questions of law, such as the application of the 
prejudgment interest statute or Civil Rule 68, we exercise our 
independent judgment.   When reviewing de novo, we will adopt the 
rule of law that is most persuasive in light of precedent, reason, 
and policy.   Moreover, at what point prejudgment interest begins 
to accrue is a question of law subject to this court's independent 
judgment. 
B.	The Superior Court Properly Denied Sherbahn's Motion for 
a Directed Verdict.  


 At the close of evidence, Sherbahn and SBS moved for a 
directed verdict on the issue of future damages.  The superior 
court denied the motion.   On appeal, Sherbahn and SBS again argue 
that the evidence did not support the jury's award.  They claim 
that Kerkove's submission of Dr. Ferris's report, which stated that 
Dr. Ferris would "consider"trigger-point injections if anti-
inflammatory treatment did not work, was insufficient to allow the 
jury to award damages for future medical treatment.  Kerkove 
responds that his own testimony, the testimony of his treating 
doctor, and Dr. Ferris's report are sufficient to support an award 
of future medical expenses.

To establish a claim for future medical expenses, a 
plaintiff must prove two elements.  First, the plaintiff must prove 
the fact of damages by a preponderance of the evidence.   "To 
recover for future medical expenses one must prove to a reasonable 
probability that they will occur."  Second, the plaintiff must 
prove the amount of damages with a degree of certainty that allows 
the finder of fact to "reasonably estimate the amount to be allowed 
for [the] item [of damages]."  Both the fact and the amount of 
damages can be proved by evidence of the type of treatment, the 
costs of treatment, the nature and duration of any hospitalization, 
resulting pain and suffering, and the length of any period of 
disability flowing from medical procedures. 
Sherbahn and SBS rely on Blumenshine v. Baptiste  to 
support their argument that Kerkove's evidence was insufficient to 
support an award of future medical expenses.  In Blumenshine, the 
trial court set aside the jury's award of future medical expenses 
after a motion for a judgment notwithstanding the verdict (JNOV).  
 After he completed a pain management program, Baptiste's pain and 
rehabilitation center concluded that he did not need any further 
medical care.  And although a different physician had suggested 
cortisone treatment, the plaintiff neither stated that he wished to 
undertake the treatment nor established what the treatment would 
cost.  We concluded that the plaintiff failed to prove future 
medical expenses to a reasonable certainty and affirmed the trial 
court's grant of the JNOV. 

In contrast, the evidence in this case supports the 
requested damages.  Kerkove's chiropractor, Dr. Barrington, 
testified that he referred Kerkove to Dr. Ferris for an evaluation 
and possible trigger-point injection therapy.  Although Dr. 
Barrington did not fully agree with Dr. Ferris's diagnosis and had 
doubts about the effectiveness of the proposed treatment, he 
recommended that Kerkove try the alternative treatment recommended 
by Dr. Ferris because traditional methods of treatment were no 
longer beneficial to Kerkove.  Kerkove also testified that he would 
pursue the trigger-point injection treatment if he could afford it. 
 Thus, Kerkove proved to a reasonable certainty that he would incur 
future medical expenses.
Sherbahn and SBS also claim that Kerkove should have 
presented Dr. Ferris's expert testimony to support Kerkove's claim 
that he would need cortisone injections in the future.  They rely 
on Houger v. Houger,  in which we noted that "[i]f a question of 
the nature or character of appellee's injuries were involved, some 
special skill [is] needed, and expert testimony by someone 
qualified in medical science [is] required."  But Kerkove's 
chiropractor, an expert with special knowledge, did testify as to 
the character and nature of Kerkove's injuries and outlined the 
contents and recommendations of Dr. Ferris's report.  Thus, Dr. 
Ferris's testimony was not necessary for the jury to determine the 
fact of future medical damages.

Sherbahn and SBS next contend that Kerkove's statement 
that he believed that the injection treatment would cost $8,000 to 
$15,000 was insufficient to prove the amount of damages.  They 
maintain that the statement is hearsay and that "only Dr. Ferris or 
someone from the Alaska Spine Institute was qualified to testify as 
to the cost of the procedure."
Even if the statement were hearsay, Sherbahn and SBS 
waived any objection to its admission as evidence.  When Kerkove 
testified about the cost of the treatment at trial, Sherbahn and 
SBS did not object to it.  If a party fails to object to the 
admission of evidence, the party has waived the objection.   
Because Sherbahn and SBS waived any objection to Kerkove's 
statement about the cost of treatment, we will not consider this 
argument on appeal.

