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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lexington Insurance Co. v. Lindahl Construction & Engineering, Inc. (5/24/2002) sp-5574

Lexington Insurance Co. v. Lindahl Construction & Engineering, Inc. (5/24/2002) sp-5574

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


LEXINGTON INSURANCE           )
COMPANY, a Delaware corporation,   )    Supreme Court No. S-9701
WESTCHESTER FIRE INSURANCE    )
COMPANY,  a New York corporation,  )    Superior Court No. 4FA-98-
659 CI
AGRICULTURAL INSURANCE   )
COMPANY, a Delaware corporation,   )    O P I N I O N
THE TRAVELERS INDEMNITY  )
COMPANY OF ILLINOIS, an Illinois   )    [No. 5574 - May 24, 2002]
corporation, and FIREMANS FUND     )
INSURANCE COMPANY,  a         )
California corporation,            )
                              )
             Appellants,      )
                              )
     v.                       )
                              )
LINDAHL CONSTRUCTION AND )
ENGINEERING, INC., an Alaska  )
corporation, STEVEN M. LINDAHL,    )
an individual, and the STATE OF    )
ALASKA,                       )
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:   William  Grant   Callow,   Law
          Offices   of  William  Grant  Callow,   P.C.,
          Anchorage,  and  Paul  V.  Esposito,  Clausen
          Miller,   P.C.,   Chicago,   Illinois,    for
          Appellants.   Steven  M.  Lindahl,  pro   se,
          Holmes   Beach,  Florida.   Randy  M.  Olsen,
          Assistant  Attorney General,  Fairbanks,  and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for Appellee State of Alaska.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          Fire  damaged the Denali Princess Lodge in 1996.   Five

insurance companies paid the lodge owner under policies  covering

property and business interruption loss.  The insurance companies

then  sued  the  State  of Alaska, claiming that  it  negligently

approved  building plans which did not satisfy the  1979  Uniform

Building  Code (UBC) and negligently failed to require a one-hour

fire-resistive enclosure around a lodge furnace.  They also  sued

the contractor that built the lodge, claiming that it negligently

failed  to follow the building code.  The superior court  granted

summary  judgment to the defendants, holding that  the  1985  UBC

applied  and that it did not require a one-hour fire wall  around

the  furnace.  We affirm, because there are no genuine issues  of

material fact and the defendants were entitled to judgment  as  a

matter of law.

II.  FACTS AND PROCEEDINGS

          In  1986 Princess Tours hired Lindahl Construction  and

Engineering,  Inc., as the general contractor for its  new  hotel

complex  near  Denali  National Park.   Jerry  Moberg,  Princesss

project   engineer,  began  discussing  the  project   and   code

requirements with a state deputy fire marshal, Charles Lee Davis,

in  May 1986.  At the time of those early conversations the  1979

Uniform Building Code was still in effect in Alaska.  It was  not

until  August  2,  1986  that the 1985 UBC  became  effective  in

Alaska.1  On July 31, 1986 Princess submitted its application for

plan  review  to  the  states Department of Public  Safety,  Fire

Marshals  Office, and paid the fees for the review.  It  did  not

submit  the project plans with the application.  On the same  day

Lindahl  and  Moberg met with another state deputy fire  marshal,

Ernest  Misewicz, to discuss the project.  Lindahl wrote a letter

to  Misewicz  confirming the discussion:  To confirm  the  topics

discussed  in your office on 7/31/86, I have enclosed a  list  of

          items that were discussed for your records . . . .  The letter

listed  several  items of discussion, including  13.  The  entire

project  will  be reviewed under the 1979 U.B.C. codes.   Lindahl

testified in his deposition that he believed this statement was a

request  by Princess to have the project reviewed under the  1979

UBC,  and  that it did not reflect an affirmative answer  by  the

state to apply the 1979 UBC.

          On August 12, 1986 Deputy Fire Marshal Davis spoke with

Moberg by telephone.  Davis asked Moberg what version of the  UBC

Princess  was  using to formulate its plans.  Davis  told  Moberg

that  if Princess wanted the state to apply the 1979 UBC  to  the

project,   Princess   needed  to  submit  a   letter   requesting

application  of  the 1979 UBC.  Although the  state  received  on

August  15, 1986  Lindahls letter recounting the July 31  meeting

between  Lindahl,  Moberg, and Misewicz, the  supervisor  of  the

State Fire Marshals Office later stated in an affidavit that  the

state  did  not receive any other writing representing  Princesss

desire to have the building plans reviewed under the 1979 UBC.

