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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fleegel v. Estate of Michael E. Boyles (11/15/2002) sp-5641

Fleegel v. Estate of Michael E. Boyles (11/15/2002) sp-5641

     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,


MONICA E. FLEEGEL,            )
                              )    Supreme Court Nos. S-9091/9441
             Appellant/       )
             Cross-Appellee,  )    Superior Court No.
                              )    3AN-97-6910 CI
     v.                       )
                              )    O P I N I O N
                              )    [No. 5641 - November 15, 2002]
             Appellee/        )
             Cross-Appellant. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
                     Dan A. Hensley, Judge.

          Appearances:  Wm. Grant Callow,  Law  Offices
          of  Wm.  Grant  Callow, APC,  Anchorage,  for
          Appellant   and  Cross-Appellee.    Paul   W.
          Waggoner,  Law Offices of Paul  W.  Waggoner,
          Anchorage, for Appellee and Cross-Appellant.

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

          FABE, Chief Justice.
          BRYNER,   Justice,   with   whom   CARPENETI,
          Justice, joins, dissenting.


          Monica Fleegel sought compensatory and punitive damages

from  a drunk driver, Michael Boyles,1 who injured her in  a  car

accident.  The  jury  awarded Fleegel compensatory  damages,  but

although it found that punitive damages were warranted,  it  made

no  monetary  award  for  punitive damages.   On  appeal  Fleegel

appeals  a  number of the trial court's evidentiary rulings,  and

Boyles  cross-appeals the trial court's award of attorney's  fees

to Fleegel.  Because the trial court did not abuse its discretion

in its evidentiary rulings and because it appropriately concluded

that  although  Fleegel  was not the prevailing  party,  she  was

entitled to attorney's fees under the crime victims' statute,  we

affirm the trial court's judgment.


     A.   Facts

          Shortly  after 5:00 p.m. on September 1,  1995,  Monica

Fleegel sat in her car waiting for the light to turn green at the

intersection  of  36th  Avenue and Denali  Street  in  Anchorage.

Before  the  light changed, Fleegel's car was hit  by  a  pick-up

truck  driven by Michael Boyles.  Boyles failed to  stop  at  the

accident scene.

          After  the  collision Fleegel felt pain  in  her  nose,

head,   neck,  chest,  back,  and  hand.   All  of  the  injuries

ultimately  healed except for the injury to Fleegel's left  hand.

As  a result of the collision, the tendon of Fleegel's left wrist

pulled  off its attachment to the thumb, taking bone with it  and

causing  an  avulsion  fracture.   Fleegel's  orthopedic  surgeon

testified  that  such  injuries  can  result  in  long-term  pain

          associated with certain activities.  In the intervening years

since   the  collision,  Fleegel  has  undergone  a  variety   of

treatments for her injury.  She has received injections of  anti-

inflammatory  medication, had a cast on her arm for three  weeks,

and has worn splints for varying periods of time almost every day

since  the accident.  Long-term treatment of the injury  involves

wearing   a   splint  and  taking  anti-inflammatory  medication.

Fleegel  has  also  been advised that the injury  leaves  her  at

increased risk for premature arthritis in the joint.

          Fleegel  used  approximately forty-two  hours  of  sick

leave  during  her  initial recovery  from  the  collision.   The

parties  stipulated that she incurred $5,417 in medical expenses,

which State Farm Mutual Automobile Insurance Company, insurer  of

both Fleegel and Boyles, paid.

          Boyles  admitted  that he was under  the  influence  of

alcohol  and  Valium  at  the  time  of  the  collision.   Boyles

participated  in  alcohol treatment programs in  the  years  both

before  and  after the collision.  He also had a medical  history

that  included  an  anxiety disorder, panic attacks,  depression,

post-traumatic  stress  disorder,  and  various  gastrointestinal

disorders related to alcoholism.

          After  the  accident,  the  Municipality  of  Anchorage

charged  Boyles with leaving the scene of an injury accident  and

reckless driving.  Boyles pleaded no contest to the charges.   As

part  of  his sentence, Boyles was required to complete treatment

recommended  by  the  Anchorage  Alcohol  Safety  Action  Program

(ASAP).   Seven  months after the collision with Fleegel,  Boyles

was again charged with driving while intoxicated.  He claimed  to

have stopped driving after that incident.

     B.   Proceedings

          Fleegel  filed suit against Boyles seeking compensatory

and punitive damages.  Boyles admitted liability and acknowledged

that  "consumption  of  alcohol was one of  the  causes  of  this


          Fleegel  filed a motion in limine requesting  that  all

references to insurance "be deleted" from the evidence at  trial,

or,  in  the  alternative, that all potential jurors  insured  by

State  Farm  Insurance be excused for cause.  The superior  court

ruled  that because Boyles's insurance coverage had relevance  to

punitive damages it could be discussed, but that the name of  the

company providing the insurance could not be mentioned.

          Fleegel  also sought to introduce as evidence at  trial

an  outstanding warrant against Boyles for failure to comply with

ASAP   requirements.    The  trial  court  deemed   the   warrant


          Boyles   planned  to  present  at  trial  a  videotaped

deposition  of Dr. James Peach, a gastroenterologist who  treated

Boyles  in  the  two  years prior to trial.   Fleegel  sought  to

exclude  Dr.  Peach's  testimony  on  the  ground  that  it   was

irrelevant.   Fleegel  also  sought to  exclude  medical  records

relied upon and discussed by Dr. Peach during his testimony.  The

trial   court  overruled  Fleegel's  objections  to  Dr.  Peach's

testimony,  finding Dr. Peach's discussion of Boyles's alcoholism

relevant  to  social  standing and financial  condition  as  they

related to the punitive damages claim.  Moreover, the trial court

determined  that Dr. Peach's reference to the medical records  of

other  doctors was permissible because these records  formed  the

foundation  for Dr. Peach's opinion.  But the trial court  agreed

with  Fleegel  that  the  "actual packet  of  records  that  were

included  in  the  deposition" should not be  admitted.   Fleegel

later  sought to present two records of other physicians who  had

treated  Boyles, which were contained in Dr. Peach's  file.   The

trial court denied that request.

          The  case  was  tried before a jury on December  14-17,

1998.  Other  than a statement by Boyles's attorney  during  voir

dire  that he had been retained by Boyles's insurance carrier  to

represent  Boyles,  no mention or evidence of Boyles's  insurance

coverage  was  made  during trial.  On  the  stipulation  of  the

parties, the trial court did give a jury instruction stating that

Boyles "has insurance coverage."

          Prior to beginning deliberations, a juror asked:   "are

.  .  .  punitive  damages direct[ed] to Mr.  Boyles  or  to  the

insurance  company?"  The court responded: "I cannot give  you  a

direct  answer to that question.  No evidence [of insurance]  was

presented  regarding what items of damage may be covered  by  Mr.

Boyles's insurance.  Therefore, you may not speculate whether any

particular item of damage is covered by insurance."

          The  jury  returned a special verdict finding that  (1)

the  negligence of Boyles was a legal cause of injury to Fleegel;

(2)  Fleegel  suffered damages in these amounts: $1,140  in  past

economic loss, $7,500 in past non-economic loss, $1,000 in future

economic  loss, and $3,500 in future non-economic loss --  for  a

total  of  $13,140  in damages; (3) punitive  damages  should  be

awarded  against  Boyles; and (4) the amount of punitive  damages

awarded against Boyles should be zero.

          Because  Boyles made a Rule 68 offer of  judgment  that

substantially exceeded the jury award, the trial court determined

that  Boyles was the prevailing party, and awarded him $6,000  in

attorneys  fees,  $1,990.71 in costs, and $50 in  expert  witness

fees.   After  subtracting  Boyles's  award  of  $8,040.71   from

Fleegel's  compensatory damages award of  $14,703.40,  the  trial

court entered judgment for Fleegel for $6,662.29.

