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Kava v. American Honda Motor Co., Inc. (6/14/2002) sp-5582
Kava v. American Honda Motor Co., Inc. (6/14/2002) sp-5582
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
PATSY KAVA, as personal )
representative of the Estate ) Supreme Court No. S-9201
of ABNER T. GOLOGERGEN, )
) Superior Court No.
Appellant, ) 2NO-93-230 CI
)
v. )
)
AMERICAN HONDA MOTOR CO., )
INC., HONDA MOTOR CO., LTD., ) O P I N I O N
and SITNASUAK NATIVE CORP., )
d/b/a BONANZA, ) [No. 5582 - June 14, 2002]
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Nome,
Ben J. Esch, Judge.
Appearances: Richard H. Friedman, and
Jeffrey A. Friedman, Friedman, Rubin & White,
and Don C. Bauermeister, Burke &
Bauermeister, PLLC, Anchorage, for Appellant.
Sanford M. Gibbs, Brown, Waller & Gibbs,
P.C., and John B. Thorsness, Hughes,
Thorsness, Powell, Huddleston & Bauman, LLC,
Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews, and
Bryner, Justices. [Eastaugh and Carpeneti,
Justices, not participating.]
BRYNER, Justice.
I. INTRODUCTION
Patsy Kava, as the personal representative of the
estate of Abner Gologergen, appeals from a jury verdict in a
wrongful death defective products action resulting from a three-
wheel ATV accident. The estate claims that the superior court
erred in allowing Honda to introduce comparative risk evidence,
in not allowing the estate to inform the jury of an indemnity
agreement between two co-defendants, and in not granting a motion
for a new trial. Because the superior court correctly ruled that
the comparative risk evidence was admissible and did not abuse
its discretion in excluding the indemnity agreement, we affirm in
part. But because the court incorrectly determined the effect of
its sua sponte declaration of a mistrial on the negligence cause
of action and applied the wrong standard in denying the estate's
motion for a new trial, we reverse in part.
II. FACTS AND PROCEEDINGS
Abner Gologergen was driving a Honda three-wheel ATV to
the site of a beached whale near Savoonga when he lost control,
drove over a rocky embankment, and suffered fatal head injuries.
Gologergen's estate filed a wrongful death action against
American Honda Motor Company (Honda) and Sitnasuak Native
Corporation, alleging a defective product design and negligence.1
The estate claimed five dependents: Patsy Kava, an
estranged biological daughter, Aaron and Eleanor Gologergen, an
adult nephew and his wife, and Stephanie and Brianne Gologergen,
Aaron and Eleanor's minor daughters.
All parties stipulated that Sitnasuak had no
independent liability for any negligence because it was simply a
conduit for Honda's product. Honda agreed to indemnify Sitnasuak
against any judgment, and Sitnasuak consented to representation
by Honda.
Prior to trial, the estate moved to exclude any
"evidence comparing, or designed to compare, the risks of
engaging in the activity of riding ATVs or 3-wheel ATVs, and the
risk of engaging in other activities such as riding snowmachines,
trail bikes or bicycles." The superior court granted the motion
but made one exception:
if evidence of certain Consumer Product
Safety Council reports and findings [is]
presented by the plaintiff in his case
in chief. In that event, the risk
analysis prepared by Dr. Verhalen may be
admitted as rebuttal, to impeach the
methodology and statistical analysis
performed.
Also prior to trial, the estate offered a proposed
instruction informing the jury of the indemnity agreement between
Honda and Sitnasuak. Honda objected to the instruction at the
start of the trial, and the superior court excluded it.
In opening argument, the estate's attorney recited
statistics compiled by the Consumer Product Safety Commission
regarding emergency room admissions and deaths attributed to ATVs
- the statistical studies that the superior court referred to in
its pretrial order excluding comparative risk evidence. Honda
objected to the estate's use of those statistics as being
prejudicial and out of context. The superior court overruled the
objection.
In its case in chief, again over Honda's objection, the
estate presented evidence of the CPSC studies. Then, over the
estate's objection, the trial court allowed Honda to introduce
certain comparative risk evidence that otherwise would have been
excluded under its pretrial order. Later, again over the
estate's objections, the court allowed Honda to introduce several
exhibits that illustrated the comparative risks between ATVs and
other classes of vehicles, including snowmobiles, minibikes, and
trailbikes.
At the conclusion of the trial, the jury began
deliberating but deadlocked on the negligence cause of action.
