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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blood v. Kenneth Murray Insurance, Inc. (4/25/2003) sp-5685

Blood v. Kenneth Murray Insurance, Inc. (4/25/2003) sp-5685

     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
                                

JAMES D. BLOOD,               )
                              )    Supreme Court No. S-10123
             Appellant,            )
                              )    Superior Court No.
     v.                       )    4FA-99-1306 CI
                              )
KENNETH MURRAY INSURANCE,     )    O P I N I O N
INC. and PROGRESSIVE          )
INSURANCE COMPANIES, INC.,    )    [No. 5685 - April 25, 2003]
                              )
             Appellees.            )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:   Robert  John,  Law  Office  of
          Robert   John,   Fairbanks,  for   Appellant.
          Michael  C.  Kramer and Dennis C. Cook,  Cook
          Schuhmann & Groseclose, Inc., for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

           James D. Blood was injured while riding as a passenger

in   an  automobile  operated  by  an  uninsured  driver.   Blood

submitted  an  uninsured motorist/underinsured motorist  (UM/UIM)

claim,  but  his insurer denied coverage.  Blood  then  sued  the

insurer  and  insurance agent.  We consider  here  whether  Blood

waived  his  right  to  arbitrate  UM/UIM  issues  by  seeking  a

declaration  of coverage and damages in his lawsuit  against  the

insurer  and  the agent. Because we conclude that Blood  did  not

waive that right, we reverse the order dismissing his lawsuit and

remand  for further proceedings, including trial of the  coverage

dispute.

II.  FACTS AND PROCEEDINGS

           In  March  1996 James Blood purchased from Kenneth  A.

Murray  Insurance,  Inc. (KMI) an automobile liability  insurance

policy issued by Progressive Insurance Company.

           Blood  did not pay the renewal premium on his  policy,

and Progressive sent three termination-of-coverage notices to him

at  the address in Progressive's files.  Blood no longer lived at

that   address,  and  the  letters  were  returned   undelivered.

Although  Progressive mailed the notices, they were  returned  to

KMI.

           Blood  later purchased another policy from  KMI.   The

parties  dispute  whether Blood told KMI that he  had  moved  and

whether KMI should have asked Blood if he had moved.  When  Blood

failed  to  make payments on this policy, Progressive again  sent

notices  to  Blood  at  the address in its files  -  Blood's  old

address.

           On  August  2, 1997 Blood was injured in an automobile

accident  while  riding in a car driven by an  uninsured  driver.

Blood filed a claim and a demand for arbitration with Progressive

under  his  uninsured motorist coverage.  Progressive denied  the

claim;  it  asserted that Blood's policy had  lapsed  before  the

accident   because   he  had  not  paid  the   renewal   premium.

Progressive  also  denied  Blood's arbitration  request,  on  the

ground  that  arbitration only applied to liability  and  damages

issues, not coverage disputes.

           Blood  then sued Progressive and KMI for a declaration

of  coverage and an award of damages.  Blood's complaint  alleged

that  KMI  was negligent in failing to use reasonable efforts  to

obtain his "last known address," and that therefore Progressive's

attempts to cancel his policy for non-payment under AS 21.36.2201

and AS 21.36.2602 were ineffective.

           In  July 2000 Blood moved for partial summary judgment

on  the policy dispute.  The defendants moved for dismissal.  The

court  denied  both  motions  because material  factual  disputes

existed.

          A five-day trial was scheduled to begin on February 26,

2001.   During  a  hearing  to resolve pretrial  motions  on  the

morning  of the first day of the trial, Blood's counsel  informed

the  superior court and the defendants that Blood was in Florida,

and  that financial difficulties prevented him from attending the

trial in person.  Blood's counsel asked that Blood be allowed  to

testify  telephonically.  The court refused, holding that Blood's

credibility  was  critical to the case and  that  the  defendants

would  be  prejudiced if they could not test his  credibility  in

person.

            During  further  discussion  about  pretrial  issues,

Blood's  counsel commented that he only sought a  declaration  of

coverage  from the court so that he could proceed to arbitration.