          The   building  plans  divided  the  hotel  into   four

buildings:  Building 1 contained hotel rooms,  a  lobby,  a  gift

shop,  and offices; Building 2 contained hotel rooms; Building  3

contained  the  restaurant;  and  Building  4  housed  employees.

Building 4 was separate from the others and was the only building

to survive the fire.

          By  letter  of  September 11, 1986 Deputy Fire  Marshal

Misewicz   authorized  Lindahl  to  begin  foundation  work   for

Buildings 1 and 2, but forbade further work until complete  plans

for  the  project were received and approved.  The letter  warned

that  the  distance  between  Building  1  and  Building  3   was

insufficient  to  meet the standards set out  in  the  1985  UBC.

Princess did not communicate any objection to this application of

the  1985 UBC to the lodge project.  Misewicz reviewed the  plans

for  Buildings  1 and 2 on September 23 under the  1985  UBC  and

classified  Buildings 1 and 2 as Occupancy:  R-1.   He  issued  a

certificate of plan review on September 29.  On October 22,  1986

Lindahl wrote Misewicz regarding the classification of the  lobby

and  reception area in Building 1.  By letter of October 23, 1986

Misewicz replied, stating that the lobby/reception area/foyer  of

Building  1  was considered one area and that [t]he 1985  Uniform

Building  Code  classifies  this  area  as  an  Assembly  3  (A3)

[o]ccupancy.  Princess did not object to this classification.

          In  March  1996  fire  destroyed three  of  the  Denali

Princess  Lodge  buildings.  As a result of  the  fire  Lexington

Insurance    Company   and   four   other   insurance   companies

(collectively   Lexington)   paid  Princess   Tours   more   than

$18,000,000.   The state fire inspector concluded that  the  fire

started at the furnace in the crawlspace of Building 1.

          In   March  1998  Lexington  filed  a  superior   court

complaint   that  alleged,  among  other  things,  that   Lindahl

Construction   and  Engineering,  Inc.,  breached   its   general

construction  contract with Princess Tours by failing  to  comply

with  the owner-approved plans and specifications, and by failing

to  comply with all applicable building and fire codes, including

the  requirement of a one-hour fire wall around the furnace where

the  fire  allegedly started.  The complaint  also  alleged  that

Lindahl  Construction and Steven Lindahl individually  failed  to

exercise due care in constructing the four buildings, causing the

fire  to spread from the crawlspace under Building 1 to Buildings

2 and 3.  Finally, the complaint alleged that the State of Alaska

failed  to exercise due care in reviewing the plans submitted  by

Lindahl  Construction for Building 1 because the plans  contained

no  provision  for a one-hour fire wall around the furnace  where

the fire allegedly started.

          In September 1999 the state moved for summary judgment;

it  argued that the 1985 UBC was the applicable building code and

that  the 1985 UBC did not require fire walls around the furnaces

in  the  Princess Lodge because the furnaces were located  in  an

assembly area (A-3) or a business area (B-2).  In September  1999

Lindahl,  representing both his construction company and  himself

pro  se,  moved for summary judgment.  He also argued  that  fire

walls were not required under the 1985 UBC for the lobby area  of

Building 1.  He then adopted the states similar motion,  and  the

state adopted Lindahls motion.

          Lexington  argued  in  its opposition  to  the  summary

judgment motions that the 1979 UBC applied to the Denali Princess

Lodge  project  because  the  application  for  plan  review  was

submitted to the Fire Marshals Office on July 31, 1986, two  days

before  the 1985 UBC took effect, and because Deputy Fire Marshal

Misewicz had agreed to apply the 1979 UBC.  Lexington also argued

that the furnace was located in an R-1 area and that the 1979 and

1985  UBC  both required one-hour fire walls around  furnaces  in

that  area.  The state argued in response that Misewicz  did  not

err in reviewing the Building 1 plans under the 1985 UBC and that

[t]he 1985 UBC was the proper code to govern the construction  of

Building 1.

          The  superior court granted summary judgment  in  April

2000  to  the  state,  Lindahl Construction, and  Steven  Lindahl

individually.  It concluded that as a matter of law the 1985  UBC

applied to the Denali Princess Lodge project.  It also held  that

the  states A-3 classification of the lobby area was not  legally

infirm  or  an  abuse of discretion, and that the state  was  not

negligent in failing to require a one-hour fire wall because  the

1985  UBC did not require a fire wall for furnaces built  in  A-3

areas.