The jury's foreperson sent a note to the court stating, "We have
debated and voted on question #4 since yesterday afternoon. We
have not been able to move beyond an 8-3 vote on this question.
Please advise." Question four stated "Was Honda negligent?
(Answer yes or no)." In attempting to formulate a response to
the jury note, the trial court suggested that it should declare a
mistrial as to the negligence cause of action and direct the jury
to answer the remainder of the special verdict as to the products
liability cause of action. The estate did not believe that a
mistrial was necessary on this negligence claim but agreed with
the trial court's suggestion to instruct the jury to answer the
remaining special verdict questions. Honda objected and moved
for a mistrial on all points.
The court denied Honda's motion for a mistrial on the
entire case but declared a mistrial on the negligence claim,
instructing the jury to skip questions four and five (which dealt
with negligence) and to continue answering the verdict form with
question six. The jury reached a verdict as to the remaining
issues, which dealt with the estate's product liabilities theory.
It found that the three-wheel ATV was a defective product and
that it was a legal cause of Gologergen's death. The jury also
found that Aaron, Eleanor, Stephanie, and Brianne Gologergen were
legal dependents of Abner Gologergen. But it awarded zero
damages to Aaron and Eleanor, and $25,000 each to Stephanie and
Brianne only for the loss of consortium. Further, despite
finding that Patsy Kava was Abner Gologergen's biological
daughter, the jury awarded her zero damages. It also found that
Abner Gologergen was negligent and that his negligence was fifty
percent of the cause of his death. Finally, the jury found that
Honda had not engaged in outrageous conduct; this finding
precluded an award of punitive damages.
After the jury's verdict was read into the record, the
estate's counsel asked that the jury be polled, but did not
challenge the verdict when the poll was completed. The court
then dismissed the jury. The estate later moved for a new trial
on all issues. The superior court denied the estate's motion.
The estate appeals.
III. ANALYSIS
A. Standard of Review
We review a trial court's decision to admit evidence
for an abuse of discretion.2 The question of whether to grant or
refuse a new trial "rests in the sound discretion of the trial
court."3 In reviewing an order denying a new trial, we view the
evidence in the light most favorable to the non-moving party.4
Whether the trial court applied the correct legal standard is a
question of law that we review de novo.5
B. The Comparative Risk Evidence Was Admissible.
The estate asserts that the trial court erroneously
allowed Honda to introduce evidence comparing the risks of riding
three-wheel ATVs to the risks of operating other vehicles like
snowmachines and motorcycles - so-called comparative risk
evidence.6 The estate points out that the trial court had issued
a protective order excluding the comparative risk evidence unless
it was used to impeach certain Consumer Product Safety Commission
reports. The estate argues that the evidence is irrelevant and
that its admission amounted to reversible error. We disagree.
The comparative risk evidence the estate complains of was
relevant and admissible for two reasons.
First, the estate made the evidence relevant when it
introduced evidence of ATV-related emergency room admissions.
The estate first mentioned the emergency room statistics in its
opening statement. The estate's trial counsel stated in opening
that "[b]y 1984, over 100,000 people had been taken to emergency
rooms as a result of injuries in 3-wheel accidents. Over 250
people had been killed. . . . [Honda] knew it had an unstable
machine on its hands. It knew it from the [Consumer Product
Safety Commission] statistics." Over Honda's objection, the
estate later introduced the CPSC statistics as evidence that
Honda had notice of injuries resulting from the use of its three-
wheel ATVs. The estate also recounted the statistics in its
closing argument.
Honda asserts that it introduced the comparative risk
evidence to explain the CPSC statistics and to "prove that the
statistics relied upon by [the estate's expert witness] were
inaccurate and irrelevant." We agree that Honda's comparative
risk evidence was relevant to refute the estate's statistical
evidence and to impeach its expert's testimony regarding those
statistics. As we recently stated, "a party may open the door to
evidence on a subject by putting that subject at issue in the
case."7 Here, the estate opened the door to a discussion of the
statistical methodology behind the CPSC reports.8 The
emergency room statistics that the estate chose to present were
relevant to establish notice only insofar as they suggested a
disproportionally high rate of injury and, inferentially, a
defective product. By offering the injury statistics as relevant
evidence of notice, the estate necessarily asserted that they
tended to show that ATVs were defective - that Honda "knew it had
an unstable machine on its hands." How else, then, could Honda
have contextualized the rates of emergency room admissions
without comparing the ATV injury rates with similar products?