Moreover, while the jury may not "speculate or guess in 
making allowance for future medical expenses," Kerkove only needed 
to provide "some data . . . upon which [the jury] might reasonably 
estimate the amount"of his future medical costs.   And the jury, 
which is responsible for weighing the credibility of witnesses and 
the reliability of evidence, apparently accepted Kerkove's 
estimate.  Thus, the jury had "some data"on which to base its 
award.
After reviewing all of the evidence, we conclude that 
Kerkove presented sufficient evidence to support his claim for 
future economic damages.  Accordingly, the superior court correctly 
denied the motion for a directed verdict.
C.	The Superior Court Correctly Refused to Reduce the Award 
of Future Medical Expenses to Present Value.

Sherbahn and SBS next argue that even if the evidence 
supported the jury's award of future medical expenses, the superior 
court should have reduced it to present value under AS 
09.17.040(b).  They contend that the $15,000 award should have been 
reduced to $5,535.06, based upon Kerkove's remaining life 
expectancy of thirty-six years.  Kerkove counters that the 
reduction of the jury's award in this manner would lead to an 
"absurd"result because he "intend[s] to use the entire amount of 
money within a very short period of time."
Alaska Statute 09.17.040 provides that the fact finder 
must reduce future economic losses to present value:

(b)	The fact finder shall reduce future 
economic damages to present value.  In 
computing the portion of a lump-sum award that 
is attributable to future economic loss, the 
fact finder shall determine the present amount 
that, if invested at long-term future interest 
rates in the best and safest investments, will 
produce over the life expectancy of the 
injured party the amount necessary to 
compensate the injured party for 

. . . .

(2)	the amount of money necessary 
during future years to provide for all 
additional economic losses related to the 
injury, taking into account future 
anticipated inflation.

(c)	Subsection (b) of this section does 
not apply to future economic damages if the 
parties agree	that the award of future 
damages may be computed under the rule adopted 
in the case of Beaulieu v. Elliott, 434 P.2d 
665 (Alaska 1967).

We agree with Sherbahn and SBS that AS 09.17.040 
contemplates the reduction of future medical expenses to present 
value.  But we believe that application of the statute in cases 
such as this one would lead to a result that the legislature did 
not envision.
"Interpretation of a statute begins with an examination 
of its language construed in light of its purpose."  In Beaulieu 
v. Elliott,  we held that the trier of fact should be permitted "to 
compute loss of future earnings without reduction to present 
value."  The legislature then reversed the Beaulieu rule by 
enacting AS 09.17.040:

[T]he clear purpose of [AS 09.17.040] was to 
bring Alaska in line with other states which 
reduce future economic awards to present value 
and to reverse the rule we established [in 
Beaulieu] that the trier of fact should be 
allowed to compute loss of future earnings 
without reduction to present value.[ ]

The plain language of subsection (b) does not specifically 
designate the categories of damages that must be reduced to present 
value.  But in discussing this issue prior to passage of AS 
09.17.040, members of the judiciary committee commented that "[t]he 
Alaska Supreme Court has not indicated specifically whether future 
medical expenses should be reduced to present value, but it would 
appear that the same analysis relating to loss of earning capacity 
would apply."  Thus, by enacting AS 09.17.040, the legislature 
appears to have intended that the trier of fact reduce all future 
economic damages to present value. 

Nevertheless, Kerkove points to the purpose of the 
statute to support his argument that AS 09.17.040 does not require 
reduction of the award in this case.   We recognized in Beaulieu 
v. Elliott that the general purpose of reducing future damages to 
present value in tort cases is to prevent a plaintiff, through 
investments, from being placed in a better position than he or she 
would have occupied but for the defendant's tort.   But because he 
would already have undergone the injection treatment had he been 
able to afford it and intends to use the money for trigger-point 
injections as soon as possible, Kerkove posits that the award 
should not be computed over his remaining thirty-six-year 
expectancy.  We agree.

In ascertaining the legislature's intent, we are obliged 
to avoid construing a statute in a way that leads to a glaringly 
absurd result.   The legislature intended that the sum remaining 
after reduction to present value would provide a plaintiff with 
"the amount of money necessary during future years to provide for 
all additional economic losses related to the injury."  Reducing 
the $15,000 award for trigger-point injections to present value 
over Kerkove's full life expectancy would lead to an absurd result 
because Kerkove would be left with only a third of the money he 
needs to obtain the intended treatment. By Sherbahn and SBS's 
computation, Kerkove would not have the full amount necessary for 
treatment until after he has invested it for thirty-six years.  As 
we commented in Beaulieu, the purpose of reducing future damages is 
to avoid overcompensating a plaintiff for future loss.   In cases 
such as this, where the plaintiff will be using the entire award 
for medical treatment almost immediately, the danger of 
overcompensation is not present.  
 Because Kerkove testified that he would already have 
undergone Dr. Ferris's treatment had he been financially able and 
because the jury awarded him only the amount necessary to undergo 
that particular treatment at this time, any reduction of the future 
damage award would not serve the statute's purpose.  Thus, we 
affirm the trial court's refusal to reduce the award for future 
medical expenses to present value.

