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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cummins, Inc. v. Nelson (06/24/2005) sp-5917

Cummins, Inc. v. Nelson (06/24/2005) sp-5917

     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


CUMMINS, INC. and             		)
CUMMINS NORTHWEST, INC., 	)    Supreme Court Nos. S-11172/11201
                              			)
     Appellants/Cross-Appellees,   		)    Superior Court No. 1JU-01-1386 CI
                              			)
     v.                       			)    O P I N I O N
                              			)
NORVAL  NELSON,  JR., individually   	)    [No. 5917  -  June  24,2005]
and BARBARA CADIENTE-         	)
NELSON, individually; NORVAL  	)
NELSON, JR. and BARBARA       	)
CADIENTE-NELSON d/b/a         		)
F/V ALEUT PRINCESS,           		)
                              			)
     Appellees/Cross-Appellants.   		)
                              			)

                              

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry R. Weeks, Judge.

          Appearances:   Larry  G.  Berry,   Robertson,
          Monagle  & Eastaugh, Anchorage, and James  D.
          Dasso  and Therese C. King, Foley &  Lardner,
          Chicago,   Illinois,  for   Appellants/Cross-
          Appellees.  Michael L. Lessmeier, and Sheldon
          E.  Winters, Lessmeier & Winters, Juneau, for
          Appellees/Cross-Appellants.

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

          EASTAUGH, Justice.
I.   INTRODUCTION

          The  Nelsons fishing boat caught fire, burned, and sank

soon after Piston and Rudder Corporation (P&R) renovated it.  The

renovations,  called  a  repower,  included  installation  of   a

Cummins,  Inc.  marine engine.  The Nelsons  sued  P&R,  Cummins,

Inc.,  and  Cummins Northwest, Inc.  A jury found that P&R  acted

negligently and that the Cummins defendants cloaked P&R with  the

authority to act on their behalf by directing the Nelsons to  P&R

and  assuring  them  that P&R could repower  their  vessel.   The

Cummins defendants appeal.  We affirm.  We conclude that (1)  the

evidence  adequately supports the jurys negligence and  vicarious

liability  findings; (2) the special verdict  form  appropriately

paraphrased the jury instructions; (3) any potentially  erroneous

jury  instruction  that  did  not  influence  the  negligence  or

vicarious  liability findings was not prejudicial;  and  (4)  any

potentially  erroneous denial of a directed  verdict  motion  was

harmless.

II.  FACTS AND PROCEEDINGS

     A.   The Repowering of the Aleut Princess and the Fire

          Norval  and  Barbara Nelson own and operate  a  fishing

business  based  out of Juneau.1  The F/V Aleut  Princess  was  a

seventy-eight-foot  wooden boat and one of their  two  commercial

fishing  vessels.  Cummins, Inc. manufactures marine engines  and

Cummins  Northwest is a distributor for Cummins, Inc.s  products.

We  refer to Cummins, Inc. and Cummins Northwest collectively  as

Cummins except when context requires specificity.

          In  July  2000  the Aleut Princess suffered  an  engine

breakdown  in  the  Lynn Canal area between  Haines  and  Juneau.

Norval  Nelson  chose  to  replace  the  main  engine  with   one

manufactured by Cummins, Inc. because he had a Cummins engine  in

his  other vessel and liked its performance.  He called his  wife

and  asked  her to look for a Cummins ad he had seen in  a  trade

magazine.   Barbara Nelson gave her husband the Cummins Northwest

telephone  number  she  found  in  an  advertisement  in  Pacific

Fishing.   Norval  Nelson  testified  that  he   called   Cummins

Northwest,  explained to its representative  that  he  wanted  to

repower  his  boat, and was told I sure can help  you  out.2   He

testified  that  the  Cummins Northwest representative  told  him

          Petersburgs where you want to go and we can fix you up there.

Norval  Nelson  also testified that he was told  by  the  Cummins

Northwest representative that Piston and Rudder, a marine  repair

shop  in Petersburg, could put in the engine there for [him]  and

take  care  of [him] and get [him] back on the road.  P&R  is  an

authorized dealer for Cummins Northwest.

