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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Glamann v Kirk (08/17/2001) sp-5450

Glamann v Kirk (08/17/2001) sp-5450

     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.


individually and as next      )
friend of JESSE GLAMANN,      )
                              )    Supreme Court No. S-9362
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3KO-97-499 CI
CALER),                       )    O P I N I O N
             Appellee.        )    [No. 5450 - August 17, 2001]

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

          Appearances: Brett Von Gemmingen, Anchorage,
for Appellants.  Paul W. Waggoner, Law Offices of Paul W. Waggoner,
Anchorage, for Appellee.

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

          CARPENETI, Justice.

          David Glamann was injured when Gloria (Caler) Kirk's
automobile rear-ended his automobile.  Kirk admitted negligence but
disputed the extent of her liability.  Glamann did not respond to
Kirk's $50,000 offer of judgment, and the case went to trial.  A
jury awarded Glamann $10,000.
          Glamann appeals the trial court's decisions to: (1) admit
evidence of malingering, (2) give an aggravating-cause jury
instruction, (3) deny the motion for a new trial, (4) disallow Mary
Glamann's wage loss claim, and (5) award Kirk attorney's fees.
Because we conclude that the trial court did not err with respect
to the first four issues and that any error with respect to the
award of attorney's fees was harmless, we affirm the verdict and
          On October 10, 1996, Glamann and Kirk were involved in an
automobile collision in Kodiak.  Kirk rear-ended Glamann's stopped
truck.  Glamann's truck then collided with another vehicle. 
Glamann was injured when his head struck the rear window of his
truck's cab, but he did not lose consciousness.  He was stabilized
by medics and taken to Kodiak Island Hospital for x-rays.  Dr.
Kevin Creelman examined Glamann in the emergency room and diagnosed
a scalp contusion and probable neck strain. 
          Glamann had a follow-up appointment with Dr. Creelman on
October 15.  Dr. Creelman prescribed physical therapy for Glamann. 
Glamann attended several sessions in October 1996.  The therapist's
notes from the final October session indicate that treatment would
be discontinued, unless the symptoms returned, based on Glamann's
report of having been headache-free since his last treatment. 
          Between the time of the collision and the end of
December, Glamann was able to work a full schedule in his job as
parts manager for PenAir.  His next appointment with Dr. Creelman
took place on December 20, based on a reoccurrence of headache pain
following a long session splitting wood.  Glamann then returned to
physical therapy at the end of December.  Glamann complained of
headaches following certain activities, including those he enjoyed,
such as shooting and woodsplitting.  At that time, some three to
four months after the collision, Dr. Creelman began prescribing
various medications, including narcotic drugs.  
          In March 1997 Dr. Creelman referred Glamann to Dr. Leon
Chandler, an anesthesiologist and pain management specialist, for
an evaluation and report.  Dr. Chandler determined that Glamann had
incurred a flexion extension injury, or whiplash, in the collision,
with cervical spine injuries that resulted in occipital [Fn. 1]
headaches and occipital neuralgia. [Fn. 2]  Dr. Chandler presented
several options to Glamann for dealing with cervical pain.  These
included cryotherapy (freezing of the nerves at the base of the
skull), occipital nerve blocks (injection of steroids and local
anesthetics in the pain causing nerves), radio frequency lesions of
the cervical nerves (cutting the nerve with a radio frequency
lesion), and cervical epidural stimulator as a last resort.  Over
time, Glamann tried all but the epidural stimulator. 
          In October 1997 Glamann was referred by Dr. Creelman to
the Virginia Mason Clinic in Seattle, Washington.  Glamann was
examined by a neurologist, Dr. Lynn Taylor.  Glamann was also
examined, at the suggestion of Dr. Taylor, in January 1998 by Dr.
Leon Fordyce, a neuropsychologist at Virginia Mason. 
          The Glamanns filed suit against Kirk in December 1997,
claiming that Kirk's negligent failure to stop her car caused the
accident that injured Glamann and, consequently, his family.  Kirk
admitted fault for the collision, but she disputed the extent of
her liability for Glamann's injuries.  Her defense was based in
part on Glamann's prior injuries and conditions: Glamann had
suffered a fractured jaw in a car accident when he was sixteen,
almost thirty years before the collision; x-rays showed the
existence of a fractured vertebra of uncertain origin; and
Glamann's doctors testified that Glamann exhibited signs of a
conversion disorder [Fn. 3] and that his symptoms could not all be
attributed to a physical cause.  During discovery, Kirk hired a
psychologist, Dr. Ronald Ohlson, to evaluate Glamann. 