D.	The Superior Court Properly Computed Prejudgment Interest 
on Past Economic Loss from the Date of the Injury.

In its final judgment the trial court awarded Kerkove 
$5,000 in past economic loss for medical expenses, bearing interest 
from the date of the accident, April 14, 1994.  Although this award 
did not include the $3,300 in medical bills that Sherbahn and SBS 
had already paid, Sherbahn and SBS contend that the superior court 
should have computed prejudgment interest on the $5,000 award from 
December 2, 1994, the date that they stopped paying Kerkove's 
medical bills, rather than April 14, 1994, the date of the 
accident.
Alaska Statute 09.30.070(b) provides that prejudgment 
interest accrues from the day the defendant is served or receives 
written notice of a claim:
Except when the court finds that the parties 
have agreed otherwise, prejudgment interest 
accrues from the day process is served on the 
defendant or the day the defendant received 
written notification that an injury has 
occurred and that a claim may be brought 
against the defendant for that injury, 
whichever is earlier.  The written 
notification must be of a nature that would 
lead a prudent person to believe that a claim 
will be made against the person receiving the 
notification, for personal injury, death, or 
damage to property.
We have held that proof of actual notice can satisfy a statutory 
requirement of written notice.  

Sherbahn and SBS do not contest that the date of notice 
of the claim was the date of the accident, April 14, 1994.  Indeed, 
they paid Kerkove's medical expenses from the date of the accident 
to December 2, 1994.  Instead, Sherbahn and SBS are requesting that 
we recognize an exception to the rule that prejudgment interest 
accrues from the date of actual notice of the injury.  They argue 
that when defendants have paid medical expenses, prejudgment 
interest should not begin to run until the payments stop, even if 
the jury does not include the payments in the verdict. 

Allowing an exception for the accrual date in this case 
would violate the statutory rule's purpose of simplicity.  The  
bright-line rule of written notice streamlines and simplifies the 
task of choosing the commencement date for prejudgment interest. 
 If we recognized the exception urged by SBS and Sherbahn in this 
case, other defendants could be entitled to several stop and start 
dates when calculating prejudgment interest.  For example, a 
defendant might pay medical expenses from February to March, 
decline to pay from March to June, and then resume payment from 
July until the time of trial.  A trial court would then be faced 
with calculating prejudgment interest from several commencement 
dates, frustrating the statute's purpose of simplicity.  We thus 
decline to recognize an exception allowing a different commencement 
date for the computation of prejudgment interest in this case.
E.	It Was Error to Apply the Enhanced Interest Provision to 
Postjudgment Interest. 

Before trial, Kerkove made an offer of judgment for 
$30,000, inclusive of costs, interest, and attorney's fees.  
Sherbahn and SBS did not accept the offer.  The jury awarded 
$25,000, which exceeded the offer when the court factored in costs, 
interest, and attorney's fees under the formula articulated in 
Farnsworth v. Steiner. 
In its final judgment the superior court applied the 
enhanced interest rate to past economic and non-economic damages as 
well as the future economic loss "until paid." Sherbahn and SBS 
contend that the superior court erred in applying the enhanced 
interest provisions of former Rule 68 and former AS 09.30.065 to 
postjudgment interest because the provisions only allow a court to 
enhance the interest rate up to the date of final judgment.  We 
agree.
Former Alaska Rule of Civil Procedure 68 provides that if 
a defendant refused an offer of settlement that was more favorable 
than the final judgment, a court should enhance the rate of 
prejudgment interest up to the date of final judgment:

(b)	If the judgment finally rendered by 
the court is not more favorable to the offeree 
than the offer, the prejudgment interest 
accrued up to the date judgment is entered 
shall be adjusted as follows:

. . . .

(2)	if the offeree is the party 
defending against the claim, the interest 
rate will be increased by the amount 
specified in AS 09.30.065.[ ]

(Emphasis added.)  Former AS 09.30.065 specifies the amount of the 
rate increase:
If the judgment finally entered on the claim 
as to which an offer has been made under this 
section is not more favorable to the offeree 
than the offer, the interest awarded under AS 
09.30.070 and accrued up to the date judgment 
is entered shall be adjusted as follows:

. . . .

