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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska General Alarm, Inc. v. Grinnell (4/21/00) sp-5263

Alaska General Alarm, Inc. v. Grinnell (4/21/00) sp-5263

     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


ALASKA GENERAL ALARM, INC.,   )
                              )    Supreme Court No. S-8318
               Petitioner,    )
                              )    Superior Court No.
          v.                  )    3AN-94-10730 CI
                              )
GRINNELL, a Delaware          )    O P I N I O N
corporation,                  )
                              )
               Respondent.    )    [No. 5263 - April 21, 2000]
                              )


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


          Appearances:  Patrick J. McKay and Michael R.
Wirschem, Law Offices of Patrick J. McKay, and A. Robert Hahn, Jr.,
Anchorage, for Petitioner.  Robert P. Blasco, Robertson, Monagle &
Eastaugh, P.C., Juneau, for Respondent.  Kenneth M. Gutsch,
Richmond & Quinn, Anchorage, for Amicus Curiae The Defense Counsel
of Alaska.  Mauri Long and Kristen D. Pettersen, Dillon & Findley,
P.C., Anchorage, for Amicus Curiae Alaska Academy of Trial Lawyers. 
Raymond M. Funk, Assistant Attorney General, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for Amicus Curiae State of
Alaska. 


          Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices.  [Compton, Justice, not participating.]


          BRYNER, Justice.


I.   INTRODUCTION
          The superior court held that a third-party defendant sued
for apportionment of fault under AS 09.17.080 after the statute of
limitations on the plaintiff's underlying personal injury claim had
run may nonetheless be liable to the plaintiff for money damages.
Because we find that the statute of limitations for tort actions
does not apply to claims for equitable apportionment, we affirm.
II.  FACTS AND PROCEEDINGS
          On June 4, 1993, Cheryl McIntire, Yvonne Dann, and Morgan
Coggswell (hereinafter "McIntire") were allegedly injured when
halon was discharged from a fire protection system in the Boney
Courthouse in Anchorage.  At the time, technicians from Grinnell
Corporation and Alaska General Alarm, Inc., were examining the
system to detect the cause of recent false alarms.
          McIntire sued Grinnell on December 2, 1994.  Grinnell
answered the complaint on January 19, 1996, and, on August 13,
1996, filed a third-party complaint against Alaska General Alarm,
claiming that it was responsible in whole or part for any injuries
sustained by McIntire.  Alaska General Alarm answered and filed a
motion for partial summary judgment, asserting the defense of
statute of limitations because the third-party complaint was filed
more than two years after the halon incident. [Fn. 1]  The superior
court denied the motion, holding that the statute of limitations
did not bar a third-party complaint for apportionment of damages. 
Alaska General Alarm petitioned for review, and we granted the
petition. [Fn. 2] 
III. DISCUSSION
     A.   Standard of Review
          The sole issue presented is whether the superior court
erred in holding that a third-party defendant sued for
apportionment of fault under AS 09.17.080 after the statute of
limitations on the underlying claim had run may still be liable to
the plaintiff for money damages.  In resolving questions of
statutory construction, this court applies its independent judgment
[Fn. 3] and adopts "the rule of law that is most persuasive in
light of precedent, reason, and policy." [Fn. 4]
     B.   Background of AS 09.17.080
          Before 1986, Alaska followed the rule of joint and
several liability, which allowed a plaintiff to recover all damages
from one named defendant; that defendant could then seek
reimbursement from other at-fault parties by filing an action for
contribution within one year of judgment. [Fn. 5]  The statute at
issue in this case repealed that joint and several liability
scheme;  enacted by voter initiative, [Fn. 6] AS 09.17.080 provided
that a plaintiff can recover from each party only in accordance
with that party's percentage of fault. [Fn. 7] 
          In striking down the existing scheme of joint and several
liability, the voter initiative repealed AS 09.16, which had set
out a contribution procedure that allowed defendants, after entry
of judgment against them, to seek pro rata reimbursement from
culpable third parties. [Fn. 8]  But the newly enacted statute
providing for apportioned liability established no comparable
procedure to allow named defendants to allocate fault to
potentially responsible parties that the plaintiff had not sued. 
          We addressed this omission in Benner v. Wichman. [Fn. 9] 
The defendant in Benner argued that the superior court erred by not
instructing the jury that it could apportion liability for a
construction accident among all those responsible for the
plaintiff's injuries, including the plaintiff's employer and the
general contractor, who were not parties to the lawsuit. [Fn. 10] 
We rejected this broad reading of the statute, holding that "party"
within the meaning of AS 09.17.080 was restricted to "parties to
the action, including third party defendants and settling parties."
[Fn. 11]  We also concluded -- in the absence of any explicit
statutory procedure -- that equity demanded that defendants be
allowed to mitigate their damages by filing third-party claims
against other potentially responsible persons. [Fn. 12] 
          The following year, we adopted Alaska Civil Rule 14(c) to
establish the procedure that defendants could use for equitable
apportionment of damages to third parties who had no direct
liability to the defendant but were potentially responsible to the
plaintiff.  Rule 14(c) provides that a defendant, as a third-party
plaintiff, may join any party whose fault may have been a cause of
the damages claimed by the plaintiff. [Fn. 13]  The rule specifies
that a judgment may be entered against the third-party defendant in
favor of the plaintiff even in the absence of a direct claim. [Fn.
14]
     C.   The Superior Court Did Not Err in Holding that the
Statute of Limitations for Tort Actions Is No Bar to Equitable
Apportionment.