          Glamann filed two motions in limine: the first to exclude
evidence of malingering or secondary gain, [Fn. 4] the second to
exclude evidence of other accidents and injuries.  Superior Court
Judge Donald D. Hopwood denied both motions. 
          Kirk made Glamann an offer of judgment for $50,000, plus
costs, interest and attorney's fees, on June 12, 1998.  Glamann did
not respond to the offer of judgment.
          In addition to her loss of consortium claims, Glamann's
wife submitted a wage loss claim for approximately $1,800 for the
time she missed work due to the need for her to drive Glamann to
his medical appointments.  The court did not allow Mary Glamann's
lost wages claim to go to the jury. 
          During trial, Kirk proposed that a jury instruction be
given on aggravating cause.  Over Glamann's objection, the trial
court gave the instruction. 
          The parties dispute the economic loss incurred by
Glamann.  Glamann claims that at the time of trial his past medical
expenses totaled over $33,000, his past economic loss exceeded
$31,000, and his out-of-pocket expenses totaled more than $12,000. 
Kirk, on the other hand, calculates the total medical cost for the
three months following the collision to be $2,013.30.  Kirk also
points out that Glamann worked a full schedule during that time. 
          The jury initially awarded Glamann, in a special verdict,
$8,000 for past economic damages only.  Because the court found the
lack of award for past non-economic damages inconsistent with the
award for past economic damages, the jury was instructed to
reconsider its award.  The jury ultimately awarded Glamann $8,000
in past economic damages, $2,000 in past non-economic damages, and
nothing for future damages. 
          The trial court denied Glamann's motion for a new trial 
and awarded Kirk, as prevailing party, fifty percent of her actual
attorney's fees under Alaska Civil Rule 82(b)(3). [Fn. 5] 
          Glamann appeals: (1) the denial of his motion to exclude
evidence of malingering; (2) the use of the aggravating-cause jury
instruction; (3) the denial of his motion for a new trial; (4) the
trial court's disallowance of Mary Glamann's lost wages claim; and
(5) the award of attorney's fees to Kirk.
          We review a trial court's decision as to admissibility of
evidence for an abuse of discretion. [Fn. 6]
          We review jury instructions to which a timely objection
was made de novo. [Fn. 7]  A special verdict form is a type of jury
instruction subject to the same standard of review for jury
instructions. [Fn. 8]
          Trial courts are accorded discretion in the decision to
grant or deny a new trial. [Fn. 9]  We will "affirm a trial court's
decision to deny a new trial if there is an evidentiary basis for
the jury's decision," viewing the evidence in the light most
favorable to the non-moving party. [Fn. 10]
          Whether the trial court erred in disallowing a lost wages
claim is a question of law subject to de novo review. [Fn. 11]
          Generally, the determination as to which party is the
prevailing party is subject to review for an abuse of discretion,
[Fn. 12] as is a trial court's award of enhanced attorney's fees.
[Fn. 13]  But whether the trial court, in determining the award of
attorney's fees, applied the law correctly is a question of law
that we review de novo, applying "the rule of law that is most
persuasive in light of precedent, reason, and policy." [Fn. 14]
     A.   The Trial Court Did Not Abuse Its Discretion by Admitting
Evidence of Malingering.
          Glamann argues that the trial court abused its discretion
when it denied his motion to exclude reference to whether he 
malingered or sought secondary gain.  In the court below, Glamann
relied on Evidence Rules 402 and 403 to support his motion to
exclude reference to malingering and secondary gain, arguing that
references to or insinuations of malingering or secondary gain
would be confusing or misleading to a jury and thus prejudicial. 
On appeal, Glamann implies that he was prejudiced contending that
the use of the term "malingering" has "a powerful impact on the
jury."  Glamann claims that at the time he filed his motion, there
was no witness who would testify, to a medical certainty, that he
was a malingerer. 
          Kirk opposed the motion based on the existence of expert
testimony that Glamann's pain was psychological and not based upon
a physical source, as well as on non-medical testimony supporting
her claim that Glamann was engaged in secondary gain.  Kirk argues
that juries routinely deal with questions of whether a plaintiff is
trying to take advantage of the system and that she was entitled to
present such evidence and to argue reasonable inferences based on
the evidence presented. 
          Relevant evidence may be excluded if the trial court
"finds its probative value is outweighed by the risk that it will
have a prejudicial effect on the jury, confuse the issues, or
mislead the jury." [Fn. 15]  Credibility determinations are the
quintessential province of the jury. [Fn. 16]  Only if the evidence 