          Norval  Nelson  testified that  the  Cummins  Northwest

representative gave him the phone number for P&R.   He  testified

that he had never heard of P&R before this conversation, that  he

called P&R and spoke with Mike Luhr, P&Rs owner, about repowering

the   Aleut   Princess,  and  that  he  gave   Luhr   the   boats

specifications.  Barbara Nelson testified that Luhr told her that

he  had  the  appropriate reduction gear in stock  and  that  the

repower could be completed by August 2000.

          The  Nelsons  had the Aleut Princess towed  to  P&R  in

Petersburg.   Jason Luhr, Mike Luhrs nephew, testified  that  P&R

removed  the  old  engine  and  fuel  system,  installed  a  600-

horsepower  Cummins  KTA19  diesel engine,  rebuilt  the  exhaust

system,  mounted  and  wired  instrument  panels,  and  installed

coolant and plumbing.  P&R also changed the main and return  fuel

lines,  performed work on the hydraulic system, and  installed  a

new reduction gear.  P&R encountered multiple problems during the

engines installation and on subsequent sea trials.

          P&R  was ready to release the Aleut Princess to Nelsons

son  on  August  17,  2000.  Barbara Nelson  testified  that  her

husband  did  not want the boat to leave P&Rs control  without  a

warranty.   Norval  Nelson testified that he  telephoned  Cummins

Northwest  to  discuss  the warranty.  He claimed  that  he  told

Cummins  Northwest of the problems P&R had during the sea  trials

and that Cummins Northwest told him that they could not provide a

warranty  until  P&R  completed  a  required  installation  form.

Norval  Nelson  testified that he told his  son  to  get  written

confirmation of a warranty from Luhr.  Luhr faxed Barbara  Nelson

a  note  stating Scott Graf from Cummins is going to call  Norval

and verify warranty start date 8/16/00.

          The  Nelsons  received an invoice for $122,820.01  from

P&R  for  the repower project.  Barbara Nelson wrote a check  for

the full amount to Mike Luhr and P&R.

          Nelsons son left Petersburg for Juneau aboard the Aleut

Princess on August 17, 2000.  He and other crew members testified

that the boat vibrated badly when they ran the new engine at 1400

revolutions per minute.  Norval Nelson emailed Cummins about  the

vibration problem on August 18.  Cummins called the Nelsons  once

but it was early in the morning and Barbara Nelson testified that

she asked them to call back.  Cummins never called back.

          On  August  25 the Nelsons took the Aleut  Princess  to

Angoon.  Upon arrival, the boat was docked and the Cummins engine

was  shut down.  Nelson testified that the only power source left

running was a Detroit Diesel 271 auxiliary engine.

          Around  midnight a bystander testified that he saw  the

Aleut  Princess  go  real dim and then  [go]  bright  twice.   He

checked  on the boat, noticed smoke, and rang the siren.   Nelson

testified  that  by the time he arrived on the  dock,  the  Aleut

Princess  was  filled with smoke.  He and his crew  did  not  see

flames on the exterior of the vessel or in the galley.  The  only

flames they saw were in an area above and slightly forward of the

still-running  Detroit Diesel engine.  One crew member  testified

that  he  looked  into the engine room and  saw  flames.   Nelson

claimed that he was attempting to extinguish the fire when  there

was an explosion and he was forced to abandon the boat.  The fire

could  not be stopped and the Aleut Princess had to be cut  loose

from the dock; it drifted away and eventually sank.  Because  the

boat sank in water too deep for recovery, no physical evidence of

the cause of the fire exists.

     B.   Proceedings Below

          The  Nelsons filed a superior court complaint in Juneau

against Cummins, Inc., Cummins Northwest, and P&R for  (1) breach

of  contract;  (2) breach of express and implied warranties;  (3)

product liability; and (4) negligence.3  The case was tried to  a

jury in Juneau.

          Shortly  before  trial, the Nelsons settled  with  P&R.

P&R was excused from participation at trial and agreed not to put

on a defense.  In exchange, the Nelsons agreed to pursue recovery

on any judgment against Cummins before attempting to collect from

P&R.  The agreement was introduced as an exhibit at trial.

          Two  fire investigators testified for the Nelsons.  One

testified  that he had determined that the fire did not originate

on  the deck, in the wheelhouse, or in any area above deck.  They

both thought that it was highly probable that the fire was caused

by some alteration to the Aleut Princess during the repower.  The

only  active  fuel  source was the auxiliary  engine,  which  was

situated  below  a  newly relocated T  in  the  fuel  line.   One

investigator  testified that the fire most likely  originated  in

the  area  of the T.  But neither investigator could conclusively

determine  the  exact  cause of the fire.   Both  ruled  out  the

Cummins engine itself as a possible source of the fire.