The statistics of ATV-related emergency room admissions, standing
alone, could not explain the reasons for the reported injuries or
establish the need for a corrective response by Honda. Honda was
therefore entitled to offer the comparative risk evidence in
response to the estate's use of the CPSC statistics.
Second, the comparative risk evidence was also
admissible because it played an important role in connection with
the issue of punitive damages. The estate's theory of punitive
damages was that Honda continued to market three-wheel ATVs
knowing that the three-wheelers had a high rate of injury. It
based its theory in large part on the fact that Honda had notice
of the CPSC emergency room statistics as early as 1984 but
continued to market three-wheel ATVs. The estate asserted that
the continued marketing in the face of the injury statistics
showed that Honda's conduct was sufficiently reprehensible to
support punitive damages. Honda's comparative risk evidence
directly responded to the estate's theory of punitive damages.
We conclude that the superior court did not abuse its
discretion in admitting the comparative risk evidence.
C. The Effect of the Mistrial.
The estate argues that it should have been granted a
new trial on its negligence cause of action because the trial
court sua sponte declared a mistrial on that claim and allowed
the jury to reach a verdict only on the estate's products
liability claim. In response, Honda notes that the special
verdict form allowed the jury to award the same categories of
damages for both causes of action. According to Honda, the
products liability and negligence theories were alternative
causes of action, and the jury's verdict on the products
liability claim therefore resolved all damages issues, leaving no
reason for trial on the alternative theory of negligence. Honda
additionally argues that, in any event, the estate waived its
right to ask for a retrial on negligence.
As a threshold matter, we agree with the estate that
the trial court acted sua sponte in declaring a hung jury and
mistrial on the negligence claim. Upon receiving the
foreperson's note that the jury had debated for eight hours and
failed to reach a verdict on the negligence issue, the trial
judge stated: "I think the indication, they spent eight hours at
it and there has been no change . . . [j]ustifies a finding that,
as to the issue of the negligence claim, there is a mistrial."
In response to concerns by Honda's trial counsel, the court later
expressly confirmed that it had issued the mistrial order by
"motion of the court." Because the judge declared the mistrial
without a motion from either party, we believe that the finding
of a mistrial can only be characterized as sua sponte.
We reject Honda's assertion that the estate waived its
right to a retrial on the negligence cause of action by
supporting the trial court's decision to declare a mistrial on
that action. The estate did acknowledge that the jury appeared
to be deadlocked on the negligence claim at that point; but it
declined to move for a mistrial or to adopt the position that it
would relinquish its right to seek a retrial on the mistried
negligence claim. While it may be true that the trial court
could have required the estate to elect between a mistrial on all
issues and a waiver of its negligence cause of action, the court
did not require such an election. Instead, it simply opted to
declare a mistrial sua sponte. Given these circumstances, we
hold that the estate's actions cannot properly be construed as a
waiver of the right to a retrial.
This conclusion leads us to a slightly more vexing
question: whether the trial court's sua sponte mistrial order
entitles the estate to retry its negligence claim. As Honda
correctly observes, the special verdict form for the products
liability and negligence causes of action listed identical
categories of damages for both claims, and the jury's verdict on
the products liability cause of action assessed the damages that
the jury found appropriate in each category. The question, then,
is whether, under the evidence presented, the estate
realistically might have recovered any additional award for the
same categories of damages had the jury not deadlocked on the
negligence cause of action.
The estate's dual claims for negligence and products
liability were independent causes of action in the sense that
they were sufficiently distinct and separable to stand alone.
Yet most of their shared categories of damages were obviously
coextensive. For example, the damages for "past loss of support
and services" and "future loss of support, services and
inheritance" would be identical regardless of the theory under
which they were awarded. Because these damages have already been
decided by the jury in the products liability verdict, it would
be an injustice to subject Honda to the expenses and risks of
redetermining those damages in a retrial.9
Similarly, the issue of punitive damages was
essentially identical for both causes of action; on each claim,
the jury was required to determine whether Honda's conduct was
outrageous and would therefore support punitive damages. The
special verdict form contained a single question relating to both
claims on punitive damages: "Have plaintiffs proven by clear and
convincing evidence that Honda engaged in outrageous conduct?
(Answer yes or no)."10 The jury answered this question in the
negative. Neither the jury instructions nor the evidence at
trial differentiated between the kinds of conduct that would be
outrageous under the estate's theories of negligence and products
liability. Given these circumstances, the jury's finding that
Honda had not engaged in outrageous conduct must be deemed to
preclude an award of punitive damages under both causes of
action.