          Alaska General Alarm argues that the superior court's
ruling allowing Grinnell to implead it as a third-party defendant
with potential liability to McIntire even though the statute of
limitations had run was based on a misreading of Benner and a
misapplication of Civil Rule 14(c).  The company contends that it
should not be liable to the plaintiff as a third-party defendant if
the plaintiff cannot sue it directly. 
          The superior court's ruling was based on two premises:
(1) our holding in Benner mandates that fault only be apportioned
among parties to an action; and (2) under Civil Rule 14(c), a party
joined for apportionment of fault is also liable to the plaintiff
for damages.  The superior court concluded on the basis of these
authorities that a third party cannot be joined solely to reduce
the percentage of fault attributable to a named defendant.  Thus,
the superior court held that equity demanded that liable defendants
be permitted to sue third parties for apportionment of fault after
the statute of limitations on the underlying claim has expired.
          We agree that it was implicit in our holding in Benner
that fault can only be apportioned under AS 09.17.080 to parties
who may be liable to the plaintiff for money damages, including
third-party defendants and settling parties. [Fn. 15]  Civil Rule
14(c) effectuates this purpose by allowing defendants to implead
third-party defendants who then may become liable to the primary
plaintiff. [Fn. 16]  Although AS 09.17.080 does not address the
limitations period, construing the statute to require that
defendants file third-party claims for apportionment within the
statute of limitations governing the plaintiff's underlying claim
would give plaintiffs exclusive control over which at-fault parties
shared liability.  This would defeat the initiative's purpose to
allocate damages not to one named defendant but to all those at
fault. [Fn. 17]  There is no express statutory language or
legislative history supporting this inequitable result.
          1.   Allowing empty chair defendants would contravene 
               Benner v. Wichman and the purpose of AS 09.17.080.