          At  the  close  of all evidence, Cummins  moved  for  a

directed  verdict  on  all  counts  and  objected  to  some  jury

instructions,  including one defining product.  It also  objected

to portions of the special verdict form.

          The  jury  returned  a verdict against  Cummins,  Inc.,

Cummins  Northwest, and P&R on each of the four counts and  found

that  Cummins, Inc. and Cummins Northwest were vicariously liable

for  the  actions of P&R.  The jury allocated fault  as  follows:

P&R:    sixty-six  percent;  Cummins,  Inc.:   fourteen  percent;

Cummins  Northwest:   twenty  percent;  and  the  Nelsons:   zero

percent.   The  jury  found  that the  Nelsons  suffered  damages

totaling  $923,509.4  The superior court denied Cumminss  motions

for judgment notwithstanding the verdict and for a new trial, and

entered final judgment.

          On  appeal, Cummins contends that (a) the definition of

product in jury Instruction No. 19 was erroneous and prejudicial;

          (b) the superior court erroneously refused to grant a directed

verdict   or   new  trial  on  the  product   liability,   direct

negligence,  direct  breach of contract,  and  direct  breach  of

warranty  claims; (c) the superior court erroneously  refused  to

grant  a directed verdict or new trial on the vicarious liability

claims;  and  (d) portions of the jury instructions prejudicially

conflicted with the special verdict form.5

III. DISCUSSION

     A.   Standard of Review

          We  review  the denial of a directed verdict motion  to

determine  whether the evidence, when viewed in  the  light  most

favorable  to  the  non-moving party,  is  such  that  reasonable

persons could not differ in their judgment as to the facts.6   We

review  the  superior courts legal rulings de novo, adopting  the

rule  of  law  that  is  most persuasive in light  of  precedent,

policy, and reason.7  We review jury instructions de novo when  a

timely  objection is made.8  Without a timely objection, we  will

only  review  instructions for plain error.9  A  special  verdict

form  is  a type of jury instruction subject to the same standard

of review.10

     B.    The  Jurys Finding that Cummins Was Vicariously Liable
for P&Rs       Negligence Was Supported by the Evidence.

          Cummins  argues  that  it should have  been  granted  a

directed  verdict  on the vicarious liability claim  because  the

trial evidence was so weak that, as a matter of law, it could not

justify  a finding of apparent authority.  Cummins contends  that

Nelson  presented no evidence showing that Cummins  did  anything

that  the Nelsons reasonably relied upon to believe that P&R  had

any        relationship        beyond        a        traditional

manufacturer/distributor/dealer   relationship   with    Cummins.

(Emphasis in original.)

          The  superior  court concluded that  reasonable  jurors

could  find for the Nelsons and denied Cumminss directed  verdict

motion.   The  jury found that P&R was negligent  and  that  P&Rs

negligence  was  a  legal cause of the  fire.   Cummins  has  not

          appealed this finding.  The jury also found Cummins vicariously

liable for P&Rs negligence based on apparent authority.11

          Apparent   authority  is  used  to  hold  a   principal

accountable  for a third partys belief about an actors  authority

to  act  as  an  agent  for  the principal  when  the  belief  is

reasonable and is traceable to a manifestation of the principal.12

Apparent authority is created by written or spoken words  or  any

other  conduct  of  the principal which, reasonably  interpreted,

causes the third person to believe that the principal consents to

have  the act done on his behalf by the person purporting to  act

for him.13  There are three considerations in evaluating apparent

agency:  (1)  the manifestations of the principal  to  the  third

party; (2) reliance on the principals manifestations by the third

party;   and   (3)  the  reasonableness  of  the   third   partys

interpretation   of   the  principals  manifestations   and   the

reasonableness  of the third partys reliance.14  If  a  principal

cloaks  its  apparent  agent  with  authority  to  enter  into  a

transaction on its behalf, the principal is liable as if  it  had

entered into the transaction personally.15

          1.   Cumminss manifestations to Nelson

          A manifestation may be in the form of written or spoken

words  or any other conduct . . . .16  The manifestation  may  be

directly  communicated to the third party  or  may  come  through

signs, advertising, authorization of an agent to claim that he is

authorized, or continuous employment of the agent.17

          Nelson  testified  that, after his wife  gave  him  the

phone  number from an advertisement, he called Cummins  Northwest

in  Anchorage, explained which engine he wanted to purchase,  and

asked if they could help him out.18  According to Nelson, Cummins

Northwests employee responded:  Yeah, I sure can help you out.  .

