Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doxsee v. Doxsee (11/21/2003) sp-5754

Doxsee v. Doxsee (11/21/2003) sp-5754

     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


AUTUMN DOXSEE,           )
                              )    Supreme Court No. S-10424
               Appellant,          )
                              )    Superior Court No.
          v.                  )    3KN-98-183 CI
                              )
ADRIAN DOXSEE and             )    O P I N I O N
PROGRESSIVE INSURANCE CO.,    )
                              )    [No. 5754 - November 21, 2003]
               Appellees.          )
                                                                )


          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:  Michael W. Flanigan, Walther  &
          Flanigan, Anchorage, for Appellant.   Michael
          P.  McConahy, McConahy, Zimmerman &  Wallace,
          Fairbanks, for Appellee Progressive Insurance
          Company.

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

          BRYNER, Justice.

I.   INTRODUCTION

           Autumn  Doxsee sued her husband, Adrian,1 for injuries

she  sustained as a passenger in his vehicle.  Adrian's insurance

company  provided him with an independent attorney  to  represent

his  interests and retained separate counsel to defend the  case.

A  jury  returned an award substantially lower than the defense's

offer of judgment, and the trial court awarded attorney's fees to

the  defense  as the prevailing party.  Doxsee appeals,  claiming

that  the  trial court's jury instructions were insufficient  and

that the court abused its discretion in denying her motion for  a

new  trial and in awarding attorney's fees for both the  attorney

who defended the case and her husband's independent attorney.  We

affirm.

II.  FACTS AND PROCEEDINGS

           In July 1996 Autumn Doxsee had cervical fusion surgery

to  alleviate  her chronic neck pain.  Thirteen  days  later,  in

early August 1996, Doxsee and her husband, Adrian, were traveling

to  a  doctor's  appointment in Kenai when Adrian rear-ended  the

vehicle  in  front of them.  Doxsee was wearing a neck  brace  to

prevent motion.

           An  ambulance took Doxsee to the emergency room, where

Dr.   Stephen   Hileman  examined  her.   Doxsee  complained   of

generalized  pain in her neck, but her examinations  were  normal

considering  her recent surgery.  Dr. Hileman took  an  x-ray  to

look  for injury to her neck and did not find any.  According  to

Dr. Hileman, Doxsee told him that her pain had not worsened after

the  accident.  Dr. Hileman gave Doxsee some pain medication  and

sent her home.

           Doxsee  saw  a  doctor  in Kenai  the  following  day,

complaining of leg, arm, neck, and back pain.  A week or so later

she  consulted  Dr.  David Spindle, who had  performed  her  neck

fusion  surgery.   Dr. Spindle thought that the  accident  was  a

minor incident and that she was recovering well from the surgery.

He released her from his care in October 1996.

           However,  Doxsee's  physical pain continued,  and  she

began to have weakness in her grip.  She returned to Dr. Spindle,

who took x-rays and an MRI that revealed that one of the two bone

grafts in her neck had not fused.  Dr. Spindle performed a second

neck  fusion surgery in March 1997.  Doxsee's total medical costs

at  the  Alaska  Native  Medical Center  after  the  August  1996

accident  were $10,136.  She has had difficulty swallowing  as  a

complication of the second surgery.

           Meanwhile,  Doxsee  had sued Adrian's  ex-wife,  Wanda

Delane,  for  injuries that Doxsee sustained in an auto  accident

with  Delane  in  1994.  As part of her alleged damages  in  that

suit,  Doxsee  claimed  the expenses of  her  first  neck  fusion

surgery in July 1996.  Doxsee's suit against Delane was tried  in

December 1997.  The jury awarded no damages.

           In  March  1998  Doxsee  sued Adrian  for  negligently

injuring  her  in  the August 1996 accident - the  accident  that

occurred  thirteen days after Doxsee's first neck fusion surgery.

Doxsee  sought  past  and future medical expenses  and  past  and

future non-economic damages.