          In Benner we held -- after noting that a defendant's
right to contribution from other at-fault parties did not survive
the Tort Reform Initiative -- that "equity requires that defendants
have an avenue for bringing in others who may be liable to the
plaintiff." [Fn. 18]  To describe this remedy, we chose the term
"equitable apportionment" as opposed to "equitable indemnity" to
convey that we were vindicating not just the right of defendants to
have damages apportioned in accordance with their fault, but the
commensurate duty of responsible third parties to pay plaintiffs.
[Fn. 19]  The purpose of limiting fault allocation to joined
parties -- more specifically, to parties potentially liable to the
plaintiff, rather than "empty chair" defendants -- was to ensure
that fault was accurately litigated. [Fn. 20]  As explained in the
commentary to the Uniform Comparative Fault Act, which we relied on
in Benner, a fair apportionment of fault requires adversarial fact-
finding:
          The limitation to parties to the action means
          ignoring other persons who may have been at
fault with regard to the particular injury but who have not been
joined as parties. This is a deliberate decision.  It cannot be
told with certainty whether that person was actually at fault or
what amount of fault should be attributed to him, or whether he
will ever be sued, or whether the statute of limitations will run
on him, etc.  An attempt to settle these matters in a suit to which
he is not a party would not be binding on him. Both plaintiff and
defendants will have significant incentive for joining available
defendants who may be liable.  The more parties joined whose fault
contributed to the injury, the smaller the percentage of fault
allocated to each of the other parties, whether plaintiff or
defendant.[ [Fn. 21]]   

          The risk entailed in shifting blame to an "empty chair"
is well-illustrated by the circumstances of this case: if the
statute of limitations were a bar to Alaska General Alarm's
liability and it were impleaded for purposes of fault allocation
alone, Grinnell would have every motivation to blame Alaska General
Alarm for McIntire's injuries.  But Alaska General Alarm, facing no
liability, would have little incentive to defend itself.  The
burden thus would fall on McIntire to demonstrate that Grinnell was
at fault and that Alaska General Alarm was not.  This burden
shifting would encourage defense counsel to wait until the statute
of limitations expired to join third parties, and would frustrate
recovery by plaintiffs. [Fn. 22] 
          This result could be avoided by holding that additional
defendants cannot be joined for allocation of either fault or
liability once the limitations period for the underlying cause of
action has expired.  But this solution would create its own
unfairness.  If a complaint is filed on the last day allowed by the
statute of limitations, a defendant would as a practical matter
have no opportunity to apportion fault to responsible third parties
[Fn. 23] --  a result that we rejected as inequitable in Benner.
[Fn. 24]  Other jurisdictions for the same reason have held that a
defendant's right to contribution under joint and several liability
should not be limited by the two-year statute of limitations for
tort claims. [Fn. 25] 
          Amicus curiae State of Alaska suggests that allowing late
joinder of third-party defendants for purposes of allocating
liability, rather than merely fault, is barred by language in
AS 09.17.080 requiring the court to consider the nature of the
conduct of each party at fault, but to award damages and enter
judgment only against each party liable. [Fn. 26]  On this point we
agree with the Supreme Court of Utah, which looked at similar
language in its comparative fault statute and concluded that "the
statutory scheme, taken as a whole, allows the court to consider
the fault of any person, but to allocate fault only to plaintiffs,
defendants, and [under the Utah statute] persons immune from suit."
[Fn. 27]  Moreover, the language distinguishing between findings of
fault and judgments based on liability was originally drafted by
the legislature as part of a comparative fault statute that
retained joint and several liability; consequently, it is
unpersuasive evidence of the intent of the Tort Reform Initiative's
drafters to allocate fault without liability. [Fn. 28] 
          We thus conclude, as did the superior court, that under
the comparative fault scheme at issue here third parties must be
joined for purposes of allocating fault and liability, or not at
all.  Moreover, the limitations period governing the underlying
claim should not bar the liability of third-party defendants to the
plaintiff for their share of fault. [Fn. 29]  To hold otherwise
would abandon the statute's stated purpose -- apportioning
liability equitably among at-fault parties [Fn. 30] -- in favor of
a defense to liability that finds no support in the language or
history of the statute and is generally disfavored by courts. [Fn.
31]
          2.   The history of the Tort Reform Initiative does not
support applying the statute of limitations to actions to apportion
liability to third parties.   
          This conclusion does not require us to hold, as Alaska
General Alarm and amici curiae suggest, that the Tort Reform
Initiative "impliedly repealed" AS 09.10.070, the statute of
limitations governing tort actions.  In forwarding this argument,
Alaska General Alarm and amici curiae assume that, unless impliedly
or expressly repealed, this provision would necessarily govern the
equitable apportionment remedy that we established in Benner and
Rule 14(c).  But this assumption is unwarranted.  
          Before the 1987 Tort Reform Initiative that led to
passage of AS 09.17.080, the Alaska Uniform Contribution Among
Joint Tortfeasors Act [Fn. 32] provided that joint tortfeasors
shared equally in their common liability to the plaintiff, rather
than according to the comparative fault of each. [Fn. 33]  Under
that system, which was repealed in 1989 by the Tort Reform
Initiative, the defendant had one year from judgment or settlement
of the plaintiff's claim to sue for reimbursement from other
culpable parties for any payment it made to the plaintiff in excess
of its pro-rata share. [Fn. 34]  This rule was not peculiar to
Alaska, but reflects the generally recognized view, endorsed by the
Uniform Comparative Fault Act, [Fn. 35] the Restatement, [Fn. 36]
and by virtually all jurisdictions, that third-party claims for
contribution or indemnity are separate from underlying tort actions
from which they arise: 
          The rule generally recognized in most
jurisdictions is that the cause of action for contribution or
indemnity based upon tort is distinct from the cause of action for
the underlying tort, and the time when the statute of limitations
starts to run upon such cause of action is not when the tort is
committed, but when the underlying claim, a judgment thereon, or a
settlement thereof is paid or discharged.[ [Fn. 37]]