          Fleegel  moved  for Civil Rule 60(b)2 relief  from  the

judgment  on  the  basis  of  AS 09.60.070,  which  awards  "full

reasonable attorney fees" to victims of certain crimes, including

driving  while  intoxicated.3  The trial court granted  Fleegel's

motion  and ultimately determined that both parties were entitled

to  attorney's  fees  -- Boyles for making a pretrial  settlement

offer  more  generous than the jury award,4 and  Fleegel  as  the

victim  of  a serious crime.  Accordingly, the trial court  added

one-third  of Fleegel's net recovery of $6,662.29 ($2,220.90)  to

compensate  Fleegel  for her attorney's  fees5  under  the  crime

victims'  statute,  AS 09.60.070, yielding a  total  judgment  in

favor  of  Fleegel of $8,883.59 ($6,662.29 plus $2,220.90).   The

trial  court entered amended judgments on September 27, 1999  and

January 31, 2000.

          Fleegel   appeals  a  number  of  the   trial   court's

evidentiary  rulings.  Boyles cross-appeals the  attorney's  fees

          award to Fleegel under the crime victims' statute, AS 09.60.070.


          We  review a trial court's decision to admit or exclude

evidence   for  abuse  of  discretion.6   Decisions   about   the

admissibility  of evidence are committed to the sound  discretion

of the trial court.7  We will only reverse evidentiary rulings if

upon  review  of  the  record as a whole we  are  left  with  the

definite  and firm conviction that the trial court erred  in  its

ruling and the error affected the substantial rights of a party.8

          Boyles's  cross-appeal requires this court to interpret

AS  09.60.070.   As  we have stated, "[t]he independent  judgment

standard   of  review  is  exercised  by  this  court  when   the

interpretation  and application of a statute is at  issue,"9  and

"[t]he  interpretation  of a statutory  provision  .  .  .  is  a

question  of law [that we resolve] by adopting 'the rule  of  law

that  is  most  persuasive  in light of  precedent,  reason,  and



     A.   The Trial Court Did Not Err in Its Evidentiary Rulings.

          1.   The  trial court did not err in admitting evidence
               of  insurance  coverage without reference  to  the
               insurance carrier's name.

          Fleegel's  motion in limine requested  that  the  trial

court  either direct that no references to insurance be  made  in

exhibits  and evidence, or excuse for cause all potential  jurors

who  were  insured  by  Boyles's insurance carrier,  State  Farm.

Fleegel cited concern that evidence of insurance would improperly

influence  jurors,  who might fear that a high  punitive  damages

          award would raise their own insurance rates.

          The superior court declined both of Fleegel's requests.

However,  the court did rule that the parties could  not  mention

the  name  of  Boyles's insurance carrier, State  Farm.   Fleegel

appeals the denial of both of her requests.

               a.   The superior court did not err in denying the
                    motion   to  exclude  evidence  of  insurance

          The  trial court ruled that insurance had relevance  to

Boyles's  financial condition as it related to  punitive  damages

and  declined  to prohibit evidence of insurance  coverage.   The

trial court explained its reasoning:  "[E]ven if the insurance  .

. . only covers the compensatory damages, it goes to the issue of

the  defendant's financial condition."11  The trial court further

determined  that  evidence  of  insurance  coverage   would   not

improperly  influence the jurors:  "I disagree . . . that  jurors

will  speculate  as to whether it's their insurance  or  not  and

whether their rates will be affected by what they do."  The trial

court  also ruled that the parties could not mention the name  of

the insurance carrier, State Farm.  Fleegel argues on appeal that

these rulings constituted prejudicial error.

          The financial condition of a party is a relevant factor

in  considering a claim for punitive damages.  In Sturm, Ruger  &

Co.  v. Day, we recognized that the wealth of a defendant  is  an

important  factor that bears on the amount of punitive damages.12

We   also   applied   this  factor  in  our   analysis   of   the

appropriateness  of  the  punitive damages  award  in  Norcon  v.

Kotowski.13  Furthermore, the Alaska Legislature established in a

          subsequently enacted statute, not applicable to this case but

still  informative,  that  the trier of  fact  may  consider  the

financial condition of the defendant when determining the  amount

of punitive damages.14

          In Shane v. Rhines, all five justices of this court, in

majority,  concurring,  and  dissenting  opinions,  agreed   that

insurance  coverage in particular was relevant to a determination

of a punitive damages award.15  Two members of the majority stated

that   "evidence  of  insurance  arguably  is  relevant  to   the

appropriate measure of punitive damages," but concluded that  the

trial judge's decision to exclude insurance evidence was harmless

error because the jury ultimately found no liability for punitive

damages.16   Justice Compton, in a concurring opinion,  advocated

for  the use of bifurcated trials in cases involving a claim  for

punitive  damages.17  He noted that at the second  phase  of  the

trial,  "the needed evidence of the defendant's wealth, including

evidence  of any insurance coverage, could be presented."18   And

Justices  Burke  and Matthews noted in their  dissent  that  "[a]

defendant's insurance policy is a part of his financial resources

and  will  obviously affect the degree to which  a  defendant  is

punished by a punitive damage award."19

          A number of courts permit insurance evidence to rebut a

defendant's  attempt to portray himself as too  poor  to  pay  an

award   of  punitive  damages.20   These  cases  stem  from   the

plaintiff's attempt to introduce the defendant's ability  to  pay

because of his insurance.21  In this case, defendant Boyles wanted

evidence  admitted  of  his  insurance  coverage.   A  review  of

          decisions in other jurisdictions indicates that no court has held

that  introduction  of  insurance evidence  is  reversible  error

because it is prejudicial to a plaintiff, as Fleegel argues.

          Also,   Alaska  Evidence  Rule  411  does  not  require

reversal  of  the superior court's ruling.  Fleegel  argues  that

evidence  of  liability insurance, even if  it  is  relevant,  is

generally  inadmissible under Evidence Rule 411.   But  Rule  411

establishes  that  evidence  of  liability  insurance   "is   not

admissible upon the issue whether the person acted negligently or

otherwise  wrongfully."  (Emphasis added.)  Rule  411  "does  not

require  the exclusion of evidence of insurance against liability

when offered for another purpose."22  Liability was not contested

in this case; Boyles admitted liability.  The trial court focused

on the relevance of insurance to Boyles's financial condition,  a

purpose not excluded under Rule 411.  Therefore, the trial  court

did not err in failing to exclude evidence of insurance coverage.

               b.   The superior court did not err in refusing to
                    exclude  all  jurors who carried  State  Farm

          Fleegel  alternatively sought, if the  court  permitted

evidence  of  insurance, to exclude all jurors who carried  State

Farm  insurance.   The trial court denied Fleegel's  request  and

ruled that "there won't be any mention of the name of the company

providing  the  coverage,  and you can  voir  dire  on  insurance

questions,  but no one can mention State Farm."  Fleegel  appeals

this  ruling,  arguing that even if an award  has  little  or  no

actual  effect  on insurance rates, the jurors'  perception  that

they  have  a  financial  interest in the  outcome  of  the  case

          unfairly prejudiced them against an award of punitive damages.

          On  appeal Fleegel suggests that at least four  members

of the jury demonstrated during voir dire concern about insurance

rates  rising  because  of lawsuit verdicts.   Fleegel  did  not,

however,  challenge  these jurors for cause  on  the  grounds  of

either  bias23  or  preexisting opinions as to what  the  outcome

should be.24  Fleegel also did not use a peremptory challenge  to

remove any of these four jurors.

          Whether  a  juror is dismissed for cause is within  the

discretion of the trial court.25  The trial court here  carefully

considered  whether  a  potential juror's insurance  carrier  had

relevance to any conflict of interest.  It noted that most jurors

know  that there is insurance in liability cases, but that common

practice dictates that "we don't inquire . . . who the carrier is

and  excuse those jurors."  Moreover, Fleegel has not shown  that

any prejudice occurred as a result of the ruling.26  We therefore

find no error.

          The  dissent  argues that our holding today contradicts

our rulings in Malvo v. J.C. Penney Company, Inc.27 and Reich  v.

Cominco Alaska, Inc.28  These cases stand for the proposition that

jurors  who fall within certain Civil Rule 47(c) categories  must

be dismissed for cause.  Specifically, in Reich, we recently held

that  there  is a "per se rule allowing challenges for  cause  of

prospective jurors with a financial interest in the litigation."29

The  dissent  posits that State Farm insureds  have  a  financial

interest in the present case.  We disagree for two reasons:   (1)

the  jurors  who  had State Farm insurance only had  an  indirect

          financial interest in the litigation, and (2) they were unaware

of any possible financial interest in the litigation.