          The state moved for attorneys fees.  Lexington opposed,

claiming that the states attorneys had devoted twice as much time

to  the  case  as Lexingtons attorneys.   The state replied  that

Lexingtons  comparison of its hours spent on the  case  with  the

states  was  faulty because much of Lexingtons legal  work  would

have been done before Lexington filed suit.  The state also filed

a motion to require Lexington to disclose the total time spent on

the  case from the time of the fire.  Without deciding this  last

motion,  the  superior  court  entered  final  judgment  for  all

defendants  and  awarded the state $54,471.12 for attorneys  fees

and paralegal fees.

          Lexington appeals the grant of summary judgment to  the

defendants and the award of attorneys fees.

III. DISCUSSION

     A.   Standard of Review

          We review the dismissal of Lexingtons claims on summary

judgment de novo.2  A summary judgment movant must establish that

there  are  no  genuine issues of material fact and  that  it  is

entitled  to  judgment as a matter of law.3   We  will  draw  all

reasonable   factual  inferences  in  favor  of  Lexington,   the

nonmoving  party.4   Summary judgment  is  inappropriate  if  the

parties  genuinely dispute any facts material to a  viable  legal

theory.5  We apply our independent judgment to questions of  law,

adopting  the  rule of law most persuasive in  light  of  reason,

precedent, and policy.6

          We  review  an award of Alaska Civil Rule 82  attorneys

fees for an abuse of discretion.7

     B.    The Superior Court Did Not Err in Concluding that  the

1985 UBC       Applied to Building 1.

          1.    No  factual dispute about whether the  state  was

required  to review            the Denali Princess Lodge building

plans under the 1979 UBC is             material.

          Lexington  argues  that there is  a  genuine  issue  of

material  fact  whether Lexington and the state agreed  that  the

1979  UBC  would  govern the Denali Princess Lodge  project.   In

making  this argument Lexington relies in part on  the  July  31,

1986  letter  to  Deputy Fire Marshal Misewicz in  which  Lindahl

writes: The entire project will be reviewed under the 1979 U.B.C.

codes.  The state argues that the letter was only a recitation of

discussion topics and not an agreement to apply the 1979  UBC  to

the  project.  The state also claims that once Princess  received

oral  advice  that the 1985 UBC was already in effect  and  would

          control, Princess offered no objections to the application of the

later  code.   The  supervisor of the State Fire Marshals  Office

provided  an affidavit stating that after Moberg and Davis  spoke

on  August 12, 1986, Princess made no written requests  that  the

plans be reviewed under the 1979 UBC.

          The  grant  of  summary judgment to the state  must  be

overturned if we determine that any genuine factual disputes  are

material.8  Viewed in a light most favorable to Lexington,  there

may  be a factual dispute about the significance of Lindahls July

31, 1986 letter to the state.  But Lexingtons complaint alleged a

negligence cause of action against the state based on the  states

review  and  approval  of  the  building  plans  and  the  states

subsequent  fire  safety inspections.  Lexington  reiterated  its

negligence  claim  in  its opposition to the  states  motion  for

summary  judgment;  Lexington stated that [o]ne  of  the  reasons

[Lexington]  claim[s] [the state] was negligent in this  case  is

because  Mr.  Misewicz  reviewed this  project  under  the  wrong

edition  of  the  Uniform Building Code at the time  he  did  his

building plans review.  Lindahls letter may indicate that it  was

contemplated or even expected during initial discussions  between

Lindahl, Moberg, and Misewicz that the 1979 UBC would apply.  But

as  a  matter of law it was the 1985 UBC that was in effect  when

Misewicz actually reviewed the plans in late September 1986.