          The traditional reason for applying a separate statute of
limitations to actions for contribution or indemnity is that a
defendant's cause of action against a potentially responsible third
party does not accrue until there is a judgment or settlement on
the primary action. [Fn. 38]  But despite the notion that such
actions only accrue upon judgment, some jurisdictions with third-
party contribution statutes allow or require defendants to litigate
their contribution claims concurrently with the underlying tort
claims, yet continue to apply a separate statute of limitations
that is triggered by the date of settlement or judgment. [Fn. 39] 

          The equitable apportionment remedy that we adopted in
Benner and implemented in Civil Rule 14(c) bears a far closer
relationship to these kinds of third-party claims than to the
underlying tort actions.  Although impleading third parties to
litigate their pro-rata contribution under a joint and several
liability regime and impleading third parties to apportion fault
under a scheme of several liability result in different methods of
allocating damages, the procedural distinctions between these
remedies is largely semantic.  In both cases the defendant, not the
plaintiff, initiates the third-party claim, and at its root the
claim is a mechanism for spreading damages. [Fn. 40]  And as shown
above, Rule 14(c)'s procedure for apportioning damages under AS
09.17.080 cannot be distinguished from more traditional
contribution and indemnity actions merely because it allows
defendants to serve third-party complaints and litigate these
claims before they technically "accrue" -- that is, before judgment
or settlement. 
          Moreover, we find no indication in the legislative
history that the drafters of the Tort Reform Initiative intended to
turn a third-party procedure well established in this state and the
common law on its head. [Fn. 41]  As Alaska General Alarm points
out, the legislative history of AS 09.17.080 contains no mention of
the effect of the Tort Reform Initiative on the statute of
limitations. The scant legislative history demonstrates that the
initiative's supporters were concerned almost exclusively with
ensuring that defendants would be liable only for their share of
fault. [Fn. 42]  The legislative history also reveals no trace of
intent to apportion fault without liability.  The statement in
support reads in relevant part:
          If Ballot Measure No. 2 is passed, and you do
something wrong, you pay for it.  But you would not be forced to
pay for something you didn't do -- which could happen under present
law.[ [Fn. 43]]

The legislative affairs agency summary also provides:
          The new law would tell the court to enter
judgment against each person at fault, but only in an amount that
represents that person's share of the fault.[ [Fn. 44]]