As to all issues of compensatory and punitive damages,
then, because retrying the negligence theory would merely allow
the estate to relitigate issues that the first jury has already
considered and fully decided, we conclude that no retrial is
warranted. But one point remains to be considered: comparative
fault. As to this point, we find it possible that a retrial on
the estate's negligence theory could lead to a different result
based on a new jury's consideration of factual issues that the
original jury's verdict on products liability does not fully
resolve.
Because a finding of comparative relative fault
requires the jury to allocate relative degrees of fault among
joint wrongdoers, there is good reason to believe that if the
original jurors had found Honda liable on the basis of actual
negligence rather than strict products liability, they would have
assessed greater comparative fault to Honda than they did when
they allocated fifty percent fault to Gologergen in response to
special verdict question 15. We thus conclude that a new trial
will be necessary on the issue of comparative fault unless Honda
agrees upon remand to accept full liability for the damages
awarded by the original jury.
D. The Motion for a New Trial.
The estate next argues that the trial court applied the
wrong standard when it denied the estate's motion for a new
trial. The estate claims that instead of viewing the evidence in
the light most favorable to Honda, the trial judge should have
determined the weight and credibility of the evidence for himself
and decided whether the jury's verdict was "against the weight of
the evidence."11 The estate is correct.
The standard for deciding a motion for a directed
verdict or for a judgment notwithstanding the verdict requires a
trial court to view the evidence in the light most favorable to
the non-moving party.12 By contrast, a trial court may set aside
a verdict and order a new trial in the interest of justice if the
verdict is against the weight of the evidence.13 In deciding a
motion for a new trial on this basis, the court must use its
discretion and independently weigh the evidence.14 A court may
set aside a verdict as being against the weight of the evidence
even when "there is substantial evidence to support it."15 The
decision is a matter for the trial court's discretion.
In the present case, the estate moved for a new trial,
not for a directed verdict or a judgment notwithstanding the
verdict. The trial court's order denying the estate's motion for
a new trial shows that it applied the directed verdict standard.
The trial court cited Mallonee v. Finch16 in support of the
proposition that, "[i]n deciding the motion [for a new trial],
this court must view the evidence in the light most favorable to
the party against whom the motion is made and draw all reasonable
inferences in favor of the verdict." But, the trial court's
citation to Mallonee refers to the portion of that opinion
dealing with the appellate standard of review, not the standard
to be applied by the trial court ruling on a motion for a new
trial in the interest of justice.
As we explained in Mallonee, "[u]nlike a motion for
directed verdict or judgment n.o.v., [the motion for new trial]
involves the trial judge's discretion."17 By moving for a new
trial, and not just for a judgment notwithstanding the verdict,
the estate sought a discretionary ruling from the court based on
its personal view of the evidence. Although the estate bolstered
its argument with the claim that the jury's verdict was flawed as
a matter of law, this argument did not deprive it of the right to
a decision based on the trial court's independent discretion.
The trial court applied the wrong standard, then, in basing its
decision on a view of the evidence in the light most favorable to
Honda. The estate is entitled to a ruling on its motion for a
new trial using the correct standard. On remand, the trial court
should exercise its discretion and independently weigh the
evidence in determining if the jury's verdict was against the
weight of the evidence.
In reaching this conclusion, we reject Honda's
assertion that the estate waived any right to a new trial by
failing to challenge the jury verdict as legally inconsistent
before the jury was discharged. We have held that "challenges to
the consistency of a verdict are deemed waived unless made prior
to the discharge of the jury."18 But that rule has limited
application here. The estate's failure to raise the issue of
inconsistency before the court discharged the jury precluded it
from later asserting that the inconsistency entitled it to a new
trial as a matter of law. But that failure did not strip the
estate of its right to move for a new trial on the discretionary
ground that the verdict was against the weight of the evidence.
Nor did the lack of objection bar the estate from arguing the
apparent inconsistency of the verdicts as a factor that the trial
court could consider in exercising its broad discretion to
determine whether the totality of the circumstances warranted a
new trial in the interest of justice.19
Accordingly, we remand for reconsideration of the
estate's motion for a new trial. On remand, the trial court
should use its discretion and independently weigh the evidence to
determine whether the verdict is against the weight of the
evidence and whether to order a full or partial retrial in the
interest of justice.
E. It Was Not an Abuse of Discretion to Exclude the
Indemnity Agreement.