The  defendants  responded that Blood had  waived  his  right  to

arbitration by filing a lawsuit requesting damages, by failing to

seek  arbitration  in  his complaint (or not  claiming  that  the

defendants wrongly denied arbitration), and by indicating  up  to

the  day  of  trial  an intention to litigate  both  damages  and

coverage issues.

           The  superior court heard more argument on this  issue

the  next  day.   The court noted that Progressive  had  rejected

Blood's  demand for arbitration in 1997.  The court also  thought

that  the  defendants were not prejudiced by Blood's  failure  to

plead arbitration, because any effort they had put into defending

a  damages  case  would be equally applicable to an  arbitration.

Nonetheless,  the court held that Blood had waived his  right  to

arbitration by failing to request it in his complaint.  The court

cited  Hillman  v.  Nationwide Mutual  Fire  Insurance  Co.3  and

International Brotherhood of Teamsters v. King4 in support of its

decision.

           In  light of its ruling that arbitration was no longer

an  available remedy, the court next held that Blood had to prove

damages  in  court.  Blood's counsel responded that he  was  "not

prepared  to present a damages case."  The court relied  on  this

concession and dismissed Blood's case, ruling that "if  he  can't

prove damages, he can't prevail."

          Blood's counsel then moved to "stay" the trial so Blood

could  testify in person and so he could amend his  complaint  to

include  arbitration. [Exc. 300 (23: 19-24)]   The  court  denied

these   motions.    Blood's   motion  for   reconsideration   was

unsuccessful. Blood appeals.

III. DISCUSSION

          A.   Blood Did Not Waive His Right to Arbitration.

                    1.   Standard of review

           Whether  a waiver occurred is a question of  fact.   A

trial  court's finding of waiver will therefore be set  aside  on

review only if it is clearly erroneous.5

                    2.   Failure to plead arbitration

                           Progressive's  insurance  policy  gave

               Blood  the  right  to arbitrate UM/UIM  disputes.6

               The  superior court ruled that Blood  waived  this

               arbitration  right  by failing  to  state  in  his

               complaint  that  he was seeking arbitration.   The

               court    based   its   ruling   on   International

               Brotherhood of Teamsters v. King7 and  Hillman  v.

               Nationwide  Mutual Fire Insurance Co.,8  which  it

               interpreted   as  holding  that  the   remedy   of

               arbitration  "was waived by virtue of the  failure

               to plead it."

                         In Teamsters, we held that the defendant

               had  waived  its  right to demand  arbitration  by

               failing   to  plead  an  affirmative  defense   of

               arbitration  as required by Alaska Rule  of  Civil

               Procedure  8(c),9 by availing itself of  discovery

               procedures  which were probably unavailable  under

               arbitration, and by delaying for over three  years

               in raising the issue of arbitration.10

                          The  superior court read  Teamsters  to

               require   Blood  to  plead  arbitration   in   his

               complaint  or waive that remedy.  In Teamsters  we

               interpreted  Rule  8(c)  to  require  a  defendant

               seeking  arbitration to raise  that  remedy  as  a

               defense in its answer if it did not want to  waive

               its  right.11  But more recently, we explained  in

               Loyal  Order  of  Moose v. International  Fidelity

               Insurance  Co. that "a demand for arbitration  [is

               not]   equivalent   to  the  affirmative   defense

               `arbitration and award.' "12

                         The superior court cited Hillman for the

               same  principle as Teamsters.  In Hillman, we held

               that the defendant insurance company did not waive

               its  right  to  arbitrate the uninsured  motorists

               claim.   We  ruled that a plaintiff who  initiates

               litigation  in violation of an arbitration  clause

               cannot later claim waiver by the defendant.13

                          The  superior court in the present case

               did  not  explain why it thought Hillman supported

               its  conclusion.  Possibly it reasoned that if the

               insureds  in  Hillman could not  claim  waiver  of

               arbitration by the defense because the  plaintiffs

               knowingly initiated litigation in violation of the

               arbitration  clause, then Blood,  the  insured  in

               this case, could not oppose waiver when he did the

               same  thing.   But  claiming and  opposing  waiver

               raise  distinct issues.  The insureds  in  Hillman

               could  not claim waiver because they had  suffered

               no   prejudice;  whether  Blood  can  successfully

               oppose  a  claim that he waived arbitration  turns

               largely  on  whether his actions in  pursuing  his

               lawsuit  unequivocally  indicated  a  purpose   to

               abandon his right to arbitrate.14

                           The  holdings in Teamsters and Hillman

               did  not require Blood to plead arbitration in his

               complaint or be deemed to have forever waived that

               remedy.   But Blood may nonetheless have impliedly

               waived his right to arbitration.