Yet, as discussed above and as we recognized in Benner, subjecting
third-party apportionment claims to the statute of limitations for
torts would virtually compel the apportionment of fault without
liability. 
          Thus, although the ballot initiative undeniably repealed
the statute of limitations governing contribution when it repealed
the contribution statute itself, AS 09.16, it appears that voters
repealed these provisions as superfluous -- because a pure
comparative fault regime rendered it theoretically unnecessary for
defendants to seek post-judgment reimbursement, particularly given
existing civil rules that generally permit liberal joinder of third
parties. [Fn. 45]  Because merging distinct causes of action for
tort and equitable apportionment of damages under a single statute
of limitations would defeat the initiative's goal of allocating
damages fairly among named responsible parties, we cannot assume
that the voters intended this result.
          Accordingly, we find no basis in law, reason, or
precedent to conclude that an action commenced by a third-party
complaint to apportion damages under AS 09.17.080, filed in
accordance with Civil Rule 14(c), should be governed by
AS 09.10.070, the statute of limitations governing the underlying
tort claim -- a distinct cause of action. [Fn. 46]  
          In the present case, Grinnell filed its third-party
complaint for apportionment of damages prior to judgment.  Because
third-party actions of this kind are traditionally deemed to accrue
upon judgment or settlement, our conclusion that Grinnell's action
is distinct from McIntire's underlying action in tort makes it
unnecessary to decide what period of limitation might apply to an
apportionment action filed after judgment or settlement.  Here, the
distinct nature of the causes provides a sufficient basis for
rejecting Alaska General Alarm's claim that Rule 14(c)
impermissibly created a substantive right by trumping the statute
of limitations for torts.
IV.  CONCLUSION
          The decision of the superior court denying Alaska General
Alarm's motion for summary judgment is AFFIRMED.


                            FOOTNOTES


Footnote 1:

     AS 09.10.070 provides, in relevant part, that an action for
personal injuries must be "commenced within two years of the
accrual of the cause of action."


Footnote 2:

     On January 20, 2000, following full briefing and submission of
the case for decision, Alaska General Alarm notified this court
that the parties had entered into a settlement agreement.  Alaska
General Alarm nevertheless moved for issuance of an opinion
resolving this case, asserting that review continues to be
appropriate under the public interest exception to the mootness
doctrine.  Counsel for Alaska General Alarm attests that the issue
presented in this case has arisen in more than 10 other superior
court cases and has generated inconsistent decisions in the
superior court.  Amicus Curiae Defense Counsel of Alaska
subsequently joined in Alaska General Alarm's motion, urging that 

          [t]he court's advisory opinion would resolve
the split of authority within the trial courts as to the
application of the statute of limitation to third-party defendants
impleaded after the statute of limitations expires.  The issue has
generated much litigation, which may be avoided in the future with
an advisory opinion from this court. 

          We find these arguments persuasive.  In addition, we note
that, after granting the petition for review in the present case,
we granted another petition seeking review of a similar ruling in
Arctic Cat v. Alaska Cycle Center, No. S-8820 (Alaska, November 16,
1998) (order granting petition for review).  But before the parties
filed their briefs in Arctic Cat, the case settled and we dismissed
it as moot.  See Arctic Cat v. Alaska Cycle Ctr., No. S-8820
(May 5, 1999) (order dismissing appeal).  This experience helps
persuade us that the issue presented may continue to evade review. 

          Because the issue is one of considerable public
importance, has arisen repeatedly, and has led to conflicting
rulings among the superior courts, we believe that immediate review
is warranted despite the parties' settlement agreement.  See, e.g.,
State, CSED v. A.H., 880 P.2d 1048, 1049-50 (Alaska 1994).


Footnote 3:

     See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 512 (Alaska
1998); Van Alfen v. Van Alfen, 909 P.2d 1075, 1077 n.4 (Alaska
1996).


Footnote 4:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 5:

     See former AS 09.16.010-.060 (1970).


Footnote 6:

     See 1988 Election Pamphlet for Initiative No. 87TOR2, sec. 1,
prepared pursuant to AS 15.58.010.  The ballot initiative amended
the Limitations on Civil Liability Act, former AS 09.17.010-.900
(1986), a legislative effort at tort reform that had retained joint
and several liability. 