The estate claims that the trial court abused its
discretion when it refused to instruct the jury on the indemnity
agreement between Honda and Sitnasuak. That agreement made
Sitnasuak a defendant in name only: Sitnasuak gave up its right
to control the defense of the case and its cross-claims against
Honda in exchange for Honda's agreement to indemnify Sitnasuak
for any "conduit" liability.20 Prior to trial, the estate
submitted a proposed jury instruction that would have informed
the jury of the indemnity agreement.21 The trial court declined
to include the instruction. The estate again proposed the
instruction at the beginning of trial, and it was again rejected.
Honda argues that the proposed instruction on the
indemnity agreement was properly excluded because it would have
been analogous to disclosing that a defendant is insured; as
Honda points out, evidence of the availability of insurance is
inadmissible.
We disagree with Honda's analogy to insurance. An
insurance policy protects the insured from liability by
contractually shifting the financial, but not the legal,
responsibility to the insurer. The insurer therefore accepts the
risk of liability without regard to its own conduct. By
comparison, Honda's own conduct made it responsible for breaching
a tort duty that it owed directly to Gologergen; its indemnity
agreement simply required it to reimburse Sitnasuak - an
otherwise innocent party - for any "conduit" liability that
Sitnasuak might have incurred as a result of being involved in
Honda's chain of distribution. Thus, unlike an insurer, Honda
was the principal wrongdoer and agreed to indemnify Sitnasuak for
incidental liability that might arise from Sitnasuak's
relationship with Honda. In effect, then, the agreement simply
recognized that Sitnasuak had no real interest in the litigation.22
But regardless of the indemnity agreement's nature and
purpose, the circumstances of this case compel us to conclude
that the trial court did not abuse its discretion in excluding
the estate's proposed jury instruction. As Honda correctly
points out, the estate itself chose to join Sitnasuak as a
defendant, even though the estate knew that under products
liability law Honda would ultimately be responsible for any
judgment.
The estate nevertheless cites Frontier Companies of
Alaska, Inc. v. Jack White Co.,23 for the proposition that
indemnity agreements can be used under Alaska Evidence Rule 408
to "show the true alignment of the parties."24 There, we held
that it was not an abuse of discretion for the trial court to
allow evidence of a settlement agreement between co-defendants
where, "[b]ecause of the agreement, [one co-defendant's]
representatives might be motivated to slant their testimony in
[the other's] favor and vice-versa."25
But Frontier is easily distinguishable from this case.
In Frontier, employees of both co-defendants appeared as
witnesses and the settlement agreement between them obligated
both parties to pay half of any judgment against either.26 That
situation created a potential for bias on the part of the co-
defendants because of their inter-related interests in the
litigation. Our ruling simply recognized that an undisclosed
settlement agreement aligning the interests of co-defendants
would have deceptively maintained the appearance of adversity in
the litigation.
Here, by contrast, the indemnity agreement did not
align Sitnasuak's interests with Honda's; it simply left
Sitnasuak with no real interest in the litigation. And in the
absence of evidence of the agreement, there was no deceptive
appearance of adversity. Moreover, no employee or representative
of Sitnasuak appeared as a witness, thus eliminating any residual
possibility of actual or apparent bias. Given these
circumstances, the trial court did not abuse its discretion in
declining to give the jury instruction.
IV. CONCLUSION
The decision of the trial court is AFFIRMED in part and
REVERSED in part; we REMAND for proceedings consistent with this
opinion.
_______________________________
1 Sitnasuak is the village corporation of Nome that sold
the Honda ATV to Gologergen through its business, "Bonanza."
2 Hutchins v. Schwartz, 724 P.2d 1194, 1197 (Alaska
1986).
3 Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442
(Alaska 1989).
4 Pugliese v. Perdue, 988 P.2d 577, 581 (Alaska 1999).
5 Power Constructors, Inc. v. Taylor & Hintze, 960 P.2d
20, 39 (Alaska 1998).
6 The disputed evidence was admitted during Honda's cross-
examination of one of the estate's expert witnesses, former CPSC
commissioner Stuart Statler, through testimony by three Honda
witnesses and through nine comparative-risk exhibits introduced
when these witnesses testified.
7 Loncar v. Gray, 28 P.3d 928, 932 (Alaska 2001).
8 See Bittner by Bittner v. American Honda Motor Co., 533
N.W.2d 476, 487 (Wis. 1995) (holding that the trial court
properly admitted defendant's comparative risk evidence for the
purpose of impeaching the CPSC's statistical analysis because the
evidence demonstrated that the CPSC's statistical basis, relied
on by the plaintiff, could be defective).