was unfairly prejudicial should it be excluded.
          The contention that Glamann is a malingerer, or is
engaged in secondary gain, or that he exaggerated the extent of his
injuries, is relevant -- not only to Glamann's credibility, but
also to the more fundamental question of how much harm Kirk's
negligence actually caused.
          Glamann's contention that the admission of evidence of
malingering and secondary gain was either confusing, misleading, or
unfairly prejudicial is baseless.  He had the opportunity to show
the validity of his injuries with the testimony of numerous
experts.  The substance of the testimony was that he was not
malingering; the experts concurred on this.  But quantity of
testimony does not entitle Glamann to a judicial determination that
his evidence should be believed. [Fn. 17]  There was also evidence
that many of Glamann's symptoms were not entirely legitimate.  For
example, he was physically able to do his job following the
collision, including lifting ninety-three pound batteries and
forty-pound tires.  Dr. Ohlson, Dr. Taylor, and Dr. Fordyce all
agreed that Glamann's symptoms were more psychological than
physical, and that his use of narcotics was inappropriate. 
          Further, Dr. Taylor reported that Glamann's neurological
exam was normal but that he had inadvertently become "trapped in
the chronic pain syndrome." [Fn. 18]  She opined that an increase
in pain after engaging in activities that the sufferer enjoys, such
as Glamann's headaches suffered following shooting, was consistent
with a conversion disorder.  She also testified that she could not
determine in which accident Glamann fractured his vertebra.
          Dr. Fordyce conducted an exam designed in part to
determine whether a person is malingering or has a conversion
disorder.  He testified that Glamann had tendencies toward a
conversion disorder.  Dr. Fordyce also thought that experiencing
pain after enjoyable activities could be consistent with a
conversion disorder, but was unsure.  Dr. Fordyce acknowledged that
he and Dr. Taylor were concerned that Glamann's pain had gone on
too long given his physical injuries. [Fn. 19] 
          When asked about whether psychological stress can be
converted to pain, Kirk's expert, Dr. Ohlson, answered in the
affirmative.  Dr. Ohlson went on to conclude that Glamann suffered
under a number of stressors, but he was not of the opinion that
Glamann was a malingerer.  And there was also evidence of other
stressors in Glamann's life.  Dr. Ohlson testified that Glamann had
"long standing anxiety problems."  Glamann's supervisor at PenAir
testified that Glamann had conflicts with his co-workers.  Glamann
quit his job in September 1997 based in part on problems with co-
workers; he wrote a letter to a co-worker claiming that the co-
worker's "criticism has a destructive result upon my well-being." 
          The evidence of malingering, secondary gain, or
exaggeration was not unfairly prejudicial.  The evidence was
directly relevant to the jury's determinations as to credibility
and causation, and was neither confusing nor misleading.  There was
no abuse of discretion in allowing the jury to consider evidence of
malingering or secondary gain.
     B.   The Trial Court Did Not Err When It Instructed the Jury
on Aggravating Cause.
          Glamann contends that the court's instruction on
aggravating cause [Fn. 20] was erroneous because it violates "the
princip[le] that a tortfeasor takes its victims as it finds them"
and because "a tortfeasor is liable for all proximately caused
injuries."  He argues that because the medical testimony was
"unanimous" that the collision "triggered" his injuries, the trial
court should not have given the jury the aggravating-cause
instruction.  Glamann also contends that the aggravating-cause
instruction improperly shifted the burden of proof to Glamann. 
          1.   The aggravating-cause jury instruction properly
states the law.
          Contrary to Glamann's contention, the aggravating-cause
instruction correctly states and clarifies the law for the jurors:
The defendant must take the victim as the defendant finds the
victim and is liable for those injuries caused or aggravated by
defendant's negligence. [Fn. 21]  Where the plaintiff claims that
the defendant is responsible for the full extent of the claimed
injuries, the plaintiff does not deny the existence of a prior
injury or condition, there is evidence of a causal connection
between the prior injury or condition and the current injury or
condition, and the trial court admits such evidence at trial, the
aggravating-cause instruction is an appropriate clarification of
the jurors' duty in determining the extent of liability. [Fn. 22] 
We have approved the use of an aggravating-cause instruction almost
identical to the one at issue here in a case involving liability
for injuries incurred in a car accident. [Fn. 23] 
          2.   Unanimity of medical testimony did not make the
giving of the aggravating-cause instruction error.
          Glamann's contention that giving the jury instruction was