                         3.   Implied waiver of contractual right

               to arbitrate

                         The law favors arbitration.15  Waiver is

               not  to  be lightly inferred,16 and courts  should

               resolve doubts concerning whether there has been a

               waiver in favor of arbitration.17

                           Waiver   is  an  "express  or  implied

               voluntary  and  intentional  relinquishment  of  a

               known or existing right."18  Progressive does  not

               contend  that  Blood  expressly  relinquished  his

               right to arbitration.  The superior court did  not

               consider whether Blood impliedly waived his  right

               to   arbitration.   Instead,  it  determined  that

               Blood's  failure to specifically plead arbitration

               waived  that  remedy.  Because we  have  concluded

               that  Blood's failure to plead it in his complaint

               did  not  waive  the arbitration remedy,  we  must

               determine  whether  Blood  impliedly  waived   his

               arbitration rights.  We conclude that he did not.

                           We   explained  the  requirements  for

               implied waiver of contractual rights in Powers  v.

               United   Services  Automobile  Ass'n,   where   we

               observed:

          To  prove an implied waiver of a legal right,
          there  must  be  direct, unequivocal  conduct
          indicating a purpose to abandon or waive  the
          legal right . . . .  Neglect to insist upon a
          right  only  results in an  estoppel,  or  an
          implied waiver, when the neglect is such that
          it  would  convey a message to  a  reasonable
          person that the neglectful party would not in
          the   future  pursue  the  legal   right   in
          question.   Even  where  neglect  results  in
          prejudice  to another party, for  an  implied
          waiver   to  arise  there  must  be   direct,
          unequivocal conduct indicating a  purpose  to
          abandon the right.[19]
          
           Blood  argues  that rather than engaging  in  "direct,

unequivocal conduct indicating a purpose to abandon" or to  waive

his  right  to  arbitration, he consistently  sought  arbitration

before  and  during  the  litigation.   In  1997  when  he  first

submitted  his claim to Progressive, Blood made a written  demand

for  arbitration.   Progressive rejected this  demand,  asserting

that under the policy, arbitration only applied to disputes about

liability  or  damages,  not to disputes over  the  existence  of

coverage.

           Blood's  complaint did not seek arbitration  or  claim

that  Progressive  wrongly rejected his demand  for  arbitration.

Instead,  it  alleged breach of contract, bad faith, malpractice,

negligence,  and  breach  of  fiduciary  duty.   It  requested  a

"declaratory judgment stating that the Progressive policy was  in

effect"  and sought "general and special damages . . .  interest,

costs, attorney fees and other recovery as allowed by law."

           In  his memorandum accompanying his motion for partial

summary judgment on liability, Blood asked the superior court  to

rule  that  the insurance policy was in effect and to "order  the

parties  to  arbitration."  He also filed a proposed  order  that

would  have ordered the parties to arbitrate.  Eight days  before

trial was to begin, Blood filed written objections to all of  the

defendants' proposed jury instructions that framed the case as  a

personal  injury  suit.   He argued in  his  objections  that  if

coverage  exists, "this matter should be sent to  an  arbiter  to

determine  the  full amount of [Blood's] losses  as  all  parties

reasonably expected."

           Blood's preliminary witness list and his Alaska  Civil

Rule 26(a) initial disclosures both indicate that he intended  to

litigate  damages  in court.  Both documents identify  physicians

who  had  treated Blood for his injuries after the car  accident,

and  the initial disclosure list indicates that the doctors would

have information on Blood's "injuries, aftermath and prognosis."