Footnote 7:

     McIntire's cause of action accrued in 1993 and is governed by
former AS 09.17.080 (1989), which provided:

          Apportionment of damages. (a) In all actions
involving fault of more than one party to the action, including
third-party defendants and persons who have been released under AS
09.16.040, the court, unless otherwise agreed by all parties, shall
instruct the jury to answer special interrogatories or, if there is
no jury, shall make findings, 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 of
all the parties to each claim that is allocated to each claimant,
defendant, third-party defendant, and person who has been released
from liability under AS 09.16.040.

               (b)  In determining the percentages of
fault, the trier of fact shall consider both the nature of the
conduct of each party at fault, and the extent of the causal
relation between the conduct and the damages claimed. The trier of
fact may determine that two or more persons are to be treated as a
single party if their conduct was a cause of the damages claimed
and the separate act or omission of each person cannot be
distinguished.

               (c)  The court shall determine the award
of damages to each claimant in accordance with the findings,
subject to a reduction under AS 09.16.040, and enter judgment
against each party liable.  The court also shall determine and
state in the judgment each party's equitable share of the
obligation to each claimant in accordance with the respective
percentages of fault.
 
               (d)  The court shall enter judgment
against each party liable on the basis of several liability in
accordance with that party's percentage of fault.

(Emphasis indicates section amended by voter initiative.)


Footnote 8:

     See 1988 Election Pamphlet for Initiative No. 87TOR2,  sec. 2,
prepared pursuant to AS 15.58.010.


Footnote 9:

     874 P.2d 949 (Alaska 1994).  


Footnote 10:

     See id. at 955.


Footnote 11:

     See id. at 958.


Footnote 12:

     See id. at 956-57.  We explained: 

          The initiative did away with one category of
claims -- contribution.  It did not purport to abolish all claims
between defendants and potential third-party defendants. . . . Nor
does the initiative prevent courts from vindicating duties that
nonlitigants owe plaintiffs by authorizing joinder of those
litigants.  In the absence of contribution, we hold that equitable
apportionment is available as a means of bringing other tortfeasors
into the action.

Id.  (Citations and footnotes omitted.)


Footnote 13:

     Alaska R. Civ. P. 14(c) provides:

               Equitable Apportionment. (c) For purposes
of apportioning damages under AS 09.17.080, a defendant, as a
third-party plaintiff, may follow the procedure of paragraph (a) to
add as a third-party defendant any person whose fault may have been
a cause of the damages claimed by the plaintiff. Judgment may be
entered against a third-party defendant in favor of the plaintiff
in accordance with the third-party defendant's respective
percentage of fault, regardless of whether the plaintiff has
asserted a direct claim against the third-party defendant. 


Footnote 14:

     See id.


Footnote 15:

     See 874 P.2d at 955-58.


Footnote 16:

     See Alaska R. Civ. P. 14(c).


Footnote 17:

     See infra note 42 and accompanying text.


Footnote 18:

     874 P.2d at 956.


Footnote 19:

     See id. at 956 & n.17.


Footnote 20:

     See, e.g., National Farmers Union Property and Cas. Co. v.
Frackelton, 662 P.2d 1056, 1060 (Colo. 1983) ("By requiring the
jury to apportion 100 percent of the negligence among the parties
[and not to non-parties], the burden of persuading the factfinder
to resolve the comparative negligence equation is shared equally
between the plaintiffs and the tortfeasors who participate in the
trial.").


Footnote 21:

     874 P.2d at 958 n.19 (quoting Unif. Comparative Fault Act sec.
2
cmt., 12 U.L.A. 50 (Supp. 1993))(emphasis omitted).  Alaska General
Alarm argues that the reference in this comment to the statute of
limitations evidences an awareness by the drafters of the Uniform
Comparative Fault Act that the statute of limitations can expire
before a person is joined as a "party."  But we read the passage to
refer to non-parties who -- because they have no opportunity or
incentive to litigate their defense -- could be allocated fault
without regard to the fact that the statute of limitations had run
on the direct claim.  Even if we accepted Alaska General Alarm's
reading of this passage, its analysis fails because the uniform act
allows for joint and several liability. Consequently, dismissal of
a plaintiff's claim against one defendant on statute of limitations
grounds would not result in the inequities discussed here.  That
plaintiff could recover from the remaining defendants, who would
then have a year to sue the dismissed party for reimbursement.
      Unif. Comparative Fault Act sec. 2(d) & cmt., 12 U.L.A. 135-
38.