            Adrian's  insurer,  Progressive  Insurance   Company,

retained  an  attorney to represent Adrian  in  this  litigation.

Adrian  and his insurance-appointed attorney, Robert L.  Griffin,

filed  a "Motion . . . to Define his Counsel's Status and  Role."

Griffin  asserted  that  Adrian had  an  interest  in  maximizing

Doxsee's  recovery and that Progressive's interest  in  defending

the  claim  conflicted  with Adrian's  instructions  to  Griffin.

Griffin  asked  the  court  to  decide  whether  he  should  take

direction from Adrian or from Progressive, arguing that the court

should  require  Progressive to appoint  independent  counsel  to

represent Adrian's interests under this court's decision in Myers

v.  Robertson.2  Doxsee filed a limited opposition  to  Griffin's

motion,  correcting some of the asserted facts but agreeing  that

Myers  required  Adrian  to  be  represented  by  an  independent

counsel.  The court ruled that Adrian was entitled to independent

counsel  at  Progressive's expense, that the independent  counsel

was  not required to report to Progressive "except to the  extent

required  by AS 21.89.100(e) and (g),"3 and that Progressive  was

entitled  to  retain  separate  counsel  to  represent  its   own

interests by presenting a "classic" defense.

          Griffin continued as Adrian's independent attorney, and

Progressive   retained  separate  counsel  to  present   Adrian's

"classic"  defense.  After being designated Adrian's  independent

counsel, Griffin played a background role in the litigation,  and

Progressive's new attorney took charge of the defense.

           In  January 2000 the defense made an offer of judgment

for $12,500 plus prejudgment interest, attorney's fees and costs,

and  waiver of a lien for medical payments of $1,083.71.   Doxsee

rejected the offer.

           Adrian  admitted negligence before  trial.   The  case

proceeded  to a jury trial on causation and damages  in  February

2001.    Adrian's  independent  attorney,  Griffin,  participated

minimally in the trial.

           Doxsee  called Dr. Spindle to testify  at  trial.   He

testified  that he believed the August 1996 accident  had  caused

Doxsee's  first  neck fusion to fail, creating  a  need  for  the

second  surgery.  The defense introduced expert testimony by  Dr.

John Ballard, who had performed an independent medical evaluation

based on Doxsee's medical records and concluded that the accident

did not cause the first surgery to fail.

           At  the  end of the trial, the jury returned a verdict

finding  Adrian  liable for Doxsee's injury but awarding  damages

totaling  only $9,358.  After the superior court denied  Doxsee's

motions  for  additur or a new trial, Progressive  moved  for  an

award  of  attorney's fees and costs under Alaska Civil Rule  68,

alleging that its pretrial offer of judgment exceeded the  jury's

verdict.    In   advancing   this  motion,   Progressive   sought

reimbursement for fees it had paid to its own counsel, Michael P.

McConahy,  and  to  Adrian's independent counsel,  Griffin.   The

superior  court granted Progressive's motion and entered judgment

for  the  defense  in the amount of $24,763.53 after  subtracting

Doxsee's jury award.

          Doxsee appeals.

III. DISCUSSION

     A.   Jury Instruction
          
           Doxsee  first argues that the trial court  erroneously

failed to instruct the jury on the standard of proof that applies

when the plaintiff claims aggravation of a pre-existing injury.4

          The trial court instructed the jury according to Alaska

Pattern Civil Jury Instruction 20.11, which addresses aggravation

of a pre-existing injury.5  We approved a substantially identical

instruction in LaMoureaux v. Totem Ocean Trailer Express, Inc.6

           Doxsee  proposed  an additional jury instruction  that

would have addressed her burden of proof more specifically.   Our

case law establishes that when it is "difficult to determine  how

much  of a plaintiff's injury is due to the preexisting condition

and  how  much  to  the aggravation caused by the  defendant,"  a

plaintiff  seeking to establish causation need not "prov[e]  with

great exactitude the amount of aggravation."7

            Focusing  on  this  case  law,  Doxsee  proposed  the

following jury instruction:

                In calculating the amount of damages to
          be  awarded  for the aggravation  of  a  pre-
          existing  injury  or  condition,  you  should
          attempt to reasonably estimate the amount  of
          damages  that reflects the additional damages
          plaintiff  suffers  beyond  her  pre-existing
          injury  or  condition, based on the  evidence
          presented  to  you  even if  such  an  amount
          cannot  be fixed with mathematical precision.
          Due  to  the  difficulty in  determining  the
          amount   of   damages  to   be   awarded   in
          aggravation type cases, the Plaintiff is  not
          required  to  prove  a  specific  amount   of
          damages in order to recover an award in  such
          a case.
          
           Doxsee  argues that the trial court erred in rejecting

this  proposed  instruction.   She  contends  that  the  proposed

instruction  was  required under our decision  in  Tolan  v.  ERA

Helicopters, Inc.8  But Doxsee's reliance on Tolan is  misplaced.

The  trial court in Tolan inserted additional language  into  the

pattern   jury  instruction  on  aggravation  -  the  instruction

actually given here -  providing that "[i]t is necessary for  the

plaintiffs  to prove . . . that it is more likely than  not  that

[plaintiff's]  pre-existing  condition  or  disability  has  been

aggravated by the defendant's conduct and the extent to which  it

has   been  aggravated."9   We  disapproved  of  this  additional

language in Tolan, noting that, in context, its emphasis  on  the

plaintiff's  general  burden  of  proof  by  a  preponderance  of

evidence would have been inappropriate "without qualification  as

to   the   relaxed  requirement  of  proof  on  [the   issue   of

aggravation]."10

           Thus,  far  from modifying the pattern instruction  we

approved  in LaMoureaux, Tolan simply pointed out the hazards  of

adding   to  the  pattern  instruction.   Tolan  thus  implicitly

recognized  the pattern instruction to be a sufficient  statement

of  the  law  relating  to aggravation of a pre-existing  injury.

Since  Tolan, we have explicitly reiterated our approval  of  the

pattern  instruction's language in Glamann v. Kirk.11  Thus,  the

instruction  that  was  given to the jury  correctly  stated  the

applicable law.

           Moreover,  Doxsee  has failed to  establish  that  her

proposed instruction would have had any appreciable effect on the

jury's  verdict.   By its own language, the proposed  instruction

described  how the jury should "estimate the amount  of  damages"

Doxsee  suffered,  not how it should determine  whether  Adrian's

negligence  caused a particular item of damages.  Yet  as  Doxsee

acknowledges  on  appeal,  the jury's minimal  verdict  evidently

reflects its belief that the accident did not cause the need  for

the second surgery.  Hence, the jury apparently never reached the

issue  of  estimating the amount of damages attributable  to  the

second  surgery  -  the issue that Doxsee's proposed  instruction

would  have  addressed.12  In summary, the superior court's  jury

instruction  on  causation was legally sufficient,  and  Doxsee's

proposed  instruction  would have had no  likely  effect  on  the

jury's verdict, even if the instruction had been given.

     B.   Additur or New Trial

           Doxsee  next  argues  that the trial  court  erred  in

rejecting her alternative post-trial motions for additur or a new

trial.   In these motions, Doxsee argued that, under the  factors

set  out in the United States Supreme Court's decision in Daubert

v.  Merrell Dow Pharmaceuticals, Inc.13 and adopted by this court

in  State  v.  Coon,14 the superior court erred in admitting  the

testimony   of   Progressive's  expert,  Dr.   Ballard.    Doxsee

additionally  pointed  to  three  occasions  when,  according  to

Doxsee,  the  court admitted evidence that was  more  prejudicial

than probative, in violation of Alaska Evidence Rule 403.  Doxsee

contended that the combined effect of these errors and the jury's

allegedly unreasonable verdict entitled her to additional damages

of  $21,766  ($10,136  for the cost of  her  second  surgery  and

$11,630 for pain and suffering) or, in the alternative, to a  new

trial.   The superior court denied Doxsee's motions.  On  appeal,

Doxsee  argues that in light of all the errors she  has  claimed,

the  evidence  was "so slight and unconvincing  as  to  make  the

verdict unreasonable and unjust."15

            Doxsee's  argument  is  premised  on  her  claims  of

evidentiary  error.   But  Doxsee waived  her  claim  as  to  Dr.

