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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).