an abuse of discretion because the medical testimony was
"unanimous" as to the accident being the cause of his injuries is
without merit because there was some evidence linking a prior
injury with injuries incurred in the October 1996 accident.  A
jury's determination of cause is not based on a tally of witnesses'
testimony.  In this case, there was sufficient evidence to
establish the existence of a disputed issue of material fact for
the jury's consideration.  As Jury Instruction 8 states, the jury
is to decide an issue by "the convincing force of the evidence,"
not by the relative number of witnesses. 
          Based on all the evidence, reasonable minds could differ
as to the cause of all of Glamann's claimed injuries.  At oral
argument, Glamann conceded to this court the existence of a pre-
existing mental condition.  In addition, there was evidence as to
a vertebra fracture, numerous stressors in Glamann's life, and the
likelihood that he suffered from a conversion disorder as well as
from a degenerative disc disease.  Furthermore, when Dr. Taylor was
asked ". . . if [Glamann's] facet joint had very much significance
you really couldn't tell which accident it was fractured in, could
you?", she answered "no."  Under all of these circumstances, the
questions of causation and aggravating cause were properly
submitted to the jury.
          3.   The aggravating-cause instruction did not
improperly allocate the burden of proof.
          The issue of Glamann's prior accidents, injuries, and
conditions is not an affirmative defense for which Kirk bears the
burden of proof, as Glamann contends; it is simply a defense to
allegations of liability.  "An affirmative defense can generally be
defined as new matter not set forth in the complaint which
constitutes a defense; or new matter which, assuming the complaint
to be true, is a defense to it." [Fn. 24]  Glamann asserted that
Kirk's negligence caused his injuries.  Kirk disputed the extent of
her liability for Glamann's injuries -- a matter asserted in the
complaint.  Kirk's dispute did not constitute an affirmative
defense.  It thus remained Glamann's burden to prove that Kirk
caused his claimed injuries.  The aggravating-cause instruction did
not improperly shift the burden.
          We conclude that the trial court did not err in
instructing the jury as to aggravating cause.
     C.   The Trial Court Properly Denied Glamann's Motion for a
New Trial.
          1.   The evidence is sufficient to support the jury's
          A decision to deny a new trial will be reversed only "if
the evidence supporting the verdict was so completely lacking or
slight and unconvincing as to make the verdict plainly unreasonable
and unjust." [Fn. 25]   
          Glamann first argues that a new trial should have been
allowed because the jury award of $8,000 for past economic damages,
$2,000 for past non-economic damages, and nothing for future
damages, was internally inconsistent.  
          While Kirk concedes that the initial jury verdict was
inconsistent, she argues that the inconsistency was corrected by
resubmitting the question of past economic and non-economic loss to
the jury.  We agree.
          We discussed internal inconsistency of a jury award in
McCubbins v. State, Department of Natural Resources, Division of
Parks and Recreation, [Fn. 26] a case in which a swimmer sued a
landowner for neck injuries incurred when he dove into water and
struck his head on a submerged rock.  The jury awarded future
medical expenses, but failed to award anything for loss of future
earning capacity. [Fn. 27]  We held that the award was inconsistent
and that reversal of the verdict and a new trial on the issue of
damages were therefore required. [Fn. 28]  This case is
          It is not disputed that the first jury verdict was
internally inconsistent because the jury awarded past economic
damages but no past non-economic damages.  But any inconsistency
was cured when Judge Hopwood instructed the jury to reconsider its
verdict and award past non-economic damages if its conclusion was
that Glamann suffered past economic loss.  The final jury verdict
awarded both past economic and non-economic damages and made no
award for either future economic or non-economic loss.  The jury
apparently concluded that Kirk was not responsible for the full
extent of Glamann's injuries.  This decision could have been based
on its determination as to duration, or extent, of his injuries. 
Regardless of its basis, the award is internally consistent and is
therefore not a basis for a new trial. 
          Glamann next argues that the verdict is facially
inadequate because he asked for economic damages ranging from
$88,000 to $396,386 plus non-economic damages, but was only awarded
$10,000.  He contends that Pugliese v. Perdue [Fn. 29] supports his
contention that an inadequate verdict is enough to support reversal
of the trial court's denial of his motion for a new trial in this
case.  He argues that the references to malingering and other
factors affecting his injuries "apparently had an effect" on the