. . Petersburgs where you want to go and we can fix you up there.

          Nelson  testified  that the Cummins Northwest  employee

gave him P&Rs phone number and told him that P&R could put in the

engine there for [him] and take care of [him] and get [him]  back

          on the road.  Nelson then called P&R and negotiated the repower

with  Mike  Luhr.  There was no evidence that Nelson had  further

contact  with Cummins, Inc. or Cummins Northwest until after  the

repower was complete.

          Cummins  correctly argues that in this case our  review

of  the  evidence  should focus on Cumminss  manifestations  that

Nelson  was  aware  of.   In  a  case  in  which  there  was   no

communication  between  the principal and  the  third  party,  we

overturned a finding of apparent authority.19  But in this  case,

Nelson  testified  that  he spoke with  an  employee  of  Cummins

Northwest and that the employee referred him to P&R, telling  him

that  we  can  fix  you  up  there.   The  evidence  of  Cumminss

manifestations  to  Nelson  was  sufficient  to  present  a  jury

question   concerning  this  element  of  the  Nelsons   apparent

authority claim.20

          2.   Nelsons reliance on Cumminss manifestations

          The  commentary to the Restatement (Second)  of  Agency

states [t]he mere fact that acts are done by one whom the injured

party believes to be the defendants servant is not sufficient  to

cause  the  apparent  master to be liable.  There  must  be  such

reliance upon the manifestation as exposes the plaintiff  to  the

negligent conduct.21

          The  evidence  was  sufficient to  allow  the  jury  to

determine  whether  Nelson relied on Cumminss  manifestations  in

choosing  to  have  his new engine installed  by  P&R.22   Nelson

testified  that he decided to have a Cummins engine installed  in

the  Aleut  Princess  because he liked  the  performance  of  the

Cummins engine in his other vessel.  Nelson had his wife retrieve

the  Cummins  Northwest advertisement, called Cummins  Northwest,

and  was  referred by Cummins Northwest to P&R.  Nelson testified

that  he had never heard of P&R before this conversation.  If  he

had  known that P&R was not part of Cummins, Nelson testified  he

would  not have had his engine installed there because it is  too

small  of an operation.  Ive got to work with people that I  know

will  back me if something goes wrong, be able to get me  .  .  .

fixed  up,  get me back out on the grounds, like they  said  they

would.  Nelson testified that he chose Cummins [b]ecause theyre a

big company and they stand by . . . their word.

          Reasonable  persons  could permissibly  find  from  the

evidence that Nelson believed he was dealing with Cummins  during

the  entire  repower transaction.  His initial contact  was  with

Cummins Northwest.  When the installation was complete and Nelson

was  looking  for  a  warranty for the work  done  on  the  Aleut

Princess, he called Cummins Northwest directly.  After the  Aleut

Princess  was released by P&R, Nelson sent an email  directly  to

Cummins asking for help with the vibration problem.  The evidence

of  Nelsons reliance on Cumminss manifestations was sufficient to

present a jury question on this element of apparent authority.

          3.    Reasonableness  of Nelsons belief  that  P&R  was
acting  for                Cummins  and  reasonableness  of   his
          reliance on Cumminss               manifestations