          In  Reich,  we  discussed  whether  indirect  financial

interest  was  sufficient to disqualify jurors under  Civil  Rule

47(c).  Reich held that a trial court must dismiss from the  jury

pool   stockholders  of  companies  that  have  direct  financial

interests in the outcome of the litigation, even if the companies

are not actual parties to the litigation.30  Reich also discussed

Harmotta  v.  Bender.31  The challenged jurors in  Harmotta  were

members  of  the Roman Catholic Church, and the case  involved  a

Roman  Catholic  parish  in  the same diocese  as  the  potential

jurors.32   We distinguished Harmotta from Reich by stating  that

"there  was only a possibility church members would be called  on

to reimburse the church."33  The same is true in this case.

          If  the  jury returned a punitive damages award against

Boyles,  State  Farm insureds would only have  a  possibility  of

bearing  a  cost,  and  that cost would  be  minimal.   Insurance

premiums already take into account that trials will subject  some

insureds to significant damages awards, so a damages award  would

not  automatically raise all insureds' premiums.   The  financial

interest  that  State Farm insured jurors have in  this  case  is

speculative at best.  Furthermore, unlike the situations in Reich

and  J.C. Penney, where the jurors knew that J.C. Penney and NANA

were  parties affected by the suits, State Farm insureds did  not

know  that State Farm was involved or might be affected  by  this

lawsuit.   As  a  result,  we  cannot agree  with  the  dissent's

assessment that Civil Rule 47(c) required State Farm insureds  to

          be dismissed for cause from the jury pool.

          The  dissent  also  contends that if Civil  Rule  47(c)

requires  the  exclusion  from juries of persons  with  financial

interest,  then the trial court must inquire into those financial

interests.   We agree that a trial court must inquire  about  any

financial interest known to a juror.   We do not agree,  however,

that  the  trial  judge must make known to  a  juror  an  unknown

financial  interest in the litigation.  We note that the  dissent

cites  no  authority to support the contention that  courts  must

inform  jurors  of  potential financial interests  of  which  the

jurors are unaware.

          2.   The  trial court did not err in excluding evidence
               of Boyles's outstanding arrest warrant.

          The  district court issued a warrant on July 16,  1998,

to  arrest  Boyles for failure to comply with ASAP  requirements.

Fleegel  sought to introduce this warrant as evidence  at  trial.

Fleegel's  offer  of  proof provided the  following  reasons  for

seeking  admission  of  the warrant: (1)  to  impeach  Boyles  by

showing that his probation had in fact been revoked, and  (2)  to

demonstrate why Boyles was not in court at trial on December  15,

1998.  The trial court ruled that evidence of the warrant was not

admissible,  reasoning  that  the evidence  had  only  a  tenuous

connection  with  material  issues  in  this  case  and  was  not

probative of why Boyles was not present at trial.  The court also

determined that even if the evidence was minimally probative,  it

would  waste  time and generate confusion about  the  details  of

enforcing alcohol treatment orders.

          Even  without evidence of the warrant, Fleegel was able

to  adduce  evidence  and  make the arguments  that  no  evidence

existed  that  Boyles  actually was in a recovery  program;  that

Boyles  had  lied  in  the  past about  his  participation  in  a

treatment program; and that Boyles had engaged in manipulation to

avoid having the full brunt of his criminal sanctions imposed.

          The  trial court did not abuse its discretion, and  the

ruling   did  not  substantially  impair  Fleegel's  rights.   We

therefore find no error.

          3.   The  trial  court  did not err  by  admitting  the
               testimony of Boyles's gastroenterologist.

          At  trial Boyles presented the videotaped deposition of

Dr. David Peach, a doctor who specializes in gastroenterology  --

diseases  of  the  stomach, intestines,  and  liver.   Dr.  Peach

testified  about his treatment of Boyles and the medical  records

that  he  received  from other physicians and  alcohol  treatment

facilities regarding Boyles.

           Fleegel  objected  to the foundation  of  Dr.  Peach's

testimony,  its relevance, and Dr. Peach's competency to  testify

regarding  issues  of  the  case,  particularly  given  that   he

specializes   in  gastroenterology  rather  than  psychiatry   or

psychology.   The  trial  court overruled  Fleegel's  objections,

determining that the testimony had relevance and that an adequate

foundation had been provided.  It explained its reasons for  this


          This  is  a  punitive  damage  case  and  the
          defendant's  social  standing  and  financial
          condition  are relevant to a punitive  damage
          case.  All of Dr. Peach's testimony regarding
          the  defendant's alcoholism  is  relevant  to
          those  issues, social standing and  financial
          condition.   There's  an adequate  foundation
          for  Dr.  Peach  to testify  regarding  those
          issues:   he   treated  the   defendant   for
          alcoholism and he participated in proceedings
          to have the defendant committed to a hospital
          for further treatment.

The  trial court also allowed Dr. Peach's references to  Boyles's

other  medical providers because these records formed  a  partial

basis for Dr. Peach's opinions.

          In   addition   to   the  relevancy,  foundation,   and

competency arguments made at trial, on appeal Fleegel argues that

this evidence had an unfair effect by distracting the jurors  and

generating  undue sympathy for Boyles.  She alleges  that  Boyles

used  Dr.  Peach's  testimony improperly to present  inadmissible

hearsay and other inappropriate information to the jury.

          The  trial  court  did  not  abuse  its  discretion  in

determining that Dr. Peach's testimony was relevant to the issues

of  Boyles's social standing and financial condition.  Dr.  Peach

testified  regarding  Boyles's  "inability  to  function   as   a

reasonable  human  in  society" as a health  consequence  of  his

alcoholism.  Moreover, Dr. Peach presented some evidence  related

to  Boyles's financial condition, including a hospital  admission

form that listed Boyles's occupation as "disabled" and the nature

of Boyles's medical problems from which the jury could reasonably

infer that Boyles could not work.  The trial court did not err in

determining  that Dr. Peach's testimony was relevant to  Boyles's

social  standing and financial condition as they related  to  the

punitive damages claim.

          4.   The trial court did not commit reversible error by
               excluding  from  evidence  other  medical  records
               contained in Dr. Peach's file.

          Fleegel  successfully prevented the admission at  trial

of  Boyles's  actual medical records, even though  these  records

were  used as exhibits during Dr. Peach's video deposition.   But

later  during  trial, Fleegel sought to supplement  her  exhibits

with  other of Boyles's medical records contained in Dr.  Peach's

file, which the doctor had not referred to during the deposition.

The  documents  that  Fleegel wished to admit concerned  Boyles's

medical  condition near the time of the collision and his refusal

to enter alcohol treatment programs.

          The trial court ruled that Fleegel could not supplement

her exhibits with the medical records in the absence of a witness

providing an explanation and foundation for the records.  It also

found that "[t]hose records could have been discussed during  Dr.

Peach's  deposition  and, had they been  discussed,  they  likely

would  have  been . . . admitted."  Additionally,  it  determined

that Fleegel was not significantly prejudiced by the exclusion of

these records because other evidence in the record supported  the

points for which Fleegel wanted the records presented.

          Any error in excluding the medical records was harmless

because,  as the trial court observed, Fleegel was able  to  show

through  other  evidence that Boyles did  not  cooperate  in  his

treatment. The trial court explained: "There's significant  other

evidence in the record regarding Mr. Boyles['s] failure to comply

with   treatment  recommendation  which  is  the  subject  matter

addressed  by  those  records."  Indeed,  Dr.  Peach's  testimony

provided evidence of repeated substance abuse treatment attempts,

subsequent   relapses,   and   non-compliance   with    treatment

recommendations.  Moreover, Fleegel did not avail herself of  the

opportunity  to call Dr. Peach as a live witness to  discuss  the

desired  records  or  to  call  the  doctors  and  other  medical

personnel   who  prepared  the  disputed  records  as  witnesses.

Therefore, this ruling does not warrant reversal.34

                     5.   The trial court's evidentiary decisions
               do   not  constitute  cumulative  error  requiring

          Fleegel  has presented on appeal challenges to  several

evidentiary decisions of the trial court.  She urges  this  court

to  apply the doctrine of "cumulative error" to find that even if

each individual error was harmless, the impact of the errors have

deprived  her of a fair trial.  In this case, the record included

evidence  from  which  Fleegel could make all  of  the  arguments

consonant  with  her  theory of the case.  Therefore,  the  trial

court's rulings did not violate Fleegel's right to a fair  trial,

and reversal is not warranted.