jury because the award "did not even begin to compensate David for
his past wage loss" and "compensated [him] only through March of
          Inadequacy of a jury verdict is grounds for a new trial
in cases where negligence is conceded or proved, but no damages are
awarded.  For example, in Grant v. Stoyer, the defendant admitted
negligence in a personal injury case stemming from an automobile
accident, but the parties disputed the scope and extent of
plaintiff's injury. [Fn. 30]  We reversed a jury verdict of no
causation and no award of damages because the evidence was
uncontroverted that the accident injured the plaintiff. [Fn. 31] 
We held that "where negligence and causation of compensable
physical injury are conceded or proved, and where evidence of at
least some pain and suffering is substantial and uncontroverted,
some damages ordinarily must be awarded." [Fn. 32]  And in
Pugliese, we observed that "[t]he undisputed facts establish[ed]
that Perdue negligently drove his pickup truck into Pugliese, a
collision involving direct bodily impact" and injury to Pugliese.
[Fn. 33]  Because the jury failed to award Pugliese any recovery,
we concluded that the verdict was "unreasonable and unjust," and
remanded for a new trial. [Fn. 34]  
          But where the jury makes some award in cases where
negligence is conceded or proved, we have not reversed that award
as inadequate.  For example, in another automobile accident case,
Hayes v. Xerox Corporation, a jury returned a lump sum general
verdict. [Fn. 35]  We allowed that verdict to stand, even though
there was no specific award for pain and suffering, observing that
the lump sum indicated that the jury had not ruled out non-economic
damages. [Fn. 36]  We noted that "[t]he jury could believe that
[the plaintiff] exaggerated the extent of his injuries and pain and
suffering." [Fn. 37]  And in Hutchins v. Schwartz, another
automobile accident case, we affirmed the superior court's denial
of a motion for a new trial in part because reasonable minds could
have differed as to the causal connection between Hutchins's back
injury incurred in the accident and subsequent diagnosis of a
hiatal hernia. [Fn. 38]  We stated that "jurors make credibility
choices and determine the weight to be given the evidence" and that
they could have concluded that Hutchins had not suffered any
substantial losses, given the significant evidence of malingering,
exaggeration, and fraud presented at trial. [Fn. 39]  
          Glamann's reliance on Pugliese for his contention that
the verdict is inadequate and not supported by the evidence is
misplaced.  In this case, the jury did not fail to return a verdict
in his favor.  The jury made a considered choice as to what it
believed Kirk owed for losses to Glamann: $8,000 for past economic
damages and $2,000 for past non-economic damages.  We cannot say
that this is an unreasonable award.  And, as in Hutchins, there is
an evidentiary basis for the jury's determination: Glamann had been
injured in a prior accident; he worked a full schedule in the
eleven weeks immediately following the accident; his recurring
headaches began after he engaged in other activities; he had
numerous stressors in his life, both before and after the accident;
and medical experts testified to his possible conversion disorder
and inappropriate use of narcotics.  
          Glamann argues that the award only compensates him
through March 1997.  But this is not a basis to find the jury award
inadequate; the jury could have decided that he suffered no
injuries from the accident after that date. 
          Because there is evidentiary support for the verdict we
conclude that the superior court did not err in denying the motion
for new trial.
          2.   The superior court did not abuse its discretion
when it refused to further itemize the special verdict form.
          "It is within the sound discretion of the trial court to
select those questions the jury is required to answer in a special
verdict form.  Moreover, it is not error to refuse to submit a
question or instruction where the issue is adequately covered by
other questions or instructions." [Fn. 40] 
          Glamann argues that the trial court erred when it refused
to further itemize the special verdict form after the initial jury
verdict was determined to be inconsistent.  Glamann relies on this
court's "approval" of specific itemization in a special verdict
form in McCubbins as allowing the trial court to more easily
discern inconsistencies.  But McCubbins does not govern our
decision on this issue.  McCubbins was a case about internal
consistency of a jury verdict, not the required degree of a special
verdict form. [Fn. 41] 
          Kirk, in turn, contends that the verdict form used was
proper and consistent with AS 09.17.040(a), [Fn. 42] and that no
further itemization was required.  We agree. 
          A special verdict form is subject to the same standard of
review as jury instructions and thus errors in a special verdict
form "will not be grounds for reversal unless they caused
prejudice." [Fn. 43]  There is no evidence that the special verdict