          Per  the  commentary to Restatement (Second) of  Agency

8,  [a]pparent  authority exists only to the extent  that  it  is

reasonable for the third party dealing with the agent to  believe

that the agent is authorized.23

          Nelson  testified that he believed that he was  dealing

with Cummins during the entire installation.  Cummins argues that

Nelson  should  have known that P&R was not an agent  of  Cummins

because P&R is an authorized dealer for manufacturers other  than

Cummins.  But we must consider Cumminss manifestations to  Nelson

in  light of what Nelson knew or should have known at the time of

the manifestations.24  Nelson testified that he did not know that

P&R  was  a  dealer for other manufacturers or distributors.   He

testified  that  he had never done business with P&R  before  the

repower.   Cummins  argues that, because P&R displayed  brochures

from  other  manufacturers  in its shop  and  was  listed  as  an

authorized  dealer for other manufacturers in the  Marine  Yellow

Pages,  Nelson should have been alerted to the fact that P&R  was

not   Cumminss  agent.  But  Norval  Nelson  testified  that   he

negotiated  the  engine  installation with  Mike  Luhr  over  the

telephone  and that he never personally visited P&Rs shop  during

the  installation.   At trial, Cummins questioned  Norval  Nelson

about  the reasonableness of his belief that he was dealing  with

Cummins through P&R because Cumminss name was not listed on  P&Rs

letterhead and there was no mention of Cummins in the bill.   But

Nelson   testified   that  he  did  not   receive   any   written

documentation  from  P&R  until  after  the  repower  was  nearly

complete.

          There  was  also evidence that tended to  show  Nelsons

belief was unreasonable.  When Nelson telephoned P&R, no one that

Nelson  spoke to represented themselves as an employee of Cummins

and  the  telephone  was  answered as Piston  &  Rudder.   Nelson

testified  that he understood the difference between an appliance

manufacturer and a dealer but that he did not think that the same

          manufacturer-dealer relationship existed in the automobile

industry.

          Cumminss   main  argument  on  appeal   is   that   the

manufacturer/ distributor/dealer relationship does not give  rise

to  apparent authority.  But the evidence reasonably permitted  a

finding  that  Nelson did not rely simply on P&Rs  status  as  an

authorized  dealer when he chose to have his vessel repowered  by

P&R.   Norval Nelson testified that a Cummins Northwest  employee

told him that we can fix you up in Petersburg.

          It is usually for the trier of fact to decide whether a

reasonable  person  in  the position of  the  third  party  would

believe  that the agent had the authority or the right  to  do  a

particular act.25  The jury brings broad practical experience  to

bear on the evidence, and motions for directed verdict should  be

scrutinized under a principle of minimum intrusion into the right

to jury trial . . . .26  Viewed in the light most favorable to the

prevailing   parties  at  trial,  there  was  adequate   evidence

supporting Norval Nelsons belief that P&R was acting on behalf of

Cummins  to allow the jury to consider the reasonableness element

of the Nelsons apparent authority claim.

          4.   Submission of apparent authority to the jury

          As   we   saw  above,  there  was  sufficient  evidence

supporting  each element of the Nelsons apparent authority  claim

to  allow the jury to determine whether Cummins cloaked P&R  with

authority to act on its behalf.  The superior court did  not  err

by  refusing to grant Cumminss directed verdict motion.   Because

the jury permissibly found that P&R had apparent authority to act

for  Cummins  Northwest and Cummins, Inc.,  both  defendants  are

liable  for  the  negligence of P&R as if  they  were  personally

negligent.27

     C.    The Special Verdict Form Appropriately Paraphrased the
Jury           Instructions.

          Cummins  argues that the special verdict  form  invited

the  jury  to  stray  from the elements of apparent  agency.   In

essence,  Cummins  argues that, even though  Instruction  No.  38

          correctly required the jury to find both a manifestation by

Cummins  and reasonable reliance on that manifestation by Nelson,

the  special verdict form only asked the jury whether Nelson  had

reason to believe that P&R was acting for Cummins.

          Alaska  Civil Rule 49(b) allows the superior  court  to

submit  to  the jury written questions susceptible of categorical

or  other brief answer . . . . We treat a special verdict form as

a type of jury instruction subject to the same standard of review

applicable  to claims of instructional error.28  To be reversibly

erroneous, an instruction must contain an erroneous statement  of

the law and the error must be prejudicial.29

          Instruction No. 38 read in part:

          The  law  makes Cummins Northwest or  Cummins
          Engine responsible for the acts of Piston and
          Rudder  if you decide it is more likely  than
          not true that:
          
          (1)   Cummins Northwest or Cummins Engine did
          or  said  something that caused the plaintiff
          reasonably to believe that Piston and  Rudder
          was  authorized to act on behalf  of  Cummins
          Northwest or Cummins Engine; and
          
          (2)   The plaintiff reasonably relied on this
          belief.
          
Question  No. 10(a) of the special verdict form asked:   Did  the

plaintiffs have reason to believe that Piston and Rudder  was  an

agent  of Cummins Northwest?  Question No. 10(b) asked:  Did  the

plaintiffs have reason to believe that Piston and Rudder  was  an

agent of Cummins Engine?