Ballard's  expert  testimony by agreeing not  to  object  to  its

admission if Dr. Ballard would "restrain his testimony to  review

of the medical evidence without relying on any opinions as to the

`force of the collision.' "  When Dr. Ballard testified at trial,

Doxsee's  counsel  stated  that he had  "no  objection."   Having

agreed to Dr. Ballard's testimony, Doxsee cannot now assert  that

its  admission  was error justifying additur or  a  new  trial.16

Doxsee  additionally argues that because she did not  know  about

Dr.  Ballard's  alleged lack of qualifications until  trial,  her

failure to bring a pre-trial Daubert challenge does not amount to

a  waiver  of  her objection to his testimony.  She  attempts  to

support this argument by citing Licciardi v. TIG Insurance Group,

140  F.3d  357 (1st Cir. 1998).  But Licciardi vacated a  defense

verdict  where the defense expert's trial testimony  contradicted

and  went  beyond  the  scope of the  report  the  plaintiff  had

received  before  the  trial.  Id.  at  359.   Here,  Doxsee  has

admitted  that "Dr. Ballard's opinion at trial was essentially  a

verbatim  restatement"  of his expert  report.   And  unlike  the

plaintiff  in  Licciardi, Doxsee did not object to Dr.  Ballard's

expert testimony at any point during the trial.  See id. at 359.

           Doxsee's remaining claims are based on three instances

when the superior court admitted evidence that Doxsee claims  was

"highly  prejudicial."17   First, the  trial  court  allowed  the

defense  to  question  Doxsee about cursing  at  the  driver  who

collided with Adrian in the accident.  Second, the court  allowed

the  defense to question Doxsee about her earlier lawsuit against

Adrian's  ex-wife, Wanda Delane.  And finally, the court  allowed

the  defense to question Dr. Spindle about his use of a  surgical

tool  in  the  course  of Doxsee's second  surgery  that  he  had

constructed from the camshaft of a Chevrolet.

           But  Doxsee's  argument  improperly  assumes  its  own

premise  - that the trial court erred in admitting this evidence.

Doxsee  has  not  challenged the court's evidentiary  rulings  in

independent points on appeal.  In connection with her additur/new-

trial  claim,  she advances conclusory assertions concerning  the

prejudicial  impact  of  the  disputed  evidence  but  offers  no

discussion  of  its potential probative value and sets  forth  no

meaningful  legal analysis to establish that the court  erred  in

its evidentiary rulings.  Our own review of the record reveals no

abuse  of  discretion.  Accordingly, we find no merit in Doxsee's

allegations  that evidentiary error required the trial  court  to

grant her motion for additur or a new trial.

          C.   Attorney's Fees

           The  superior  court  found that Progressive  was  the

prevailing  party  under  Civil Rule  68  because  its  offer  of

judgment,  which  Doxsee rejected, exceeded the jury's  award  by

more than five percent.18  The court therefore awarded attorney's

fees  to  Progressive  for fees that it  paid  to  both  its  own

counsel,  McConahy, and to Adrian's independent counsel, Griffin.