form in this case caused prejudice.  The verdict form met the
requirements of AS 09.17.040(a): It included separate responses for
past economic damages, past non-economic damages, future economic
damages and future non-economic damages.  Because the damages
question was adequately itemized, the trial court did not abuse its
discretion when it refused to require further itemization.
     D.   The Superior Court Did Not Err in Disallowing Mary
          Glamann's Damages Claim for Lost Wages.
          Glamann argues that the wage loss claim of his wife
should have been allowed because it would not have been a double
recovery.  He claims that he could have claimed the costs for
transportation to his appointments and recovered that cost, and
that it should make no difference that it was framed in terms of
his wife's wage loss.  He argues that Hibpshman v. Prudhoe Bay
Supply, Inc. [Fn. 44] should apply to allow joinder of the spouse's
          Kirk contends that the superior court properly disallowed
Mary Glamann's wage loss claim as a matter of law under Heritage v.
Pioneer Brokerage and Sales, Inc. [Fn. 45]  We agree that Heritagecontrols.
          In Heritage, we considered whether a husband could
recover on a wage loss claim when the lost wages were based on his
decision to provide nursing services to his injured wife. [Fn. 46] 
We held that if the husband's wage loss was "attributable to his
decision to provide nursing services to his wife, he may not be
permitted to introduce evidence of the losses at trial." [Fn. 47] 
We also concluded that a determination of when support is necessary
in a close family relationship is "too speculative to be made part
of the general recovery of tort victims." [Fn. 48]
          The Hibpshman case is inapposite.  The decision there
dealt with the requirement of joinder of a child's loss of
consortium claim resulting from injuries tortiously inflicted on
the child's parents by a third party, [Fn. 49] not for wage loss
due to services rendered by a spouse. 
          In this case, Mary Glamann's lost wages claim stemmed
from her decision to transport her husband to his medical
appointments because he was medicated and could not take himself. 
In light of Heritage, we decline to find such circumstances to
warrant the allowance of a wage loss claim.  There is no legal
basis to support Mary Glamman's claim for lost wages.
     E.   The Superior Court's Award of Attorney's Fees to Kirk
under Civil Rule 82 Was Harmless Error.
          The trial court concluded that Kirk was the prevailing
party and awarded her fifty percent of her actual attorney's fees. 
Glamann argues that he was the prevailing party in this case
because he received an affirmative recovery, even if less than
asked for, and thus the award to Kirk was erroneous.  But Kirk
contends that because she made an offer of judgment for $50,000,
which Glamann did not accept, and because the verdict was only
$10,000, she is entitled to attorney's fees as the prevailing
          "The trial court has wide discretion in awarding
attorney's fees to a prevailing party." [Fn. 50]  When a party
receives a substantial recovery, he or she is considered to be,
with few exceptions, the prevailing party for purposes of
attorney's fees under Rule 82. [Fn. 51]  But in cases where an
offer of judgment has been made, there is no need for the court to
determine the prevailing party because that status is determined by
the provisions of Rule 68, as is the award of attorney's fees. [Fn.
          In this case, the trial court did not rely on Civil Rule
68 for its award of attorney's fees, but instead considered Kirk to
be the prevailing party for purposes of an award of enhanced
attorney's fees under Rule 82(b)(3).  Because of Glamann's failure
to better the offer of judgment, the court's reliance on Rule 82
was plain error.  But because Kirk was entitled to attorney's fees
under Rule 68(b), and because the offer-of-judgment rule requires
that she be considered the prevailing party, [Fn. 53] we conclude
that this error was harmless.
          "We will interfere with the trial court's determination
as to attorney's fees only if the award is manifestly
unreasonable." [Fn. 54]  Kirk incurred attorney's fees in excess of
$44,000 and was awarded half of those fees.  It is possible that
Kirk made her offer of judgment early enough in these proceedings
to be eligible for more than fifty percent of her attorney's fees.
[Fn. 55]  But because Kirk has not cross-appealed the award of
attorney's fees, the failure to consider the potentially higher
award is harmless.  And we conclude that the trial court's award of
half of her actual attorney's fees is not manifestly unreasonable. 
Accordingly, we affirm the award of attorney's fees.
          Because the superior court did not err in admitting
evidence of malingering, giving an aggravating-cause instruction,
denying the motion for a new trial, and disallowing Mary Glamann's
wage loss claim, and because any error with respect to the award of
attorney's fees was harmless, we AFFIRM the judgment in all


