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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.
-24- 5178