Doxsee  argues  that  the award of fees  for  work  performed  by

Progressive's counsel following Griffin's appointment as Adrian's

independent attorney amounted to error.19

           But  under the specific facts presented here, we  find

Doxsee's  argument unpersuasive.  In response  to  Adrian's  pre-

trial  motion  to  define  his counsel's role,  Doxsee  expressly

indicated  that she did not oppose an order requiring Progressive

to   retain   an  independent  attorney  to  represent   Adrian's

interests.   In  fact,  she actively advocated  the  appointment,

relying  on  Myers  and  CHI of Alaska v.  Employers  Reinsurance

Corp.,20 by arguing that

          Plaintiffs  believe this [is] a Myers[]  case
          and   that   independent   CHI   counsel   is
          appropriate.  .  .  .  [I]t  is  respectfully
          requested that this honorable court enter  an
          order holding that this is a Myers type  case
          and  that  Mr.  Griffin  is  independent  CHI
          counsel  with  no  duty  to  report  to   the
          insurance company, nor any duty to present  a
          classic defense.
          
After   Griffin  undertook  the  role  of  Adrian's   independent

attorney, Progressive's new attorney took control of the case and

tried it to completion, with Griffin playing only a minor role.

          On appeal, Doxsee does not challenge the reasonableness

of  any of the legal billings paid by Progressive.  Nor does  she

contend that there was double billing or unnecessary work in  the

course  of  the dual representation.21  Without citation  to  any

persuasive  authority, Doxsee simply reasons  that,  because  she

sued  Adrian  rather than Progressive, she should  only  be  held

accountable  for fees incurred by Adrian's independent  attorney.

Because Doxsee's argument is fundamentally inconsistent with  her

position below that dual representation was warranted in  defense

of her claim, we reject the argument as unpersuasive.

IV.  CONCLUSION

           We  AFFIRM the superior court's jury instructions, its

denial  of  Doxsee's motion for additur or a new trial,  and  its

attorney's fees award.

_______________________________
1Although Autumn and Adrian apparently were not formally married,
their  common-law marriage was treated as a spousal  relationship
throughout the course of these proceedings.
2891 P.2d 199 (Alaska 1995).
3AS 21.89.100(e) and (g) provide:

          (e)    If  the  insured  selects  independent
          counsel   at   the  insurer's  expense,   the
          independent  counsel and  the  insured  shall
          consult  with  the  insurer  on  all  matters
          relating  to  the  civil  action  and   shall
          disclose  to  the insurer in a timely  manner
          all information relevant to the civil action,
          except  information that  is  privileged  and
          relevant to disputed coverage. . . .
          
          . . . .

          (g)    If   an  insured  selects  independent
          counsel  under this section, both the counsel
          representing  the  insurer  and   independent
          counsel  representing the  insured  shall  be
          allowed to participate in all aspects of  the
          civil  action.  Counsel for the  insurer  and
          insured  shall cooperate fully in  exchanging
          information  that is consistent with  ethical
          and   legal   obligations  to  the   insured.
          Nothing  in this section relieves the insured
          of  the  duty  to  cooperate fully  with  the
          insurer  as  required by  the  terms  of  the
          insurance policy.
          
4We  review jury instructions de novo.  Glamann v. Kirk, 29  P.3d
255,  259  (Alaska  2001).  "In reviewing jury instructions,  the
relevant inquiry is whether the instructions inform the  jury  of
the  applicable law."  Lynden, Inc. v. Walker, 30 P.3d  609,  617
(Alaska 2001).
5Jury Instruction 20 provided:

                 A   person  who  has  a  condition  or
          disability  at  the time of an injury  cannot
          recover   damages  for  that   condition   or
          disability.   However,  she  is  entitled  to
          recover  damages for an aggravation  of  such
          pre-existing condition or disability  if  the
          aggravation  is  the  legal  result  of   the
          injury.
          
                This  is  true  even  if  the  person's
          condition   or  disability  made   her   more
          susceptible to the possibility of ill effects
          than  a  normally healthy person  would  have
          been,  and even if a normally healthy  person
          probably   would   not  have   suffered   any
          substantial injury.  In other words, the  law
          provides that a defendant takes the plaintiff
          as he finds her.
          
                 Where  a  pre-existing  condition   or
          disability  is so aggravated, the damages  as
          to  such  condition or disability are limited
          to  the  additional  damages  caused  by  the
          aggravation.
          