          Lexingtons cause of action necessarily assumes that the

state  breached  the applicable standard of care  by  failing  to

apply the 1979 UBC and by classifying the commercial area as  A-3

rather  than R-1.9  At the time of his plans review in September,

however, Deputy Fire Marshal Misewicz had no legal obligation  or

authority to apply the 1979 UBC because the 1985 UBC was  already

in effect.  It was the 1985 UBC, along with the classification of

the commercial area, that governed Lexingtons negligence claim.10

Perhaps  if  Lexington had asserted a negligent misrepresentation

claim  or  a contract claim, the states earlier alleged agreement

to  apply the 1979 UBC, and its initial characterization  of  the

          commercial area as R-1, would have raised a genuine, material

factual dispute.  But because Lexington actually asserted only  a

negligence claim, its claim turns on whether the state breached a

duty  at the time it approved the plans; pre-approval events  are

of   no   consequence.   Since  Deputy  Fire  Marshal   Misewiczs

application  of  the 1985 UBC after it became effective  did  not

breach  the negligence standard of care, we do not need to decide

whether  he arguably could have been required to apply  the  1979

UBC by agreement with Princess or otherwise.

          Although we need not examine whether there is a genuine

issue of material fact about  whether the parties agreed to apply

the 1979 UBC, we note that basic contract principles cast serious

doubt  on Lexingtons claim that the state entered into a  legally

binding  agreement  to  apply the earlier UBC.   Lexington  cites

Bloomstrand  v. State11 for the proposition that silence  may  be

deemed  an  admission  when a silent person could  be  reasonably

expected  to  speak.   That  case  involved  constitutional   and

criminal  law  issues  related to a defendants  right  to  remain

silent in a homicide investigation;12 it is of no relevance here.

          Instead, it is instructive to consider Lexingtons claim

of   an  alleged  agreement  with  the  state  in  a  contractual

environment.  We have previously held in the context  of  summary

judgment  that  to  demonstrate the existence of  a  contract  or

legally binding agreement, a party must point to evidence showing

that  the opposing party unequivocally accepted an offer by words

and  actions that objectively manifested an intent to be bound.13

Without  this showing we will not disturb the summary judgment.14

We  have  also  held that silence operates as  acceptance  of  an

agreement  only in cases where a party has  reason to  understand

that  assent may be manifested by silence . . . , and the [party]

in  remaining silent . . . intends to accept the offer.  15   The

states silence upon receiving Lindahls July 31, 1986 letter  does

not  demonstrate  the  type of clear knowledge  of  an  agreement

required  to  bind the state.  Also, Lexington does  not  make  a

          sufficient showing through the states actions or written or

spoken  words that the state assented to an agreement that  would

potentially  subject  it to the type of liability  Lexington  now

alleges.

          Lexington  further  argues  that  Deputy  Fire  Marshal

Misewiczs August 20, 1986 letter to Lindahl seeking clarification

of work relating to Building 4 evinced the states intent to enter

into  an  agreement to apply the 1979 UBC to the entire  project.

The  state  claims that [t]he employee housing building [Building

4]  .  .  .  had already been started [and] was being constructed

according  to  the  1979  UBC.   Accordingly,  it  would  not  be

surprising  that the August 20 letter referred to the  1979  UBC.

In  any event, the states letter was addressed to Lindahl and did

not create any contractual obligation with Princess.

          For  the reasons discussed above, any dispute regarding

the  alleged  agreement to use the 1979 UBC is  not  material  to

Lexingtons  negligence  claim.  We  consequently  hold  that  the

superior  court did not err by granting summary judgment  to  the

state.

          2.    The  vested rights approach to determining  which

building             code  applied to Building 1 does  not  apply

here.

          Lexington  asks us to adopt the vested rights  approach

for  determining  whether the 1979 UBC or the 1985  UBC  was  the

appropriate  building code for the states review  of  the  Denali

Princess Lodge project.  It asserts that under the vested  rights

approach,  a  property owner has a right to  application  of  the

building  code that is in effect when the owner applies for  plan

review.16   Lexington argues that we should adopt  this  rule  in

Alaska  because it produces a bright line test that  is  easy  to

administer.   Although it would be a matter of  first  impression

for  this  court, we do not need to decide here whether to  adopt

this  approach  for Alaska.  The vested rights  approach  is  the

minority rule in other jurisdictions.  It requires not merely  an

          application by the owner, but a substantial change in position in

reliance on the old law.17  Lexington does not argue that Princess

changed  its  behavior  in reliance on any expectation  that  the

state  would apply the 1979 UBC.  Princess remained free to build

the  lodge  to standards exceeding the requirements of  the  1985

UBC,  and the state did not prevent Princess from building a fire

wall  around  the furnace.  Because Lexington would  not  prevail

even if we applied the vested rights approach, there is no reason

for us to decide whether to adopt it for Alaska.