Footnote 1:

     Dr. Chandler testified that "occipital" refers to the base of
the skull. 

Footnote 2:

     Dr. Chandler testified that "occipital neuralgia" is an
irritation of the nerves coming from the joint in the neck, which
can cause headaches. 

Footnote 3:

     Dr. Fordyce testified that a "conversion disorder" occurs
where a person converts psychological forces, such as anxiety or
depression, into physical symptoms. 

Footnote 4:

     To malinger is "to pretend to be ill or otherwise physically
or mentally incapacitated so as to avoid duty or work" or "to
deliberately induce, protract, or exaggerate actual illness or
other incapacity so as to avoid duty or work."  Webster's Third New
International Dictionary of the English Language Unabridged 1367
(1993).  Secondary gain is defined as "pleasure derived from a
neurosis primarily necessary to the individual for other reasons." 
Id. at 2051.  Dr. Ohlson compared the two and testifed that
"malingering is when [one] consciously tell[s] a lie in order to
get something," and that "[s]econdary gain is really a reward for
being sick in this context."  

Footnote 5:

     The order cites Civil Rule 82(a)(3), but we conclude that this
was a typographic error and that the judge meant Rule 82(b)(3).

Footnote 6:

     See Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 632 (Alaska

Footnote 7:

     See Griffith v. Taylor, 12 P.3d 1163, 1166 (Alaska 2000).

Footnote 8:

     See Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000).

Footnote 9:

     See Grant v. Stoyer, 10 P.3d 594, 596 (Alaska 2000).

Footnote 10:

     Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999).

Footnote 11:

     See Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988).

Footnote 12:

     See Andrus v. Lena, 975 P.2d 54, 58 (Alaska 1999) (citing
Barber v. Barber, 915 P.2d 1204, 1209 n.10 (Alaska 1996)).

Footnote 13:

     See Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000).

Footnote 14:

     Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1266
(Alaska 1999).

Footnote 15:

     Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1150 n.20
(Alaska 1999).

Footnote 16:

     See, e.g., Hayes v. Xerox Corp. 718 P.2d 929, 934 (Alaska

Footnote 17:

     Jury Instructions 4 and 5 explain that the jurors are the sole
judges of credibility and weight to be given to the evidence, as
well as informing them that they are to decide which witnesses to
believe, including experts. 

Footnote 18:

     Dr. Fordyce testified that "chronic pain syndrome" is the
experience of debilitating pain over time that is not explained by
underlying medical facts. 

Footnote 19:

     Both doctors recommended that Glamann attend the Virginia
Mason pain management clinic, a program that costs approximately
$25,000 to $30,000. 