     B.   The Trial Court Did Not Err by Awarding Attorney's Fees
          to a Criminal Victim Who Was Not the "Prevailing Party"
          Under Civil Rules 68 and 82.

          Although Boyles was the prevailing party under Rule  68

and thus entitled to an award for attorney's fees under Rule 82,35

the  trial court concluded that it was proper to offset that  fee

award  against  a separate award to Fleegel as the  victim  of  a

serious crime.

          Alaska Statute 09.60.070(a) provides that a person  who

has  been injured may recover from the tortfeasor full reasonable

attorney's fees in a civil action if the injury resulted from  an

          attempt on the part of the offender to commit a serious criminal

offense.36   A "serious criminal offense" includes driving  while

intoxicated.37  We have never before addressed the interaction of

this  statute with other statutes and rules regarding  attorney's


          1.   A  crime victim need not be the "prevailing party"
               as  defined  by  Rule 68 to be awarded  attorney's
               fees under AS 09.60.070.

          Boyles argues that Fleegel should not have received  an

award  of attorney's fees because Boyles was the prevailing party

for  purposes of attorney's fees.  Boyles contends that he is the

prevailing  party  based on his Rule 68 offer that  exceeded  the

jury  award  of  damages  against him.  He  argues  that  as  the

prevailing party, his right to attorney's fees under Alaska Civil

Rule 82 preempts Fleegel's right to receive attorney's fees under

the crime victims' statute, AS 09.60.070.

          The   superior   court  attempted  to   reconcile   the

provisions that separately provide attorney's fees for victims of

serious  crimes  and  for parties who make a pretrial  settlement

offer  more  generous than the jury award.   It  determined  that

"[b]ecause each statute can be applied here without doing harm to

the purposes behind the other . . . each party is entitled to  an

award of fees."

          Boyles  argues  that  the crime  victims'  statute,  AS

09.60.070, "incorporates the prevailing party restriction of Rule

82,"  the rule providing attorney's fees to the prevailing  party

in  a civil case.38  However, AS 09.60.070 contains no prevailing

party  requirement  and appears to have been  intended  to  apply

          independently of Civil Rule 82.

          Cases prior to the 1997 amendment of AS 09.30.065  (the

offer-of-judgment  statute) and Rule  68  (the  offer-of-judgment

rule)  defined  "prevailing party" as the party "successful  with

regard  to  the main issues in the action."39  When in  1991  the

legislature  adopted AS 09.60.070,40 the crime victims'  statute,

Rule  82 provided for attorney's fees for the "prevailing  party"

in a civil case without defining that term.  The act enacting the

crime victims' statute amended Rule 82 "by requiring an award  of

full  reasonable attorney's fees to prevailing victims of certain

crimes."41  This amendment therefore directed that the  provision

allowing  full  attorney's  fees for crime  victims  replace  the

partial  attorney's  fees  award  that  the  crime  victim  could

otherwise  recover under Rule 82 had she prevailed in  the  civil

action.   This  is  consistent with the  legislative  intent,  as

expressed  by then-Representative Dave Donley, a sponsor  of  the

victims' rights bill, to "readjust[] the balance between  victims

and  the  perpetrators in the system by making the experience  of

being involved in a crime a little less burdensome" and "allowing

victims of violent crimes to recover . . . full attorneys fees in

civil  cases  brought  against the  person  who  committed  th[e]


          It  was  not  until  1997, six years  after  the  crime

victims'  statute  was enacted, that the legislature  established

that  the  offeror  of  a settlement that met  certain  standards

"shall be considered the prevailing party for the purposes of  an

award  of  attorney's  fees  under  the  Alaska  Rules  of  Civil

          Procedure."43  Therefore, at the time it enacted the provision

awarding attorney's fees to crime victims, the legislature  could

not  have contemplated that the 1997 offer-of-judgment definition

of  prevailing  party  would apply.   And  when  the  legislature

enacted amendments to the offer-of-judgment rule in 1997, it  did

not specifically address the crime victims' statute.

          We   have   determined  that  the  "prevailing   party"

requirement  of  Rule  82 does not limit  the  ability  to  award

attorney's  fees  under  other  statutory  provisions  that   use

standards separate from Rule 82.  For example, a spouse may  seek

attorney's fees during a divorce or annulment proceeding under AS  Considerations other than "prevailing party" dictate

whether  such fees are awarded: "Cost and fee awards in a divorce

are  not  to  be  based  on  the prevailing  party  concept,  but

primarily on the relative economic situations and earning  powers

of the parties."45

          Moreover,  the  interpretation of federal  fee-shifting

statutes  by  federal courts indicates that an  offer-of-judgment

rule  and statutory fee-shifting coexist.  Federal Rule of  Civil

Procedure  68  differs from Alaska Civil  Rule  68  in  that  the

federal  rule allows the recovery of "costs" and does not specify

whether "costs" includes attorney's fees.46  Where attorney's fees

are  statutorily awarded, in cases under the Clean  Air  Act  and

Fair  Labor  Standards Act, for example, rejection of  a  Federal

Rule  68  offer does not preclude an award for post-offer fees.47

Professors  Wright,  Miller, and Marcus  also  indicate  that  an

offset  of attorney's fees could be appropriate, in warning  that

          "courts  must be careful to avoid the sort of automatic

prohibition on post-offer fees imposed by Rule 68."48

          We  therefore affirm the trial court's award of fees on

the basis that a crime victim need not be a "prevailing party" to

be awarded attorney's fees under AS 09.60.070, the crime victims'

statute.   Apart from questioning the hypothetical  propriety  of

requesting  full  fees  in  the  context  of  a  contingent   fee

arrangement,  Boyles does not challenge the propriety  of  hybrid

fees  or the specific calculation method used by the trial court.

Because these issues were not briefed, we decline to reach them.

          2.   Timing of motion for attorney's fees

          Boyles also argues that the trial court should not have

awarded  Fleegel  attorney's fees under AS 09.60.070,  the  crime

victims'  statute, because a motion for these fees was not  filed

within  ten  days after the date of judgment.  Civil  Rule  82(c)

establishes  the  time period in which attorney's  fees  must  be

requested: "Failure to move for attorney's fees within  10  days,

or  such  additional  time  as the  court  may  allow,  shall  be

construed  as a waiver of the party's right to recover attorney's


          The  initial judgment order was distributed on  January

29,  1999.   On  May 14, 1999, Fleegel filed a motion  requesting

that  the superior court vacate the initial judgment and enter  a

new judgment that conformed with AS 09.60.070, the crime victims'

statute.   Fleegel sought relief under Alaska Civil  Rule  60(b),

which  permits the court to relieve a party from a  judgment  for

reasons  of mistake, inadvertence, or excusable neglect  where  a

          motion seeking such relief is filed "within a reasonable time."49

The superior court granted the motion for relief from judgment on

June 14, 1999, finding that such relief served "the interests  of

justice."50   Because Fleegel sought relief from  judgment  under

Civil  Rule  60(b), rather than attorney's fees under Civil  Rule

82(c),  the  limitations period for Civil  Rule  82(c)  does  not


          The  trial  court  did  not  abuse  its  discretion  in

determining that Fleegel did not waive her request for attorney's

fees.51   We  therefore affirm the attorney's fee  award  on  its



          We  AFFIRM  the evidentiary rulings made by  the  trial

court.  We also AFFIRM the attorney's fee awards.

BRYNER, Justice, with whom CARPENETI, Justice, joins, dissenting.

          I  disagree  with the opinion's conclusions  concerning

the  admissibility of evidence of Boyles's insurance coverage and

the  propriety of denying Fleegel's alternative motion to exclude

for   cause   all   prospective  jurors  who  were   State   Farm

policyholders.  I would reverse on those points.