          A special verdict form question need not lay out all of

the  elements  in  a cause of action.30  A special  verdict  form

question is intended to be simple and concise, not repetitive  or

misleading.31   Indeed,  if the special verdict  form  could  not

paraphrase  the instructions to some extent, the special  verdict

form  would  be as long as the relevant instructions  themselves,

and  would have to repeat them verbatim.  We assume that  a  jury

follows  the  trial courts instructions,32 and we  consider  this

special  verdict  form in the context in which  it  was  given.33

          Instruction No. 38 required the jury to find both a manifestation

by  Cummins  and  reasonable reliance on  that  manifestation  by

Nelson.   It  instructed the jury that if both requirements  were

not  fulfilled,  Cummins was not responsible for the  actions  of

P&R.34   Questions No. 10(a) and 10(b) appropriately  paraphrased

the jury instruction and were therefore not erroneous.

     D.    Jury Instruction No. 19 Did Not Influence the Findings
of   Negligence         or  Apparent  Authority   and   Was   Not
Prejudicial.

          Cummins  argues  that Instruction  No.  19  erroneously

instructed the jury on the definition of product.  Cummins claims

that  it  was severely prejudiced because the jury found  Cummins

strictly  liable  for  the fire even though Nelson  presented  no

evidence that the Cummins engine was defective or that it  caused

the fire.

          Instruction No. 19 read:

          In  considering plaintiffs separate  theories
          of  recovery,  you  are instructed  that  the
          product  at  issue is a marine engine,  model
          KTA 19-M3, manufactured by Cummins, Inc.   As
          used  in these instructions, the term product
          includes the installation of all those things
          necessary for the installation of the engine.
          
          To  remand for an incorrect jury instruction,  we  must

conclude both that the instruction incorrectly states the law and

that it was prejudicial.35 An erroneous instruction is prejudicial

if  it  can be said that the verdict may have been different  had

the erroneous instruction not been given.36

          We   conclude   that  Instruction  No.   19   was   not

prejudicial.37  Instruction No. 15 made it clear that the jury was

being  instructed  on  the  Nelsons four  alternate  theories  of

liability: product liability, negligence, breach of contract, and

breach of warranty.

          Instruction  No. 17 began: Plaintiffs first  theory  of

recovery is that Plaintiffs were damaged by a defect in a product

which  the Defendant made or sold; it then described the elements

of  a  product liability claim.  Instructions No. 18, 19, and  20

          defined  words and phrases used in Instruction No.  17.

Instructions  No. 21, 22, and 23 related to the burden  of  proof

and how it could be met, and comparative negligence.

          Instruction No. 24 began: [t]he plaintiffs second claim

is  that  they  were  harmed because of  the  negligence  of  the

defendants . . . ; it then described the elements of a negligence

claim.  The word product did not appear in this instruction or in

the next five instructions that related to the negligence claim.

          Reading  the  instructions as a whole, it  is  apparent

that the jury was instructed separately on each of the plaintiffs

four  liability theories.  For example, Instructions No.  20  and

No.  28  separately define legal cause for the product  liability

claim and the negligence claim, respectively.  Instruction No. 20

provided  that [a] defective condition in a product  is  a  legal

cause  of harm if it is a substantial factor in bring[ing]  about

the  harm.  Instruction No. 28 defined legal cause as an  act  or

failure to act which is a substantial factor in bring[ing]  about

the  harm.  This demonstrates that the jury was told to  consider

Instruction No. 19s definition of product when it was determining

liability under the product liability claim, but not when it  was

considering  the negligence claim.  The jury found  liability  on

the  negligence  claim.   The jurys negligence  finding  was  not

dependent on the definition of product in Instruction No. 19.

          Nor  would Instruction No. 19 have influenced the jurys

consideration of the vicarious liability claim.  Instruction  No.

38  explained the elements of apparent agency.  The word  product

did  not appear in this instruction, and the instruction did  not

refer the jury back to the product liability instructions.

          Cummins alternatively argues that we should remand  for

a  new trial because the definition of product took the issue  of

vicarious liability away from the jury by permitting it  to  hold

Cummins  responsible  for the installation of  all  those  things

necessary for the installation of the engine.38  Cummins contends

that  the  jury  might have found differently  on  the  vicarious

          liability claim had this instruction had not been given.  This

argument  is  unpersuasive because the jury instructions  clearly

dealt separately with the four claims.