6632 P.2d 539, 543-45 (Alaska 1981).
7Id. at 544.
8699 P.2d 1265 (Alaska 1985).
9Id. at 1271.
10Id. at 1272.
1129 P.3d 255, 261 (Alaska 2001).
12Notably, our case law distinguishes between the burdens of proof
that govern causation of aggravated injury and estimation of  the
amount of damages.  In Pluid v. B.K., 948 P.2d 981 (Alaska 1997),
on  which Doxsee based her proposed instruction, we described the
burden  that  attaches with respect to the value of damages  once
causation  of damages is proved.  Id. at 984.   In contrast,  the
LaMoureaux,  Tolan,  and  Glamann line  of  cases  addresses  the
relaxed  standard of proof that governs on proving  causation  of
aggravated injury.
13509 U.S. 579, 592-94 (1993).
14974 P.2d 386, 395 (Alaska 1999).
15Hutchins  v. Schwartz, 724 P.2d 1194, 1199 (Alaska 1986).   "In
reviewing a ruling on a motion for new trial, this court will not
interfere  with  the trial court's decision except  in  the  most
exceptional  circumstances  and  to  prevent  a  miscarriage   of
justice."  Id.  "The trial court has broad discretion in deciding
whether  to  grant or deny a motion for a new trial."   Cizek  v.
Concerned Citizens of Eagle River Valley, Inc., 49 P.3d 228,  234
n.23  (Alaska 2002).  We will affirm a trial court's decision  to
deny  a  new  trial  unless  the  evidence  is  "so  slight   and
unconvincing  as  to make the verdict unreasonable  and  unjust."
Hutchins, 724 P.2d at 1199.
16See  Walden v. Dep't of Transp., 27 P.3d 297, 304 (Alaska 2001)
("It is well-settled that a party must object to evidence at  the
time it is offered in order to preserve the issue on appeal.").

17Alaska Evidence Rule 403 provides:

                 Although  relevant,  evidence  may  be
          excluded if its probative value is outweighed
          by  the danger of unfair prejudice, confusion
          of  the issues, or misleading the jury, or by
          considerations of undue delay, waste of time,
          or   needless   presentation  of   cumulative
          evidence.
          
18Alaska Civil Rule 68 provides, in relevant part:

                (a)   At  any  time more than  10  days
          before  the  trial begins, either  the  party
          making a claim or the party defending against
          a  claim may serve upon the adverse party  an
          offer  to  allow judgment to  be  entered  in
          complete  satisfaction of the claim  for  the
          money  or property or to the effect specified
          in the offer, with costs then accrued. . . .
          
               (b)  If the judgment finally rendered by
          the   court  is  at  least  5  percent   less
          favorable to the offeree than the offer,  or,
          if there are multiple defendants, at least 10
          percent  less  favorable to the offeree  than
          the  offer,  the offeree, whether  the  party
          making  the  claim or defending  against  the
          claim,  shall pay all costs as allowed  under
          the  Civil  Rules  and shall  pay  reasonable
          actual  attorney fees incurred by the offeror
          from the date the offer was made . . . .
          
19We review a trial court's award of attorney's fees for abuse of
discretion.  United Servs. Auto. Ass'n v. Pruitt ex rel.  Pruitt,
38  P.3d  528, 531 (Alaska 2001).  We will not overturn  a  trial
court's determination of attorney's fees unless it is "manifestly
unreasonable."  D.H. Blattner & Sons, Inc. v. N.M.  Rothschild  &
Sons, Ltd., 55 P.3d 37, 56 (Alaska 2002).
20844  P.2d  1113 (Alaska 1993) (holding insured  has  unilateral
right  to select independent counsel, subject to implied covenant
of good faith and fair dealing).
21Had Doxsee believed there was duplication of effort in the roles
of  the  two defense counsel, she could have been entitled  to  a
reduction in fees under Alaska Civil Rule 82(b)(3)(C),  (D),  and
(E).