(2)	if the offeree is the party 
defending against the claim, the interest 
rate shall be increased by five percent a 
year.

(Emphasis added.)

Both former Rule 68 and former AS 09.30.065 state that 
only the interest "accrued up to the date judgment is entered shall 
be adjusted." Moreover, the purpose of the rule and statute is "to 
avoid protracted litigation"by encouraging parties to settle 
before trial.   This rationale no longer applies once a court 
enters final judgment after trial.  Because the plain language of 
the rule and statute limit the enhanced interest rate to interest 
accrued before final judgment and because the legislative purpose 
is accomplished upon entry of final judgment, it was error to award 
an enhanced interest rate on damages "until paid."  We thus 
reverse and remand for entry of a judgment consistent with former 
Rule 68 and former AS 09.30.065.
IV.	CONCLUSION
Because the evidence supports the jury's award of future 
economic damages, we AFFIRM the superior court's denial of the 
motion for a directed verdict.  We also AFFIRM both the superior 
court's refusal to reduce the award of future medical expenses to 
present value and its award of prejudgment interest from the date 
of the injury.   But we REVERSE and REMAND because the trial court 
erred in its award of enhanced postjudgment interest.
 	Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 410 
(Alaska 1990); see also Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 
635 (Alaska 1996).
 	See McConkey v. Hart, 930 P.2d 402, 404 (Alaska 1996).
 	See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
 	See Johnson v. Olympic Liquidating Trust, 953 P.2d 494, 
497 (Alaska 1998); Rice v. Denley, 944 P.2d 497, 501 (Alaska 1997).
 	Although a party who moves for a directed verdict 
ordinarily moves for a judgment notwithstanding the verdict (JNOV) 
after the jury returns the verdict, Sherbahn and SBS did not do so. 
 While a party does not preserve a denial of a motion for JNOV for 
appeal unless the party moved for a directed verdict at the close 
of evidence, see Richey v. Oen, 824 P.2d 1371, 1374 (Alaska 1992), 
a party is not required to move for a JNOV to preserve a denial of 
a directed verdict.  In fact, a motion for a directed verdict 
merely provides a moving party with the option of moving for a 
JNOV.  See Alaska R. Civ. P. 50(b) ("[A] party who has moved for a 
directed verdict may move to have the verdict and any judgment 
entered thereon set aside . . . ."(emphasis added)).
 	See Pluid v. B.K., 948 P.2d 981, 984 (Alaska 1997); 
Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994).
 	Pluid, 948 P.2d at 984 (quoting Blumenshine, 869 P.2d at 
473).
 	Id. (alterations in original), quoting Blumenshine, 869 
P.2d at 473.
 	See City of Fairbanks v. Nesbett, 432 P.2d 607, 618 
(Alaska 1967).
 	869 P.2d 470 (Alaska 1994).
 	See id. at 473.
 	See id.  In Blumenshine, we used the terms "reasonable 
certainty"and "reasonable probability"interchangeably.  Although 
"reasonable certainty"sounds more demanding than "reasonable 
probability,"it is intended to have an identical meaning.
 	449 P.2d 766 (Alaska 1969).
 	Id. at 769.
 	See Alaska R. Evid. 103(a)(1); Gilbert v. State, 598 P.2d 
87, 92 (Alaska 1979) ("[T]he basic rule is that failure to object 
to offered evidence waives the objection.").
 	Blumenshine, 869 P.2d at 473 (citation and quotation 
omitted).
 	Id. (citation and quotation omitted).
 	Kerkove also argues that the jury, not the judge, is the 
appropriate entity to reduce the damage award to present value 
because AS 09.17.040(b) states that "[t]he fact finder shall 
reduce"future damages to present value.  (Emphasis added.)  But, 
according to Kerkove, the parties agreed to defer the reduction 
issue until after the jury had rendered its verdict.  Because of 
this understanding, Kerkove cannot rely on this procedural 
argument.
 	Beck v. State, Dep't of Transp. & Pub. Facilities, 837 
P.2d 105, 116-17 (Alaska 1992).	
 	434 P.2d 665 (Alaska 1967); see also Beck, 837 P.2d at 
117 (reaffirming the holding of Beaulieu). 
 	Id. at 671.
 	Beck, 837 P.2d at 117 (footnote omitted).
 	Committee Substitute for Sponsor Substitute for House 
Bill 532, 14th Leg., 1st Sess., Cmt. (1986). 
 	In an earlier draft of AS 09.17.900, the legislature 
defined the term "future damages"as including "damages for future 
medical treatment, care or custody, loss of future earnings, or 
loss of bodily function of the claimant." Committee Substitute for 