          The opinion concludes that the superior court correctly

denied Fleegel's motion to exclude evidence of Boyles's insurance

coverage,  reasoning  that  Alaska  Evidence  Rule  411  did  not

preclude  this evidence because evidence of a defendant's  wealth

has  relevance  independent of fault in a punitive damages  case:

"The  trial  court  focused  on the  relevance  of  insurance  to

Boyles's  financial  condition,  a  purpose  not  excluded  under

Rule  411.  Therefore, the trial court did not err in failing  to

exclude  evidence  of insurance coverage."1   But  the  opinion's

analysis overlooks persuasive authority to the contrary and skips

two  important  questions in the chain of admissibility:  whether

insurance  coverage actually is relevant evidence of wealth  and,

if  it is, whether its prejudicial effect outweighs its probative


          While  the opinion correctly observes that evidence  of

the defendant's wealth is normally relevant in a punitive damages

case,2  it neglects to ask if evidence of insurance coverage  for

punitive  damages  is  relevant  evidence  of  wealth  under  the

specific  facts  of this case.  Here, assuming  that  Boyles  had

shown that he was covered for punitive damages,3 evidence of  his

          coverage would have been irrelevant to prove his wealth.  For as

the  New  Mexico  Supreme Court recognized,  "[P]unitive  damages

liability  coverage is not an asset which can be used to  measure

true  punishment and . . . therefore, it should not be considered

by  the  jury  in  assessing a defendant's financial  standing."4

Wisconsin  has  recently ruled the same way:  "Although  we  note

that  when assessing punitive damages a jury is permitted to know

evidence  of  the wrongdoer's wealth, insurance coverage  is  not

evidence of wealth."5

          And  even  if evidence of coverage were deemed relevant

to  the issue of wealth in a punitive damages case, Evidence Rule

403  would  preclude its admission if the trial court found  that

the  probative  force  of that evidence was  outweighed  by  "the

danger   of  unfair  prejudice,  confusion  of  the  issues,   or

misleading the jury."6  Here, the trial court never undertook the

balancing  process prescribed by Rule 403.  But it  seems  to  me

that  the  potential prejudicial effect of the disputed  evidence

far  outweighed whatever limited probative value  it  might  have

had.   As  evidenced by a juror's all-too-predictable request  to

know whether "punitive damages [are] direct[ed] to Mr. Boyles  or

to  the  insurance  company," as well as by the jury's  anomalous

punitive  damages  verdict  (which  found  Boyles  deserving   of

punishment  but imposed no punitive damages), the  trial  court's

unfortunate  decision  to allow the jury  to  learn  of  Boyles's

insurance  coverage  opened the door to  precisely  the  kind  of

danger  that Rule 403 was designed to prevent: causing  confusion

and misleading the jury.

          New  Mexico  and  Wisconsin have  both  suggested  that

evidence  of  coverage  would  have  to  be  excluded   as   more

prejudicial  than  probative, even if it were  relevant.7   Texas

agrees.8    And  most  recently,  Idaho  has  reached  the   same

conclusion.9  Indeed -- barring a narrow exception carved out for

a  situation not presented here -- it appears that no other court

addressing this issue has found such evidence admissible.10   The

narrow exception is a curative one: it allows plaintiffs to admit

evidence  of  coverage to rebut a defense  that  a  defendant  is

impoverished and therefore unable to pay punitive damages.11

          Shane v. Rhines, which today's opinion holds out as its

guiding  authority,12 is just such a case: it considered  whether

evidence  of  coverage  was admissible to rebut  the  defendant's

affirmative  claim  of  poverty.13  Neither  Shane's  per  curiam

plurality  nor either of its separate opinions purports  to  hold

that  evidence of coverage should be admitted except as  actually

needed  to  cure  a  misleading impression  left  by  affirmative

evidence of poverty.  And notably, in Schaefer v. Ready,  a  more

recent  punitive  damages  case in which  admission  of  evidence

proving  a  defendant's coverage was sought to  cure  affirmative

evidence of poverty, the Idaho Supreme Court held that the better

approach would be to exclude with one stroke both the affirmative

defense and the consequent need for rebuttal.14

          Shane and Schaefer, then, both serve to illustrate that

necessity  plays  an  indispensable role in Evidence  Rule  403's

balancing process.  Evidence that is arguably relevant but has an

obvious potential to cause prejudice should be admitted under the

          rule only when a realistic, case-by-case assessment reveals an

apparent  need  for  its  admission that  predominates  over  its

potential to confuse, mislead, or unfairly prejudice the jury.

          In   the   present  case,  there  was  no   conceivably

legitimate need for evidence of Boyles's insurance coverage.  For

Boyles's  counsel himself injected the fact of coverage;  and  he

did  so  not to refute evidence that Boyles was unable to  afford

punitive damages. To the contrary, defense counsel relied on this

information to forward a novel theory: that because Boyles -- the

only  truly  guilty party -- could not pay punitive damages,  his

innocent  insurer  should not be targeted for punishment  in  his


          Yet  this  theory of relevance -- the only theory  that

the disputed evidence of coverage realistically tended to support

--  is  disingenuous and fundamentally subversive to  the  public

interest.  Insurance is a regulated industry in Alaska, as it  is

almost   everywhere  else  in  the  nation,  because  the   state

recognizes  a  strong  public  interest  in  fostering  trust  in

insurers   and  in  protecting  consumers  who  choose   to   buy

coverage.15   Once insurers contract to pay claims  for  punitive

damages, then, the state has a strong public interest in ensuring

that  coverage  is fairly provided and claims  fairly  paid.   It

would be inimical to this public interest if insurers could avoid

legal  responsibility for contractual obligation  by  the  simple

expedient  of insisting that they are innocent parties  and  that

their  insured drivers should be punished only to the  extent  of

their personal ability to pay.

          Correspondingly, there is simply no factual  basis  for

arguing  that  the  insurer's liability to pay  punitive  damages

amounts to punishment for the insurer: to an insurer that accepts

premiums  to  cover punitive damages, the obligation  to  pay  an

insured  driver's punishment is simply a business debt  that  the

company  has contracted to pay.  In my view, then, there  was  no

legally  permissible reason to allow Boyles's counsel  to  inform

the jury that Boyles was insured.

          Nor can the record sustain a finding of harmless error.

Appellate  courts have long recognized that evidence of insurance

coverage   can  easily  inflame  juries;  courts  have   likewise

recognized  that the risk of prejudice inherent in such  evidence

poses especially grave dangers in punitive damages cases,16 where

the  prejudice  can cut either way, acting as "a two-edged  sword

depending  on  the  wealth or poverty of the  defendant."17   And

courts   have  further  recognized  that  this  sword  of  unfair

prejudice  is  no  less  dangerous when  wielded  by  an  insured

defendant than when in the hands of an injured plaintiff.18

          Here,  Boyles's  attorney artfully  wielded  the  sword

against Fleegel.  After convincing the trial court at the  outset

of  the  proceedings to deny Fleegel's motion to exclude evidence

of  coverage, Boyles's counsel immediately told the  jury  during

voir  dire  that he had been hired by Boyles's insurer.   Fleegel

did everything she could to contain the inevitable damage flowing

from  this revelation: she downplayed the issue, allowed Boyles's

attorney no obvious opening to dwell on Boyles's coverage  during

the  trial, and stipulated to an instruction at the end of  trial

          that mirrored the court's pretrial ruling and told the jury no

more than defense counsel took pains to tell it at the outset  --

that Boyles was insured and was represented by a lawyer hired  by

his insurer.

          Despite  Fleegel's best efforts, defense  counsel  used

Boyles's  coverage as the foundation for a successful empty-chair

defense:  a  tactic that emphasized Boyles's absence and  poverty

and  that invited the jury to conclude that his insurer had  been

unjustly  left  holding the bag -- abandoned by  the  only  truly

guilty  party.  Defense counsel's first words in closing argument

reminded  the  jury that Boyles's insurer was the real  party  in

interest:  "It's pretty silly to argue that an insurance  company

likes  a  hit-and-run driver or a drunk driver."  Defense counsel

proceeded  to emphasize that Boyles would not be deterred  by  an

award  of  punitive damages, since "[h]e doesnt have any assets."

And  the  point was cemented in defense counsel's final words  to

the  jury: "[I]t's quite clear that they're not really trying  to

get money back from Mr. Boyles.  He doesn't have any capacity  to

pay . . . . [H]e's not the target here."

          Yet  in  the eyes of the law Boyles was Fleegel's  only

target  -- whether Boyles had insurance or not.  Evidence of  his

coverage  --  or  possible coverage -- was both immaterial  as  a

matter  of  law  and  irrelevant as a matter  of  fact.   But  as

illustrated  by  the jury's question concerning punitive  damages

and  its  ensuing verdict, Boyles's strategy nonetheless had  its

intended effect.