Footnote 20:

     Jury Instruction 18 provided:

               A person who has a condition or
disability at the time of an injury cannot recover damages for that
condition or disability.  However, he or she is entitled to recover
damages for an aggravation of such preexisting condition or
disability if the aggravation is the legal result of the injury.
               This is true even if the person's
condition or disability made him or her more susceptible to the
possibility of ill effects than a normally healthy person would
have been, and even if a normally healthy person probably would not
have suffered any substantial injury.  In other words, the law
provides that a defendant takes the plaintiff as he or she finds
               Where a preexisting condition or
disability is so aggravated, the damages as to such condition or
disability are limited to the additional damages caused by the

Footnote 21:

     Compare LaMoureaux v. Totem Ocean Trailer Express, Inc., 632
P.2d 539, 543-44 (Alaska 1981), with Jury Instruction 18, supra

Footnote 22:

     See, e.g., Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996)
(concluding that whether "a requested jury instruction should be
given lies in the discretion of the trial court.  However, the
general rule is that the defendant is entitled to a jury
instruction on a defense theory if there is 'some evidence' to
support it." (internal citation omitted)).

Footnote 23:

     See LaMoureaux, 632 P.2d at 543-44; see also Alaska Pattern
Civil Jury Instruction 20.11.

Footnote 24:

     Bowman v. Blair, 889 P.2d 1069, 1071 n.2 (Alaska 1995)
(quoting Rollins v. Leibold, 512 P.2d 937, 940 (Alaska 1973)).

Footnote 25:

     Grant, 10 P.3d at 596.

Footnote 26:

     984 P.2d 501, 502-3 (Alaska 1999).

Footnote 27:

     See id. at 503.

Footnote 28:

     See id. at 509.

Footnote 29:

     988 P.2d 577 (Alaska 1999).

Footnote 30:

     10 P.3d at 595.

Footnote 31:

     See id. at 596, 600.

Footnote 32:

     Id. at 598.

Footnote 33:

     988 P.2d at 581.

Footnote 34:

     Id. at 583.

Footnote 35:

     718 P.2d 929, 931 (Alaska 1986).

Footnote 36:

     See Grant, 10 P.3d at 598 (explaining and distinguishing

Footnote 37:

     Hayes, 718 P.2d at 934.

Footnote 38:

     724 P.2d 1194, 1203 (Alaska 1986).

Footnote 39:


Footnote 40:

     Alaska Bussell Elec. Co. v. Vern Hickel Const. Co., 688 P.2d
576, 581 (Alaska 1984) (internal quotation marks and citations

Footnote 41:

     McCubbins, 984 P.2d at 506-07.

Footnote 42:

     AS 09.17.040(a) provides:

          In every case where damages for personal
injury are awarded by the court or jury, the verdict shall be
itemized between economic loss and noneconomic loss, if any, as
               (1) past economic loss;
               (2) past noneconomic loss;
               (3) future economic loss;
               (4) future noneconomic loss; and
               (5) punitive damages.

Footnote 43:

     Stinson v. Holder, 996 P.2d 1238, 1244 (Alaska 2000).

Footnote 44:

     734 P.2d 991, 997 (Alaska 1987).

Footnote 45:

     604 P.2d 1059 (Alaska 1979).

Footnote 46:

     Id. at 1064-65.

Footnote 47:

     Id. at 1065.

Footnote 48:


Footnote 49:

     Hibpshman, 734 P.2d at 997.

Footnote 50:

     Hutchins, 724 P.2d at 1204.

Footnote 51:

     See, e.g., Blumenshine v. Baptiste, 869 P.2d 470, 474 (Alaska

Footnote 52:

     See Alaska R. Civ. P. 68.

Footnote 53:

     The parties dispute which version of Rule 68 is applicable to
this case because Glamann's cause of action accrued prior to August
7, 1997, but he did not file his complaint until after that date. 
However, we need not resolve that question because under either the
former or current version of Rule 68, Glamann's failure to better
Kirk's offer of judgment required the trial court to consider Kirk
the prevailing party.  Compare former Rule 68(b)(1) [applicable to
cases filed before August 7, 1997, Alaska Supreme Court Order No.
1281 (August 7, 1997)] with current Rule 68(c).

Footnote 54:

     Hutchins, 724 P.2d at 1204 (internal quotation marks omitted).

Footnote 55:

     See Alaska R. Civ. P. 68(b)(1) and former Alaska R. Civ. P.