          The  Nelsons  counsel did not argue to  the  jury  that

Instruction No. 19 required the jury to find vicarious liability.

He  relied on the definition of product in Instruction No. 19  to

argue that Cummins had warranted the entire repower project. When

explaining  the  evidence that supported the  apparent  authority

claim,  he  did not refer to Instruction No. 19.  He argued  that

Cummins   cloaked  P&R  with  apparent  authority   through   its

advertisements and direct manifestations to the Nelsons.

          We  conclude that the record contains adequate evidence

to  support  the jurys findings that P&R was negligent  and  that

Cummins  was  vicariously  liable for  P&Rs  actions.   The  jury

instructions  and  special  verdict  questions  that  related  to

negligence and apparent agency were not erroneous and  we  affirm

the   verdict  and  damage  award  on  these  legal  bases.   Any

potentially erroneous jury instruction unrelated to the claims of

vicarious liability or negligence is therefore not prejudicial.

     D.   The  Superior Courts Refusal To Direct a Verdict on the
          Direct Liability Claims Was Harmless Error.
          
          Cummins  argues  that  the  superior  court  erred   by

refusing  to  direct  a  verdict  for  Cummins  on  the   product

liability, direct negligence, breach of contract, and  breach  of

warranty  claims.  Even assuming error, the failure  to  grant  a

directed  verdict on the direct (non-vicarious) liability  claims

was harmless.  If a jury returns separate verdicts on independent

claims,  we  can  affirm  the judgment  if  substantial  evidence

supports  any  of  those  claims.39   Substantial  evidence  here

supported  the  jurys findings that P&R was  negligent  and  that

Cummins,  Inc. and Cummins Northwest were vicariously liable  for

P&Rs  negligence.  There is consequently no need to  address  the

merits  of  Cumminss  directed  verdict  motions  on  the  direct

liability claims.

IV.  CONCLUSION

          For these reasons, we AFFIRM the judgment.

_______________________________
     1     The facts outlined below were presented to the jury at
trial.   We  view  the  facts in a light most  favorable  to  the
Nelsons,  who  prevailed at trial.  Intl Bhd. of  Elec.  Workers,
Local  1547 v. Alaska Util. Constr., Inc., 976 P.2d 852, 853  n.1
(Alaska 1999).

     2     Norval Nelson testified that he called Cummins Alaska,
or  something  like  that but he referred to a Cummins  Northwest
advertisement  as  the  source of the telephone  number  that  he
dialed.

     3     The  Nelsons  also asserted a res ipsa loquitor  claim
that was dismissed on summary judgment.

     4     The  jury  awarded the Nelsons the following  damages:
(a)  value of the Aleut Princess, $315,000; (b) items of personal
property, $20,260; (c) past lost income, $64,249; (d) future lost
income,  $24,000;  (e) personal injury, $200,000;  (f)  emotional
distress  (Norval  Nelson), $200,000; and (g) emotional  distress
(Barbara Nelson), $100,000.

     5    The Nelsons cross-appeal argues that the superior court
erroneously  limited damages to fair market value  of  the  Aleut
Princess.   It  also  argues that the superior court  erroneously
refused to instruct the jury on punitive damages.  They condition
their  cross-appeal  on a reversal for a new  trial  in  Cumminss
appeal.   Because we affirm, we need not address the cross-appeal
arguments.

     6     K&K  Recycling, Inc. v. Alaska Gold Co., 80 P.3d  702,
722 (Alaska 2003).

     7    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     8     Reich  v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002).

     9    Manes v. Coats, 941 P.2d 120, 125 (Alaska 1997).

     10    Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).

     11    Special verdict Question Nos. 10(a) and 10(b) addressed
the  issue of apparent authority.  Question No. 10(a) asked:  Did
the  plaintiffs have reason to believe that Piston and Rudder was
an  agent  of Cummins Northwest?  Question No. 10(b) asked:   Did
the  plaintiffs have reason to believe that Piston and Rudder was
an  agent  of  Cummins  Engine?  The jury answered  Yes  to  both
questions.

     12     Restatement (Second) of Agency  8 (1958).  Section  8
states  [a]pparent  authority is the power to  affect  the  legal
relations  of another person by transactions with third  persons,
professedly  as  agent  for  the  other,  arising  from  and   in
accordance with the others manifestations to such third persons.