          Today's  opinion nonetheless declines  to  find  error,

professing  an  inability  to  locate  any  cases  holding   that

"introduction  of insurance evidence is reversible error  because

it  is  prejudicial  to  a plaintiff."19   Yet  this  absence  of

precedent  is  beside  the point.20  A novel  tactic  whose  sole

purpose  is  to  prejudice an opponent is  hardly  proper  merely

because it has never before been condemned; and the fact that the

tactic  prejudices a plaintiff rather than a defendant is  wholly


          More  to  the point is the opinion's refusal to  follow

well-settled law that allows evidence of coverage to be  admitted

only  when  offered  by a party seeking to refute  an  opponent's

affirmative claim of inability to pay punitive damages.  And more

telling still is the opinion's failure to identify any legitimate

purpose  that evidence of coverage could conceivably  serve  when

offered  on behalf of a party like Boyles, who actively  asserted

that he was too poor to pay punitive damages.

          On  this record, then, it is simply unrealistic to find

either an absence of error or harmless error.


          I  also  disagree with the opinion's decision to affirm

the  trial  court's  denial of Fleegel's  alternative  motion  to

excuse State Farm policyholders from serving on her jury.

          As a contingent remedy to be used in the event that the

court   denied  her  motion  to  preclude  evidence  of  Boyles's

insurance  coverage, Fleegel asked the superior  court  for  voir

dire examination to identify and excuse for cause all members  of

the  jury panel who were insured by State Farm.  The court denied

          the motion, instead precluding any mention of State Farm by name

and barring any inquiry as to the identity of prospective jurors'

insurers.  In upholding this ruling, today's opinion posits  that

"[w]hether  a  juror  is  dismissed  for  cause  is  within   the

discretion  of  the trial court."21  The opinion  then  concludes

that the superior court did not abuse its discretion.22

          But  the opinion is mistaken in assuming that Fleegel's

challenge  for cause raised a discretionary issue.  Alaska  Civil

Rule  47(c)(10)  and (12) categorically require a  challenge  for

cause  to be granted as to any prospective juror who is a  client

of  a party or who has a financial interest in the outcome of the

case.23   Our  decisions  applying  these  provisions  explicitly

recognize  that  they  prohibit  "certain  relationships  between

jurors  and  parties"  and that "[a] trial judge  does  not  have

discretion  to deny a challenge for cause once that  relationship

has been established."24

          In  my  view,  when a court presiding over  a  punitive

damages  claim allows an insured defendant to tell the jury  that

the defendant's insurance company is the real party in interest -

-  the  plaintiff's real "target" -- this information  inevitably

creates a genuine risk that jurors who are policyholders  of  the

same  insurer, or who think that they might be, will  perceive  a

financial  interest in the outcome.  The financial interest  here

is certainly no more attenuated than the one at issue in Reich v.

Cominco  Alaska, Inc., where we held that Rule 47(c)(12) required

automatic  disqualification of all prospective  jurors  who  were

shareholders in an Alaska Native corporation that was not a party

          to the litigation but had financial ties to the named defendant

and  stood to benefit indirectly from the outcome of the  case.25

And  this interest is at least as substantial as the one in Malvo

v.   J.C.   Penney  Co.,  where  we  held  that  Rule   47(c)(10)

categorically  required exclusion of all prospective  jurors  who

had accounts with J.C. Penney and therefore technically qualified

as the companys "debtors."26

          In  reaching  the  opposite  conclusion  here,  today's

opinion  posits  that "[t]he financial interest that  State  Farm

insured  jurors have in this case is speculative at best."27  But

the  opinion's  analysis  of the closeness  of  the  relationship

between policyholders and their insurers is misdirected, for Rule

47(c)(10)  expressly preempts the issue.  As  already  mentioned,

Rule  47(c)(10) categorically excuses all prospective jurors  who

are  "clients"  of a party or an attorney.28  Since policyholders

are   undeniably   clients   of  their   insurers,   Rule   47(c)

unequivocally deems the financial relationship between  insurance

companies  and their policyholders sufficiently close to  require

automatic  disqualification in any action where a  policyholder's

insurer is a party or an attorney.

          Suppose for example that State Farm was actually  named

as  a  defendant in a lawsuit: there would be no doubt  that  its

policyholders would have a sufficiently close financial  interest

to  require  their automatic disqualification as "clients"  under

Rule 47(c)(10).  Because the financial relationship between State

Farm and its policyholders is no different here than it would  be

if   State  Farm  were  a  named  party,  it  follows  that   the

          policyholder/insurer relationship itself is sufficiently close to

warrant disqualification, provided that the other requirements of

Rule  47  are  met.  The critical question, then, is whether  the

role  State Farm played in this case justifies treating it  as  a


          In  the run-of-the-mill personal injury case against an

insured party, of course, an insurer's role might be insufficient

to  warrant  treating it as a party under Rule 47.   But  when  a

policyholder  acting  through  counsel  retained  by  an  insurer

expressly  reveals  the existence of coverage  and  portrays  the

insurer as the plaintiff's true "target," it seems to me that, in

terms  of  triggering  concerns  for  potential  jury  bias,  the

insurer's role becomes virtually indistinguishable from the  role

it  would  play as an actual party.  Hence, in this  situation  I

would  conclude that the insurer must be treated as a party under

Rule  47(c)(10)'s provisions governing automatic disqualification

of clients.

          In  the  proceedings below, the superior court's  order

restricting  jury  voir dire precluded Fleegel from  establishing

the  very  relationship  that would have triggered  Rule  47(c)'s

mandatory  right to a challenge for cause.  True, the order  also

prevented  the  jury  panel from learning the  name  of  Boyles's

insurer.   But  this  precaution hardly cured the  potential  for

prejudice:  by  allowing Boyles to tell  the  jury  that  he  was

insured  by an unnamed insurer, the trial court effectively  left

all insured jurors -- not just those insured by State Farm --  to

speculate about what impact a punitive damages verdict might have

on their own insurance premiums.

          Thus, in my view, concealing State Farm's identity  was

no  more  acceptable here than shielding J.C.  Penney's  identity

would  have  been  in Malvo v. J.C. Penney Co. or  shielding  the

Native corporation's identity would have been in Reich v. Cominco

Alaska,  Inc.   As shown by the jury's question and  its  ensuing

verdict,  the superior court's approach simply spread the  danger

of  prejudice;  it failed to protect Fleegel from potential  jury

bias as required under Rule 47(c).

          Accordingly,   given  the  superior  court's   decision

allowing  defense counsel to tell the jury of Boyles's  insurance

coverage, I would hold that Rule 47(c)(10) required the court  to

grant challenges for cause as to all prospective jurors who  were

State Farm policyholders.


           I therefore dissent.

     1    Michael Boyles passed away after this appeal was filed.
We  granted Fleegel's motion to substitute Boyles's estate as the
appellee/cross-appellant,  but  we  will  continue  to  refer  to
"Boyles" throughout the opinion.

     2     Civil  Rule 60(b) permits a court to relieve  a  party
from   a   final   judgment   for  reasons   including   mistake,
inadvertence, and excusable neglect.

     3     AS  09.60.070 provides attorney's fees for victims  of
serious criminal offenses:

               (a)   A  person who has been injured  or
          damaged,  or the estate of a person  who  has
          died,  may  recover  from the  offender  full
          reasonable attorney fees in a civil action or
          a   wrongful  death  action  if  the  injury,
          damage, or death resulted from

               (1)   an  attempt  on the  part  of  the
          person to prevent the commission of a serious
          criminal  offense or to apprehend an offender
          who has committed a serious criminal offense,
          or  aiding  or  attempting to  aid  a  police
          officer  to  do so, or aiding a victim  of  a
          serious criminal offense;  or

               (2)   the commission or attempt  on  the
          part  of  the  offender to commit  a  serious
          criminal offense.

Under  this statute, a serious criminal offense includes  driving
while intoxicated.  See AS 09.60.070(c)(14).

     4    See discussion of the applicable law to the "prevailing
party" determination infra notes 35 & 43.

     5    The trial court reasoned that because Fleegel had a one-
third  contingency fee agreement with her counsel, the  award  of
$2,220.90,  as  one-third of $6,662.69, constituted  a  full  fee
award under AS 09.60.070.