Footnote 22:

     Amici curiae The Defense Counsel of Alaska and State of Alaska
note that this unfairness could be avoided by the plaintiff's
decision to sue a third-party defendant within the statute of
limitations.  This analysis fails to address circumstances where
the plaintiff, in spite of diligent discovery, is unaware of a
potentially responsible party until it is identified by the
defendant.  Some states have addressed this problem by statute. 
See, e.g., Iowa Code Ann. sec. 668.8 (1998) (filing of a petition
under comparative fault chapter tolls the statute of limitations
for the commencement of an action against all parties who may be
assessed any percentage of fault);  Tenn. Code Ann. sec. 20-1-119
(1999) (if defendant alleges in answer that non-party caused or
contributed to injury and plaintiff's cause of action is barred by
the statute of limitations, plaintiff has 90 days to amend
complaint or institute separate action against that non-party).


Footnote 23:

     This is exactly what occurred in Reeve v. Union Pacific
Railroad Co. v. Jefferson, 790 F. Supp. 1074 (D. Kan. 1992). The
federal district court, applying Kansas law, held that the statute
of limitations for comparative implied indemnity claims begins to
run when the underlying plaintiff's cause of action accrues.  Id.
at 1078.  Because the plaintiff's claim was filed one day before
the statute of limitations expired, the defendant was prevented
from impleading other at-fault parties.  Id. at 1079. Recognizing
the harshness of this result, the court noted: "It is not this
court's function to pass judgment on the propriety of state laws." 
Id.


Footnote 24:

     See 874 P.2d at 956-57.


Footnote 25:

     See, e.g., Goldsberry v. Frank Glendaniel, Inc., 109 A.2d 405,
408 (Del. Super. 1954) (legislature would not create right to
contribution and then place it in power of the original plaintiff
to decide whether it could be exercised); Roehrig v. City of
Louisville, 454 S.W.2d 703, 704 (Ky. 1970) (reason statute of
limitations does not run from time of tort injury is so injured
party cannot foreclose right to contribution by suing just before
statute expires).


Footnote 26:

     The portions of AS 09.17.080 cited by the state provide:

          (b)  In determining the percentages of fault,
the trier of fact shall consider both the nature of the conduct of
each party at fault, and the extent of the causal relation between
the conduct and the damages claimed.

          (c)  The court shall determine the award of
damages to each claimant in accordance with the findings and enter
judgment against each party liable. . . .

          (d)  The court shall enter judgment against
each party liable on the basis of several liability in accordance
with that party's percentage of fault.


Footnote 27:

     See Field v. Boyer Co., L.C., 952 P.2d 1078, 1081 (Utah 1998). 
The Utah court noted situations in which the conduct of an unknown
tortfeasor -- for example, an erratic driver -- might be considered
by the court in determining how to divide 100% of the liability
between the plaintiff and defendant.


Footnote 28:

     Compare former AS 09.17.080 (1986) with former AS 09.17.080
(1989).  Only section (d) of the statute was amended by the Tort
Reform Initiative.


Footnote 29:

     A different balancing of interests may apply where the third-
party defendant is immune from judgment for some reason other than
the statute of limitations because in that instance a plaintiff
could not recover from the third party regardless of the timing of
the complaint.


Footnote 30:

     See infra note 43 and accompanying text (text of 1988 Election
Pamphlet for Initiative No. 87TOR2 prepared pursuant to
AS 15.58.010 (Statement in Support)); see also Vail v. Coffman
Eng'rs, Inc., 778 P.2d 211, 213 (Alaska 1989) (the interpretation
of a statute begins with an examination of the language of the
statute construed in light of its purpose).