           But even though these documents were inconsistent with

arbitrating  the  UM/UIM claim, the superior  court  record  also

contains  repeated assertions of Blood's interest in arbitration.

Neglecting  to  insist upon a right only results  in  an  implied

waiver  of that right if that neglect "convey[s] a message  to  a

reasonable  person that the neglectful party  would  not  in  the

future pursue the legal right in question."20  To the extent that

Blood's actions throughout the litigation process might have left

a reasonable person confused about his intentions, that confusion

simply confirms that there was no unequivocal waiver.  Blood  did

not  clearly  and  unequivocally abandon  his  intent  to  pursue

arbitration.

           The  defendants'  own  conduct is  consistent  with  a

conclusion  that  they did not understand that  Blood,  by  suing

them,  had  unequivocally waived his right  to  arbitrate  UM/UIM

issues,  if there was coverage.  Progressive's answer to  Blood's

initial  complaint raised arbitration as an affirmative  defense:

"In  the  event  that  this court concludes that  the  policy  in

question  remained  in  force on the  date  of  the  accident  in

question,   plaintiff's  claim  is  subject  to  the  arbitration

provision  of  the  policy  and  plaintiff's  claims  should   be

dismissed  in  favor  of arbitration."  And  defendants  did  not

pursue   the  damages  aspect  of  the  case  extensively  during

discovery.   They  did  not depose any damage-related  witnesses,

they  did  not  seek a physical exam of Blood under Alaska  Civil

Rule  35, and their witness lists did not name any damage-related

witnesses.   Motion  practice  centered  on  what  both   parties

conceded  was the main issue in the lawsuit - whether KMI  should

have  learned  of  Blood's new address.  The  defendants  devoted

little attention to the liability and damages issues.

           Because Blood sued not only Progressive, but also KMI,

his   damages  claims  do  not  compel  a  finding  that  he  was

unequivocally   waiving  arbitration.   Had   Blood   sued   only

Progressive, his efforts to litigate liability and damages issues

might   have  implied  that  he  was  no  longer  interested   in

arbitrating those issues if the court found coverage.  But  Blood

was  also pursuing KMI on the independent theory that it breached

the duties that an insurance agent owes the insured.  As to these

claims,  it is not obvious that Blood (or KMI) had any  right  to

arbitration.   Normally, someone in Blood's position,  suing  the

agent  on  a  theory  it negligently failed to  secure  uninsured

motorist  coverage,  would  have  to  prove  at  trial  both  the

existence  of the insurance producer's breach of duties  owed  to

the  would-be insured and the damages the breach caused  -  i.e.,

the  amount recoverable had the coverage been in place.  To prove

the latter, he would have to prove the uninsured motorist's fault

and   the  damages  that  fault  caused.   Therefore  it  is  not

unexpected  that Blood took steps to prove liability and  damages

at  trial in the context of his claim against KMI.  The existence

of the KMI claim consequently weighs against finding that Blood's

lawsuit established an unequivocal waiver of a right to arbitrate

liability and damages in his claim against Progressive.

          We conclude that it was error to find that Blood waived

his right to seek arbitration.

           It  follows that it was also error to dismiss  Blood's

case  based on Blood's professed inability to present damages  at

the  scheduled  trial.  Because any inability  to  prove  damages

would  have had no bearing on the narrow coverage issue and would

not obviate the need to try the coverage issue, and because Blood

claimed  he  could try the coverage issue without  testifying  at

trial,  it  was  error  not to conduct a  trial  to  resolve  the

coverage  issue.  We therefore remand for further proceedings  to

resolve the coverage dispute.

           Our  conclusion that Blood did not waive his right  to

arbitration  moots  issues arising out  of  Blood's  unsuccessful

requests for a continuance and for leave to amend his complaint.

          B.    Blood's Trial Theory Will Control Whether He  May
          Testify Telephonically.
          
           The  superior court refused to allow Blood to  testify

telephonically.   The  court ruled that Blood's  credibility  was

"so critical" that the defendants had to have the opportunity  to

cross-examine him in person before the jury.

           Blood's credibility is  highly pertinent to the issues

of  liability  and damages which will now be set for arbitration.