     6    Bliss v. Bobich, 971 P.2d 141, 144 n.3 (Alaska 1998).

     7    Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000).

     8    Id.

     9    Deal v. Kearney, 851 P.2d 1353, 1356 n.4 (Alaska 1993).

     10     Sauve  v.  Winfree, 985 P.2d 997, 999  (Alaska  1999)
(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).

     11     It  appears  that Boyless policy may, in  fact,  have
covered  punitive  damages. Counsel  for  Boyles  stated  at  the
pretrial  conference  that  "[m]y  position  is  that  there   is
[insurance  coverage for punitive damages].  There's no  specific
exclusion in the policy for punitive damages."

     12     594  P.2d  38, 48 (Alaska 1979), overruled  on  other
grounds  by  Dura Corp. v. Harned, 703 P.2d 396, 405 n.5  (Alaska

     13    971 P.2d 158, 175-76 (Alaska 1999).

     14    See AS 09.17.020(c)(6).

     15    672 P.2d 895 (Alaska 1983).

     16    Id. at 899-900.

     17    Id. at 902 (Compton, J., concurring).

     18    Id. (Compton, J., concurring).

     19    Id. (Burke and Matthews, J., dissenting).

     20     E.g.,  Humana  Health Ins. Co. of  Florida,  Inc.  v.
Chipps,  802  So. 2d 492, 497-98 (Fla. App. 2001)  (holding  that
trial court correctly admitted evidence of indemnity agreement to
rebut  defendants assertions that a large punitive damages  award
would  force  the  company into financial  straits);  Wheeler  v.
Murphy,  452  S.E.2d 416, 424 (W. Va. 1994) ("A  defendant's  net
worth  is relevant to the issue of punitive damages, and in  this
case,  where  defense counsel offered evidence  of  Mr.  Murphy's
meager finances, the plaintiff's rebuttal evidence disclosing the
existence  and policy limits of Mr. Murphy's liability  insurance
is  not barred by either [West Virginia Rules of Evidence] 401-03
or  Rule 411."); Wilder v. Cody Country Chamber of Commerce,  933
P.2d 1098, 1108 (Wyo. 1997) (holding that trial court did not err
in  admitting  evidence of defendants inability to  pay  punitive
damages where plaintiff failed to elicit on re-direct information
concerning whether defendant had insurance, which would have been
proper rebuttal evidence).

     21    See cases cited supra note 20.

     22    Alaska R. Evid. 411.

     23    See Alaska R. Civ. P. 47(c)(2).

     24    See Alaska R. Civ. P. 47(c)(3).

     25     See Dalvoski v. Glad, 774 P.2d 202, 205 (Alaska 1989)
("The  grounds  listed  in Rule 47(c)(2),  (3),  and  (4),  which
approximate  juror  personal knowledge  of  facts  of  the  case,
involve  value judgments by the trial court and are committed  to
the  trial  court's discretion."); Mitchell v. Knight,  394  P.2d
892, 897 (Alaska 1964) ("We shall interfere with the exercise  of
[a  trial judge's] discretion [in the determination of challenges
for  cause]  only in exceptional circumstances and to  prevent  a
miscarriage of justice.").

     26     Although the jury returned a figure of zero  for  the
amount  of  punitive  damages  after  determining  that  punitive
damages were warranted, Fleegel did not challenge the verdict  as
inconsistent and she has not raised this point on appeal.

     27    512 P.2d 575 (Alaska 1973).

     28    ___ P.3d ___, Op. No. S-5637 (Alaska, Oct. 4, 2002).

     29    Id. at 18.

     30    Id. at 8 ("We now extend Noey and hold that the per se
rule that excludes as jurors stockholders in a company which is a
party  to  the  litigation  also applies  to  stockholders  in  a
corporation  which  is  not  a party  but  which  is  nonetheless
financially interested in the outcome.").

     31    601 A.2d 837 (Pa. Super. 1992).

     32    Id. at 838.

     33     Reich v. Cominco Alaska, Inc., ___ P.3d ___, Op.  No.
5637 at 11 (Alaska, Oct. 4, 2002).

     34     We recently noted in Dobos v. Ingersoll, 9 P.3d 1020,
1027  (Alaska  2000), that "medical records,  including  doctors'
chart  notes, opinions, and diagnoses, fall squarely  within  the
business records exception to the hearsay rule."  But because any
error in excluding the medical records was harmless, we need  not
reach  the  question  of  whether the records  were  sufficiently
authenticated   to   be  admitted  under  the  business   records

     35    Civil Rule 68 states, in part: "If an offeror receives
costs  and reasonable actual attorney's fees under [the offer-of-
judgment  rule], that offeror shall be considered the  prevailing
party for purposes of an award of attorney fees under Civil  Rule
82."  (Emphasis added.)
          Civil Rule 82 provides, in part:
               (a)    Allowance  to  Prevailing  Party.
          Except as otherwise agreed to by the parties,
          the prevailing party in a civil case shall be
          awarded attorney's fees calculated under this

               (b)  Amount of Award.

               . . . .

               (2)   In  cases in which the  prevailing
          party  recovers no money judgment, the  court
          shall  award the prevailing party in  a  case
          which  goes  to  trial  30  percent  of   the
          prevailing    party's    reasonable    actual
          attorney's   fees   which  were   necessarily
     36    AS 09.60.070 provides:

               (a)   A  person who has been injured  or
          damaged,  or the estate of a person  who  has
          died,  may  recover  from the  offender  full
          reasonable attorney fees in a civil action or
          a   wrongful  death  action  if  the  injury,
          damage, or death resulted from

               . . . .

               (2)   the commission or attempt  on  the
          part  of  the  offender to commit  a  serious
          criminal offense.

               . . . .

               (c)   In this section, "serious criminal
          offense" means the following offenses:

               . . . .

               (14)   driving   while  intoxicated   or
          another crime resulting from the operation of
          a  motor vehicle, boat, or airplane when  the
          offender is intoxicated.
     37    See AS 09.60.070(c)(14).

     38    See Civil Rule 82(a) supra note 35.

     39    Cooper v. Carlson, 511 P.2d 1305, 1308 (Alaska 1973).

     40    AS 09.60.070 was initially enacted as AS 09.55.601, and
renumbered in 1994.

     41    Ch. 57,  25, SLA 1991.

     42    Hearing on H.B. 100, Victims' Rights, Before the House
Comm.  on  Health,  Educ. & Social Servs., 17th  Legis.  (Alaska,
March  25, 1991) (summary of statement by Rep. Dave Donley, prime
sponsor of H.B. 100).

     43     AS 09.30.065(b); see also Alaska Civil Rule 68(b) and
(c)  (providing that "[i]f the judgment finally rendered  by  the
court  is  at least 5 percent less favorable to the offeree  than
the offer . . . . that offeror shall be considered the prevailing
party for purposes of an award of attorney fees under Civil  Rule
82").   The  trial  court  concluded:   "[Boyles]  qualifies  for
attorney fees because his pretrial settlement offer, rejected  by
[Fleegel], was substantially more generous than the jury  award."
Although the trial court concluded that Boyles was the prevailing
party  under AS 09.30.065(b), the same conclusion may be  reached
under Rule 68.  In Supreme Court Order 1281 (effective August  7,
1997), this court accelerated the effective date of the amendment
to Civil Rule 68, providing that "the amendments to Civil Rule 68
adopted by paragraph 5 of this order are applicable to all  cases
filed  on  or  after August 7, 1997."  Thus, Civil  Rule  68,  as
amended in 1997, applies in this case because this case was filed
on August 20, 1997.

     44    AS 25.24.140(a)(1).

     45    Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981) (citing
Burrell v. Burrell, 537 P.2d 1, 7 (Alaska 1975)); see also Houger
v. Houger, 449 P.2d 766, 772 (Alaska 1969) (considering former AS
25.24.140,  and  noting that there was "legislative  intent  that
attorney's fees be allowable . . . in a divorce action regardless
of  who  is the prevailing party"); Johnson v. Johnson, 564  P.2d
71,  76  (Alaska 1977) ("[T]he 'prevailing party' rule, used  for
determination of awards of attorney's fees under Rule 82,  Alaska
Rules of Civil Procedure, is not applicable to awards of fees  in
divorce actions.").