9 See Sturm, Ruger & Co. v. Day, 615 P.2d 621, 624
(Alaska 1980). As mentioned in the statement of facts, despite
its finding that Aaron, Eleanor, Stephanie, and Brianne
Gologergen all were legal dependents of Abner Gologergen, the
jury awarded loss of consortium damages only to Stephanie and
Brianne, awarding nothing to Aaron and Eleanor. These verdicts
are arguably inconsistent, and their potential inconsistency
could conceivably cast doubt on the reliability of the award of
zero damages to Aaron and Eleanor. But in our view the estate's
failure to challenge the verdict as inconsistent before the trial
court discharged the jury precludes the estate from relying on
this inconsistency as a legal basis requiring a retrial on either
its negligence or product liability claims.
10 The punitive damages jury instruction stated:
The plaintiff has requested that you
punish the defendant to deter them and others
from repeating similar acts. You may award
the plaintiff such an amount of money only if
you decide that the defendant's conduct which
forms the basis of your verdict was
outrageous. The defendant's conduct was
outrageous if it was the result of
maliciousness or hostile feelings toward the
plaintiff, or was undertaken with reckless
indifference to the interests, rights or
safety of others.
11 We reject the estate's assertion that this court should
declare as a matter of law that the jury's verdict was a
compromise.
12 See Alaska R. Civ. P. 50(a) and (b); Alaska Marine
Pilots v. Hendsch, 950 P.2d 98, 108 (Alaska 1997).
13 See Alaska R. Civ. P. 59(a); see also Sloan v. Atlantic
Richfield Co., 541 P.2d 717, 723 (Alaska 1975).
14 See Sloan, 541 P.2d at 723 n.11.
15 11 Charles Alan Wright et al., Federal Practice &
Procedure 2806 at 65 (2d ed. 1995).
16 413 P.2d 159, 160 (Alaska 1966).
17 Id. at 162.
18 Grow v. Ruggles, 860 P.2d 1225, 1226 (Alaska 1993);
accord Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994).
19 See Alaska R. Civ. P. 59(a). Rule 59(a) provides that:
"A new trial may be granted to all or any of the parties and on
all or part of the issues in an action in which there has been a
trial by jury . . . if required in the interest of justice."
See, e.g., Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442
(Alaska 1989).
20 The indemnity agreement stated in relevant part:
2. . . . American Honda . . . and
defendant Sitnasuak hereby stipulate and
agree that they hereby waive and will not
seek apportionment of fault to co-defendant
Sitnasuak, pursuant to A.S. 09.17.080, for
any acts of independent: [sic] negligence,
gross negligence and/or recklessness . . . .
. . . .
5. The Honda defendants have agreed to
and will continue to defend Sitnasuak against
those claims asserted by plaintiff which may
subject Sitnasuak to "conduit" product
liability.
6. The Honda defendants will indemnify
Sitnasuak against any judgment which may be
entered against Sitnasuak based on "conduit"
product liability.
21 The estate's proposed jury instruction provided:
Counsel for Plaintiff and Defendants
have entered into a stipulation which
establishes that Defendant Sitnasuak has no
liability for any acts of independent
negligence by Sitnasuak. The Honda
Defendants have agreed to and will indemnify
Sitnasuak as the seller of the 3-wheeler in
question against any judgment entered in this
action.
This means that the Honda defendants
have agreed to be financially responsible for
any judgment rendered against Sitnasuak in
this action.
22 Sitnasuak's financial obligation did not change after
the settlement and indemnity agreement with Honda: as a mere
conduit, Sitnasuak was always entitled to full contribution from
Honda on any damage award against it. See Colt Indus. Operating
Corp., Quincy Compressor Div. v. Frank W. Murphy Mfr., Inc., 822
P.2d 925, 936 (Alaska 1991).
23 818 P.2d 645 (Alaska 1991).
24 Alaska Rule of Evidence 408 states in relevant part:
Evidence of (1) furnishing or offering
or promising to furnish or (2) accepting or
offering or promising to accept, a valuable
consideration in compromising or attempting
to compromise a claim which was disputed as
to either validity or amount, is not
admissible to prove liability for or
invalidity of the claim or its amount. . . .
This rule also does not require exclusion
when the evidence is offered for another
purpose, such as proving bias or prejudice of
a witness, negativing a contention of undue
delay, or proving an effort to obstruct a
criminal investigation or prosecution . . . .
25 Frontier Cos. of Alaska, 818 P.2d at 652.
26 Id. at 648, 651-52.