Our  ruling  today makes it unnecessary to decide  whether  those

rulings are error.

           It is conceivable that on remand the issue of coverage

will  not  turn  on  Blood's credibility.  If it  does  not,  the

dispute  about  whether  he  can testify  by  telephone  will  be

immaterial.   If  Blood's  testimony is relevant,  trial  of  the

coverage issue must be scheduled at a time Blood is prospectively

available  to  testify in person.  If that is not  possible,  the

court  shall  provide Blood a fair opportunity  to  preserve  his

testimony, such as by videotaped deposition, upon adequate notice

to opposing counsel.

           We  cannot foresee whether Blood's testimony  will  be

relevant  to the coverage issue.  The relevance of his  testimony

depends on precisely what issues control the coverage dispute  on

remand.

          C.     The   Superior  Court  Properly  Denied  Summary

          Judgment.

                    1.   Standard of review

           We  review  a denial of summary judgment  de  novo  to

determine  whether any genuine issues of material fact exist  and

whether  the moving party is entitled to judgment as a matter  of

law  on  the established facts.21  "All reasonable inferences  of

fact  from  proffered materials must be drawn against the  moving

party and in favor of the non-moving party."22

                      2.   The  superior  court  properly  denied
               Blood's summary judgment motion against KMI.
               
           Blood  argues that he was entitled to summary judgment

because KMI had a duty to ask him for his new address in light of

the  three pieces of returned mail it had in its files when Blood

obtained the second policy.

           Blood  relies on either AS 21.36.220 or AS  21.36.240,

and AS 21.36.260 to support his argument.  Section .220 imposes a

duty  on  an insurance company to notify a policyholder  about  a

cancellation of an existing policy.23  Section .240  imposes  the

same duty for failure to renew a policy.24  Both statutes refer to

AS  21.36.260, which states that "if a notice is required from an

insurer  .  .  . the insurer shall (1) mail the notice  by  first

class mail to the last known address of the insured . . . ."

          Blood relies on Jefferson v. Alaska 100 Insurance, Inc.25

in  arguing  that  an  insurance agent has a  "duty  to  exercise

reasonable care, skill, and diligence . . . to inform the insured

of termination of coverage."

          Blood also relies on Rosenberg v. Smidt26 in contending

that the defendants have a duty to use due diligence to determine

a  party's  "last known address."  In Rosenberg, we analyzed  the

phrase  "last known address" in a different context but concluded

"that the last known address is that address most likely to  give

the  affected party notice. The trustee is obligated to  exercise

due diligence to determine that address . . . ."27

           Even if Blood is correct that KMI and Progressive owed

him   such  a  duty,  there  remains  the  question  whether  the

defendants  exercised  due  diligence.   As  the  superior  court

correctly noted:

          Even  if  every single detail  of  what  took
          place  there is stipulated, which  it's  not,
          but  even supposing it were, [the] finder  of
          fact  still  has to determine  whether  [KMI]
          breached a duty it owed and whether [KMI] was
          negligent.   That  in  itself   is   a   fact
          question,  not in the sense of what happened,
          but  in  the  sense of what is  traditionally
          determined by a trier of fact.[28]
          
           Assuming a jury could find that KMI was negligent  for

failing  to  ask for Blood's new address, we cannot hold  that  a

jury could only reach this result.

           Lastly,  Blood  argues that he should receive  summary

judgment on a theory of promissory estoppel.  He argues  that  he

relied on KMI's insurance expertise and that "it is reasonable to

expect  that  when  he gave KMI his [new] address,  that  address

would  be  the  one  at  which  Progressive  would  contact   him

concerning  his policy."  This argument is without merit  because

there  is  a  genuine  dispute whether Blood  gave  KMI  his  new

address.  The superior court properly denied summary judgment  to

Blood on the coverage issue.

IV.  CONCLUSION

           We therefore AFFIRM the denial of summary judgment  to

Blood,  but REVERSE the decision that Blood waived his  right  to

arbitration,  REVERSE the dismissal of Blood's case,  and  REMAND

for further proceedings, including trial on the coverage issue.