Footnote 31:

     See Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d 848, 854
(Alaska 1991) ("[A]lthough the defense of the statute of
limitations is a legitimate one, it is generally disfavored by the
courts.").


Footnote 32:

     Former AS 09.16.010-.060 (1970).


Footnote 33:

     See Colt Indus. Op. Corp. v. Murphy Mfr., Inc., 822 P.2d 925,
934-36 (Alaska 1991).


Footnote 34:

     See former AS 09.16.030(c) (1970) ("If there is a judgment for
the injury or wrongful death against the tortfeasor seeking
contribution, any separate action by him to enforce contribution
must be commenced within one year after the judgment has become
final by lapse of time for appeal or after appellate review."); see
also Criterion Ins. Co. v. Laitala, 658 P.2d 112, 114 n.3 (Alaska
1983) (action for contribution by defendant may be commenced within
one year after judgment or post-judgment settlement has become
final even if the statute of limitations has expired, citing former
AS 09.16.030(c) (1970)).


Footnote 35:

     See Unif. Comparative Fault Act sec. 5(c), 12 U.L.A. 145-46
(separate action to enforce contribution may be filed at any time
within one year after judgment in the original underlying action).


Footnote 36:

     See Proposed Final Draft of the Restatement (Third) of Torts
sec. 33 cmt. k (1999) ("[A] person is not protected from
contribution
by the fact that the plaintiff would be precluded from recovery
because of a statute of limitation.").


Footnote 37:

     See When Statute of Limitations Commences to Run Against Claim
for Contribution or Indemnity Based on Tort, 57 A.L.R. 3d 867, 874
(1974) (citations omitted).


Footnote 38:

     See id. at 873, 912-13 (citing cases for this proposition).


Footnote 39:

     See id.; see also Wright, Miller & Kane, Federal Practice and
Procedure sec. 1448, at 388-89 (2d ed. 1990).


Footnote 40:

     Indeed, the draft Restatement (Third) of Torts recognizes that
even under apportioned liability a defendant sued in an action in
which fewer than all the relevant persons have been joined might be
liable for more than its percentage of fault and thus might be
entitled to "contribution."  See Proposed Final Draft, Restatement
(Third) of Torts sec. 33 cmt. f (1999).


Footnote 41:

     See Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 
(Alaska 1998) ("We shall look to the purpose indicated by the
legislature in passage of an act in our effort to determine whether
the new enactment is intended to repeal a prior one.").


Footnote 42:

     As the ballot language explained:

          The initiative would make each party liable
only for damages equal to his or her share of fault, and repeal the
law concerning reimbursement from other parties. 

1988 Election Pamphlet for Initiative No. 87TOR2 prepared pursuant
to AS 15.58.010 (Ballot Language).

          The legislative affairs summary also states:

          Existing law now tells the court to enter
judgment against each person at fault in an amount equal to the
total liability of all persons at fault. Those at fault are
required to share the total cost of the fault. The measure repeals
that law.

Id. (Legislative Affairs Summary). 


Footnote 43:

     Id. (Statement in Support) (emphasis added).


Footnote 44:

     Id. (Legislative Affairs Summary) (emphasis added).


Footnote 45:

     See Alaska R. Civ. P. 14(a).


Footnote 46:

     This conclusion is in harmony with Alaska Civil Rule 14(a) and
(c), which, in authorizing a defendant to file a third-party
complaint for purposes of apportioning damages under AS 09.17.080
"[a]t any time after commencement of the action," were intended to
be neutral on the statute of limitations question.  As Alaska
General Alarm points out, when originally proposed, Civil Rule
14(c) limited the ability of a defendant to add a third-party
defendant to situations in which the third-party defendant "may be
wholly or partially liable to the plaintiff."  In response to this
proposal, comments were submitted to the court expressing concern
that this language would preclude a defendant from impleading
parties who were not liable to the plaintiff because of the statute
of limitations or some other immunity from suit.  To address this
concern, the rule was changed to allow a defendant to implead for
purposes of apportioning damages under AS 09.17.080 "any person
whose fault may have been a cause of the damages claimed by the
plaintiff."