     C.   The Superior Court Did Not Err in Holding that the Fire

Marshal         Correctly Classified the Lobby as  an  Assembly-3

Area.

          Lexington  argues that even if the 1985 UBC applied,  a

one-hour fire wall was still required.  The 1979 UBC and the 1985

UBC  both  state  that [e]very room containing a boiler,  central

heating   plant  or  hot-water  supply  boiler  in   Division   1

Occupancies [which include areas characterized as R-1]  shall  be

separated from the rest of the building by not less than  a  one-

hour  fire-resistive occupancy separation.18  Lexington therefore

reasons that because Deputy Fire Marshal Misewicz classified  the

lobby  area  of  Building  1 as R-1 in his  September  1986  plan

review,  the one-hour fire wall was necessary since both versions

of the UBC required it.

          The  state  argues  that Deputy Fire Marshal  Misewiczs

October  23,  1986  letter  to Lindahl stating  that  [t]he  1985

Uniform Building Code classifies this area as an Assembly 3  (A3)

occupancy was sufficient to classify the area as A-3 and not R-1.

It  argues that Misewiczs classification of the area as  A-3  was

bolstered  by  the opinions of other professional  engineers  and

architects.  Also, the state notes that fire inspections  of  the

premises in subsequent years classified the area as A-3  or  B-2,

confirming that Misewiczs classification of the area as  A-3  was

not in error.

          To  prevail on its negligence claim against the  state,

          Lexington must demonstrate that the state breached some duty owed

to Lexington  that it misinterpreted or misapplied the law.19  The

superior  court  correctly noted that it is  a  question  of  law

whether  the occupancy classification assigned to the  lobby  was

correct.   Section  501  of the UBC gave  the  fire  marshal  the

authority to classify Building 1.20  Misewicz classified the lobby

as  A-3  in  his  October  23, 1986 letter.   Although  Lexington

continues  to maintain that there is a genuine issue of  material

fact  about  the  lobbys  proper  classification,  Lexington  has

offered no evidence that the lobby should have been classified as

R-1 or that it was incorrectly classified in the October 23, 1986

letter or during state inspections in subsequent years.

          Lexington argues that the state, by first assigning the

R-1  classification to Building 1 during the initial review,  was

not permitted to adjust its classification in light of additional

information about the building.  Lexingtons interpretation defies

the clear words of both editions of the UBC, which state that any

question  [regarding  occupancy]  shall  be  classified  by   the

building  official.21   Lexington does not argue  that  Misewiczs

classification  of  the  lobby as A-3 was itself  incorrect,  and

neither  code prohibits such a classification.22  Lexington  only

argues  that Misewiczs first review classified the lobby  as  R-1

and  that  his  later  classification of the  lobby  as  A-3  was

impermissible.  Further, if Lexingtons argument were the law,  it

would impose an undue burden on the review of building plans  and

inspection of buildings by state officials.  Because section  501

of  the  1985 UBC clearly gave the fire marshal the authority  to

classify  the  lobby  in  Building 1, we  hold  that  the  states

original  classification of the lobby as R-1 does  not  create  a

genuine  issue of material fact, especially in light of Misewiczs

October 23, 1986 classification of the area as A-3.

     D.   The  Superior  Court Did Not Abuse  Its  Discretion  in

          Awarding Attorneys Fees to the State.

          Applying the twenty percent standard for cases resolved

          without trial,23 the superior court awarded the state Civil Rule

82   fees  of  $54,471.12.   The  award  was  twenty  percent  of

$272,355.58,  the value the state attributed to the  services  of

Department of Law attorneys and paralegals.

          Lexington  argues  that this award was  excessive.   It

reasons  that the hours the state claims it spent  1,446.4  hours

by  its  attorneys  and 767.6 hours by its  paralegals    greatly

exceeded the 694 hours Lexingtons attorneys spent during the same

period.   Lexington does not separately attempt to show  that  it

was  error  to award paralegal fees.  The state argues  that  the

time  its  attorneys spent was not excessive,  and  that  a  fair

comparison  would require Lexingtons attorneys  to  document  the

total  time  they  spent on the litigation, including  time  they

spent before they filed the complaint.

          Lexington does not challenge any specific part  of  the

1,446.4 hours of attorney time reported by the state, but  argues

only  that  the total was excessive.  An award of attorneys  fees

under Civil Rule 82 will be reversed only upon a showing of abuse

of  discretion  or  a  showing that the  award  [was]  manifestly

unreasonable.24  Because Lexington has not demonstrated that  the

amount  awarded  was excessive, that the twenty percent  standard

was  the  incorrect standard, or that the states attorneys  hours

were excessive, we hold that the superior court did not abuse its

discretion in awarding attorneys fees to the state.