Sponsor Substitute for House Bill (C.S.S.S.H.B.) 532, 14th Leg., 
1st Sess. (Tent. Draft 1986).  Although the legislature did not 
include this precise definition in the final draft, its exclusion 
appears to be because it restructured the entire chapter on civil 
damages.  See generally Ch. 139, SLA 1986.
 	Under subsection (c), the requirement that future costs 
be reduced to present value does not apply to future economic 
damages if the parties agree that the Beaulieu rule governs the 
award.  See, e.g., McConkey v. Hart, 930 P.2d 402, 404 n.1 (Alaska 
1996) (parties stipulated that future damages would not be 
discounted to present value).  Both Kerkove and Sherbahn and SBS 
admit that they discussed the matter off record with the trial 
court.  But the parties disagree over what agreement they reached. 
 Sherbahn and SBS maintain that the parties agreed that if the jury 
awarded future damages, the award would be reduced to present value 
after the trial.  Kerkove asserts that the parties agreed to 
proceed under the Beaulieu rule if reduction to present value was 
appropriate.  Precisely because subsection (b) applies unless there 
is an agreement otherwise and because Kerkove and Sherbahn and SBS 
disagree over the rule to be applied, subsection (b) remains the 
proper rule.
 	See Beaulieu, 434 P.2d at 671.
 	Underwater Constr., Inc. v. Shirley, 884 P.2d 150, 155 
n.21 (Alaska 1994) quoting Sherman v. Holiday Constr. Co., 435 P.2d 
16, 19 (Alaska 1967) (citation omitted); see Mundt v. Northwest 
Explorations, Inc., 963 P.2d 265, 270 (Alaska 1998) (suggesting 
that if "a straightforward application of [a statute] yields so 
extreme or absurd a result,"courts may justifiably "bend the plain 
language of the [statute]").
 	AS 09.17.040(b)(2).
 	See Beaulieu, 434 P.2d at 671.
 	See McConkey v. Hart, 930 P.2d 402, 404 (Alaska 1996).
 	If the jury's award had included the $3,300 of bills that 
Sherbahn and SBS had already paid, any award of prejudgment 
interest on that amount would have been error.  But the jury's 
award of the requested $5,000 past economic damages did not include 
the medical bills that Sherbahn and SBS paid.  When they first 
filed a prejudgment computation with the court, Sherbahn and SBS 
calculated prejudgment interest based on the understanding that the 
$5,000 award for past economic loss should be reduced by the 
$3,184.63 they paid up to December 2, 1994.  In response, Kerkove 
opposed any reduction of the award of past medical bills.  He 
argued that when he requested past medical costs of $5,000 at 
trial, he based it on the amount incurred after crediting Sherbahn 
and SBS with their medical payments.  The jury award thus did not 
include those payments.  Apparently accepting Kerkove's argument, 
the trial judge declined to reduce the award for past economic loss 
by the amount of the medical payments.  Sherbahn and SBS have not 
challenged this ruling on appeal.
 	601 P.2d 266 (Alaska 1979).  The Farnsworth case 
presented a detailed formula on how to compute whether the verdict 
exceeds the offer of judgment.  See id. at 269-70 n.4.   Sherbahn 
and SBS do not dispute the Farnsworth calculation in this case.
 	The legislature has significantly amended both Rule 68 
and AS 09.30.065.  Because this cause of action arose in 1994, 
however, the new amendments do not affect this case.  See ch. 26, 
 55, SLA 1997.
 	Continental Ins. Co. v. United States Fidelity & Guar. 
Co., 552 P.2d 1122, 1125-26 (Alaska 1976).
 	Kerkove argues that Sherbahn and SBS waived any objection 
to the enhancement of the postjudgment interest.  As a general 
rule, this court will not consider an issue not raised in a party's 
points on appeal.  See Winn v. Mannhalter, 708 P.2d 444, 449 
(Alaska 1985). Sherbahn and SBS did oppose the award of any 
enhanced interest at the trial level, but they failed to isolate 
their concerns about an enhanced postjudgment award, thus waiving 
the issue for appeal.  Despite this waiver, we may still review the 
alleged error by the trial court under the plain error standard. 
 See McCubbins v. State, Dep't of Natural Resources, Div. of Parks 
and Recreation, 973 P.2d 588, 592 n.4 (Alaska 1999).  Because, 
given the clear wording of the statute, a "high likelihood"exists 
that the trial court's error will result in a "miscarriage of 
justice,"Jaso v. McCarthy, 923 P.2d 795, 800 (Alaska 1996) 
(quotations omitted), we address this error notwithstanding the 
waiver.

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