_______________________________
1    AS 21.36.220 requires an insurance company to mail notice of
cancellation to the insured before it cancels a policy.
2     AS  21.36.260 requires the insurance company to  "mail  the
notice . . . to the last known address of the insured."
3    758 P.2d 1248, 1253 (Alaska 1988).
4    572 P.2d 1168, 1173-75 (Alaska 1977).
5    Miscovich v. Tryck, 875 P.2d 1293, 1302 (Alaska 1994).
6    The UM/UIM portion of the policy states in pertinent part:

                Determination  of  whether  an  insured
          person is legally entitled to recover damages
          and  the  amount of damages will be  made  by
          agreement between the insured person and  us.
          If  no agreement is reached, the decision may
          be  made  by arbitration if we or the insured
          person  make a written demand for arbitration
          . . . .
          
7    572 P.2d 1168 (Alaska 1977).
8    758 P.2d 1248 (Alaska 1988).
9     Alaska  Civil  Rule  8(c)  provides:   "In  pleading  to  a
preceding pleading, a party shall set forth affirmatively .  .  .
arbitration and award . . . ."
10    572 P.2d at 1174.
11    Id. at 1173.
12     797  P.2d 622, 629 n.16 (Alaska 1990); see also Victor  v.
State  Farm Fire & Cas. Co., 795 F. Supp. 300, 304 n.6 (D. Alaska
1992)  (observing that identical Federal Rule of Civil  Procedure
8(c)  "is  limited to the situation where a dispute  has  already
been arbitrated and an award has been obtained, not to situations
where arbitration has not yet taken place").
13    758 P.2d at 1253.
14    See Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 588 (Alaska
1993).
15     Bd.  of Educ., Fairbanks North Star Borough Sch. Dist.  v.
Ewig,  609  P.2d  10,  13  (Alaska 1980) (affirming  decision  of
arbitrator); Int'l Bhd. of Teamsters v. King, 572 P.2d 1168, 1173
(Alaska 1977).
16     Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80,  83
(2d  Cir.  1998) (holding waiver occurred despite general  policy
favoring arbitration).
17    See Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 130 (2d
Cir.  1997)  (ruling  no waiver of right to  compel  arbitration)
(citing  Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,  460
U.S. 1, 24 (1983)).
18     Powers  v. United Servs. Auto. Ass'n, 6 P.3d  294,  298-99
(Alaska  2000)  (holding  no  waiver absent  direct,  unequivocal
conduct indicating purpose to abandon right to arbitration).
19    Id. at 299.
20    Airoulofski v. State, 922 P.2d 889, 894 (Alaska 1996).
21     Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130,  1134
(Alaska 1996).
22    Id.
23    AS 21.36.220 provides in pertinent part:

          (a)  An insurer may not exercise its right to
          cancel  a  personal insurance policy  unless,
          for a named insured who is
          (1)   less  than 70 years of age,  a  written
          notice of cancellation is mailed to the named
          insured as required by AS 21.36.260 at  least
          30   days   before  the  effective  date   of
          cancellation; however, if cancellation is for
          nonpayment  of premium, the notice  shall  be
          mailed to the named insured as required by AS
          21.36.260   at  least  20  days  before   the
          effective date of cancellation . . . .
24    AS 21.36.240 provides in pertinent part: "An insurer may not
fail  to renew a policy unless a written notice of nonrenewal  is
mailed to the named insured as required by AS 21.36.260 at  least
20 days for a personal insurance policy . . . ."
25     Jefferson  v.  Alaska 100 Ins., Inc., 717  P.2d  360,  364
(Alaska 1986).
26    727 P.2d 778 (Alaska 1986).
27    Id. at 783.
28    See Beaux v. Jacob, 30 P.3d 90, 96 n.5 (Alaska 2001) (noting
that "[w]hether particular conduct is negligent is a question  of
fact  normally  reserved  for  the  trier  of  fact");  Dobos  v.
Ingersoll,  9  P.3d  1020, 1026 (Alaska  2000)  (explaining  that
"whether  [a party] was negligent was a question of fact properly
determined by the jury").