          Finally, Lindahl seeks an award of attorneys fees  from

Lexington.   Because  he  is a pro se litigant,  Lindahl  is  not

entitled to attorneys fees.25

IV.  CONCLUSION

          We AFFIRM the superior courts grant of summary judgment

in all respects and AFFIRM its award of attorneys fees.

_______________________________
     1    13 Alaska Administrative Code (AAC) 50.020 (1986).

     2     Reeves  v. Alyeska Pipeline Serv. Co., 926 P.2d  1130,
1134 (Alaska 1996).

     3     Id.  (citing  Zeman v. Lufthansa German Airlines,  699
P.2d 1274, 1280 (Alaska 1985)).

     4    Id. (citations omitted).

     5    McGlothlin v. Municipality of Anchorage, 991 P.2d 1273,
1277 (Alaska 1999) (citations omitted).

     6     Bockness v. Brown Jug, Inc., 980 P.2d 462, 465 (Alaska
1999).

     7    Caudle v. Mendel, 994 P.2d 372, 374 (Alaska 1999).

     8    McGlothlin, 991 P.2d at 1277.

     9     The premise of Lexingtons claim is that the state owes
owners  a  duty,  enforceable in tort, to advise  them  of  their
noncompliance with applicable building code provisions.  In  view
of  our  decision in this case we have no occasion to endorse  or
reject this premise.

     10     See  infra  Part  III.B.2 for  a  discussion  of  the
classification of Building 1.

     11    656 P.2d 584, 588 (Alaska App. 1982).

     12    Id. at 587-89.

     13    Brady v. State, 965 P.2d 1, 8 (Alaska 1998) (citations
omitted).

     14    Id.

     15    Id. at 9 (quoting RESTATEMENT (SECOND) OF CONTRACTS  69
(1979)).   See  also  1  JOSEPH M. PERILLO, CORBIN  ON  CONTRACTS
3.18,  at  402-07,   3.21, at 414 (1993) (silence  as  acceptance
usually  limited to cases where conduct of party denying contract
or  agreement would lead other to reasonably believe that silence
would  be sufficient, such as where party is so certain that  the
[other]  will accept that the [others] silence will be  taken  as
acceptance).

     16     Lexington  cites  State ex  rel.  Ogden  v.  City  of
Bellevue,  275 P.2d 899, 901-02 (Wash. 1954), in support.   Ogden
involved a zoning ordinance and not a building code.  We  do  not
consider  how  the  vested rights approach  might  apply  in  the
context of  building codes because Lexingtons argument fails even
if  there is no difference in the legal applicability of the rule
in the two separate contexts.

     17    Relay Improvement Assn v. Sycamore Realty Co., 661 A.2d
182, 188-89 (Md. App. 1995).

     18    UBC  1201, 1212 (1979, 1985).

     19    Wickwire v. Arctic Circle Air Servs., 722 P.2d 930, 932
(Alaska  1986)  (To  make out a prima facie case  of  negligence,
Wickwire  needed  to present evidence on each  of  the  following
elements:  duty,  breach  of  that  duty,  proximate  cause   and
damages.);  contra Mesiar v. Heckman, 964 P.2d 445,  452  (Alaska
1998)  (Heckman cites no cases, and we are aware of none, holding
that  mere negligence by an agency charged with a general  public
duty  of resource management supports a claim for damages  by  an
affected resource user.).

     20     Section  501 of both the 1979 UBC and  the  1985  UBC
states  that  [a]ny  occupancy . . . about  which  there  is  any
question shall be classified by the building official.  UBC   501
(1979, 1985).

     21    UBC  501 (1979, 1985).

     22    Id.

     23     Alaska R. Civ. P. 82(b)(2) (providing that the  court
shall award the prevailing party in a case resolved without trial
20  percent  of its actual attorneys fees which were  necessarily
incurred).

     24     Feichtinger  v. Conant, 893 P.2d 1266,  1268  (Alaska
1995) (citations omitted).

     25     Alaska  Fed. Sav. & Loan Assn of Juneau v. Bernhardt,
794 P.2d 579, 581-82 (Alaska 1990).