     46    Federal Rule of Civil Procedure 68 states, in part:

          At  any  time  more than 10 days  before  the
          trial  begins,  a party defending  against  a
          claim  may  serve upon the adverse  party  an
          offer  to allow judgment to be taken  against
          the defending party for the money or property
          or to the effect specified in the offer, with
          costs  then  accrued. . . . If  the  judgment
          finally  obtained by the offeree is not  more
          favorable  than the offer, the  offeree  must
          pay  the  costs incurred after the making  of
          the offer.
     47    See United States v. Trident Seafoods, 92 F.3d 855, 860
(9th  Cir.  1996)  ("[B]ecause attorneys' fees are  not  properly
awardable  as  'costs' under the [Clean Air Act],  they  are  not
within the scope of Rule 68."); Haworth v. Nevada, 56 F.3d  1048,
1051 (9th Cir. 1995) (Fair Labor Standards Act).

     48     12  Charles Alan Wright et al., Federal Practice  and
Procedure: Civil 2d  3006.2 (2d ed. 1997).

     49    Civil Rule 60, which provides relief from a judgment or
order, states, in part:

               (b)    Mistakes   --   Inadvertence   --
          Excusable   Neglect   --   Newly   Discovered
          Evidence -- Fraud -- Etc.  On motion and upon
          such terms as are just, the court may relieve
          a  party  or  a  party's legal representative
          from  a  final judgment, order, or proceeding
          for the following reasons:

               (1)  mistake, inadvertence, surprise  or
          excusable neglect;

               . . . .

               (6)   any other reason justifying relief
          from the operation of the judgment.

               The  motion  shall  be  made  within   a
          reasonable time, and for reasons (1), (2) and
          (3) not more than one year after the date  of
          notice  of the judgment or orders as  defined
          in  Civil Rule 58.1(c).
     50      The  order  found:  "Because  plaintiff's  counsel's
affidavit  shows  that  he  and other  experienced  counsel  were
unaware  of  the attorney fee statute, the failure to  assert  an
attorney fee claim under AS 09.60.070 is excusable neglect.   The
attorney  fee statute reflects important public policy.  Granting
the  motion, and awarding fees required by the statute, will  not
cause unfair prejudice to the defendant."

     51     See  Hatten v. Hatten, 917 P.2d 667, 670 n.3  (Alaska
1996)  (applying abuse of discretion standard to review of relief
from judgment).

1    Slip Op. at 13.

     2    See id. at 10-11.

     3     Preliminarily,  it is worth noting  that  evidence  of
coverage  would  be categorically irrelevant to the  issue  of  a
defendant's  ability to pay punitive damages  absent  a  specific
showing  that  the  defendant was actually covered  for  punitive
damages.  Cf. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d
35,  40-41 (Tex. 1998) (distinguishing between evidence of actual
and  potential wealth in punitive damages case).  Here,  Boyles's
counsel  equivocated on this issue when asked whether Boyles  was
covered  for punitive damages.  Although hired by State  Farm  to
defend the case, counsel insisted that he could not speak for the
company   and  said  only  "[m]y  position  is  that   there   is

     4    Baker v. Armstrong, 744 P.2d 170, 173 (N.M. 1987).

     5     City of West Allis v. Wis. Elec. Power Co., 635 N.W.2d
873, 889 (Wis. App. 2001) (citations omitted), review denied, 643
N.W.2d 93 (Wis. 2002).

     6    Alaska R. Evid. 403.

7     See  Baker,  744  P.2d  at 173; City  of  West  Allis,  635
N.W.2d at 888-89.

     8    See Owens-Corning Fiberglas Corp., 972 S.W.2d at 41.

     9    Schaefer v. Ready, 3 P.3d 56, 59 (Idaho App. 2000):
          [T]he  [trial] court ruled that  evidence  of
          the  Readys' insurance coverage for  punitive
          damages  awards  was  not admissible  because
          "the   probative   value  was   substantially
          outweighed   by  its  potential   prejudicial
          impact."   Specifically, the court felt  that
          the  "mention  of  insurance  invites  higher
          awards  than  are justified  by  the  facts."
          This ruling is in accord with [Idaho Rule  of
          Evidence] 411[.]
     10    The  court's opinion tries to stand the point  on  its
head  by  observing that "no court has held that introduction  of
insurance  evidence is reversible error because it is prejudicial
to  a plaintiff[.]"  Slip Op. at 13. Yet the absence of authority
simply  reflects  the  reality that few trial  courts  have  ever
thought to admit evidence of coverage for purposes comparable  to
those  at  issue  here:  to prove that a defendant  deserving  of
punishment   should  not  be  punished  because  the  defendant's
innocent  insurer  should not have to  pay  --  even  though  the
insurer presumably has contracted and been paid to do just  that.
The  salient point, then, is that case law uniformly rejects  the
admission  of such evidence; no authority supports its  admission
on the theory that prejudicing a plaintiff's case is somehow more
acceptable than prejudicing a defendant's case.

     11    See, e.g., Wheeler v. Murphy, 452 S.E.2d 416, 424  (W.
Va. 1994).

     12   See Slip Op. at 11-12.

     13   672 P.2d 895, 899 (Alaska 1983).

     14    See  3  P.3d at 59.  Cases in jurisdictions  cited  by
Schaefer   as  applying  the  same  rule  indicate   that   those
jurisdictions routinely exclude evidence of coverage in  punitive
damages cases.  See id.

     15    See,  e.g.,  AS  21.03.010 (requiring  "[a]ll  persons
transacting a business of insurance in this state" to comply with
the Alaska Insurance Code); AS 21.06.010 (authorizing appointment
of  statewide  director of insurance); AS 21.06.020 (establishing
division of insurance); and AS 21.06.080 (empowering director  of
insurance to enforce Alaska Insurance Code).

16    See,  e.g.,  City of West Allis v. Wis.  Elec.  Power  Co.,
635 N.W.2d 873, 889 (Wis. App. 2001).

     17    S. Life & Health Ins. Co. v. Whitman, 358 So. 2d 1025,
1027 (Ala. 1978) (Jones, J., concurring).

     18    See  Schaefer, 3 P.3d at 59 (quoting Kemezy v. Peters,
79 F.3d 33, 37 (7th Cir. 1996)):

          [I]t   is   bad  enough  that  insurance   or
          indemnification   reduces    the    financial
          incentive  to avoid wrongdoing .  .  .  .  It
          would be worse if the cost of insurance fell,
          reducing the financial disincentive to engage
          in  wrongful behavior, because the  insurance
          company  knew  that its insured  could  plead
          poverty to the jury.

(Quotation marks omitted.)
19   Slip Op. at 13.

     20    The  observation is also incomplete in that it  simply
ignores  the Idaho Supreme Court's carefully reasoned opinion  in
Schaefer v. Ready, which would categorically exclude evidence  of
insurance coverage even if offered to refute a claim of inability
to pay.  See 3 P.3d at 59.

21   Slip Op. at 14.

     22   See id. at 14-15.

     23   Alaska Civil Rule 47(c) states:

               Challenges   for   Cause.   After    the
          examination   of   prospective   jurors    is
          completed and before any juror is sworn,  the
          parties may challenge any juror for cause.  A
          juror challenged for cause may be directed to
          answer   every  question  pertinent  to   the
          inquiry.  Every challenge for cause shall  be
          determined  by the court.  The following  are
          grounds for challenge for cause:

          . . . .

          (10)  That the person is the guardian,  ward,
          landlord,    tenant,   employer,    employee,
          partner,  client, principal,  agent,  debtor,
          creditor, or member of the family of a  party
          or attorney . . . .

          . . . .

          (12)   That   the  person  has  a   financial
          interest, other than that of a taxpayer or  a
          permanent  fund  dividend  recipient  in  the
          outcome of the case.
     24    Reich v. Cominco Alaska, Inc., ____ P.3d ____, Op. No.
5637,  at 5-6 (Alaska, October 4, 2002); see also Malvo  v.  J.C.
Penney Co., 512 P.2d 575, 579 (Alaska 1973).

25   ____ P.3d ____, Op. No. 5637, at 1-2, 18.

     26   512 P.2d at 579.

     27   Slip Op. at 17.

     28   See supra note 23 and accompanying text.