     13     City of Delta Junction v. Mack Trucks Inc., 670  P.2d
1128,  1130  (Alaska 1983) (adopting the Restatement (Second)  of
Agencys general rule for creation of apparent authority).

     14    Restatement (Second) of Agency  8 (1958).

     15    Restatement (Second) of Agency  140, cmt. a (1958).

     16    Restatement (Second) of Agency  27 (1958).

     17    Restatement (Second) of Agency  8, cmt. b (1958).

     18     For  more detailed discussion of the proceedings  and
evidence, see Part II above.

     19     Bruton v. Automatic Welding & Supply Corp., 513  P.2d
1122,  1126 (Alaska 1973) (holding that trial court clearly erred
in  finding agency relationship when principal never indicated to
third party that supposed agent had authority).  See also Perkins
v. Willacy, 431 P.2d 141, 143 (Alaska 1967) (holding it was clear
error  for  trial court to find apparent agency when third  party
never spoke with principal about transaction at issue).

     20    See, e.g., Fleming Co. v. NLRB, 349 F.3d 968, 973 (7th
Cir.  2003) (sustaining boards conclusion that management cloaked
employee  with  authority  in  part by  introducing  employee  as
supervisor  and  referring to employee as  team  leader);  Anchor
Crane  & Hoist Serv. Co. v. Sumrall Pers. Serv., Inc., 620 S.W.2d
653,  654  (Tex.  Civ. App. 1981) (affirming jurys  finding  that
company  president  cloaked employee with  hiring  power  because
president transferred call from recruiter directly to employee).

     21    Restatement (Second) of Agency  267, cmt. a (1958).

     22     City of Delta Junction v. Mack Trucks Inc., 670  P.2d
1128,  1131  (Alaska 1983) (holding it was jury question  whether
Mack  Trucks  acquiescence to Alaska Macks use of  its  name  and
reputation was sufficient for apparent agency).  See also  Mercer
v.  Weyerhaeuser  Co., 735 A.2d 576, 594 (N.J. Super.  App.  Div.
1999)  (holding plaintiffs assertions that principals  reputation
influenced their decision created issue of fact for jury).

     23    Restatement (Second) of Agency  8, cmt. c (1958).

     24    See Restatement (Second) of Agency  49(a) (1958).

     25    Mack Trucks, 670 P.2d at 1130.

     26    Id. at 1130 n.2 (internal citations omitted).

     27     See  Austin  v. Fulton Ins. Co., 498  P.2d  702,  705
(Alaska 1972) (noting that principal is liable for tort committed
by   agent   within  scope  of  apparent  authority);  see   also
Restatement  (Second)  of  Agency  8,  cmt.  a  (noting  that  if
apparent  authority  exists, third party  has  same  rights  with
reference  to principal as when agent is authorized); Restatement
(Second)  of Agency  215 (1958) (stating principal is  liable  to
third party for torts committed by authorized agent).

     28     If no timely objection is made to an instruction,  we
will review the instruction only for plain error.  See supra note
9.   Cummins asserted a general objection to the special  verdict
form  as  being  potentially confusing but did  not  specifically
object to Question Nos. 10(a) or 10(b).  It is doubtful that this
was  an adequate objection, but the applicable standard of review
is  irrelevant because we conclude that Question Nos.  10(a)  and
10(b) were not incorrect.

     29    Grimes v. Haslett, 641 P.2d 813, 818 (Alaska 1982).

     30    See Simmons v. Garces, 763 N.E.2d 720, 735 (Ill. 2002);
Seattle W. Indus., Inc. v. David A. Mowat Co., 750 P.2d 245,  251
(Wash. 1988).

     31     Simmons, 763 N.E.2d at 735.  See also Smith v. Sturm,
Ruger  &  Co.,  695 P.2d 600, 604 (Wash. 1984) ([A]n  instruction
which does not purport to summarize all the issues is not held to
the same standard as a formula instruction.).

     32    Central Bering Sea Fishermens Assn v. Anderson, 54 P.3d
271, 281 (Alaska 2002).

     33    See Simmons, 763 N.E.2d at 735.

     34    Instruction No. 38 as it appears in the record contains
a  double  negative.   The  superior court  deleted  one  of  the
negative  terms  when it read the instruction to  the  jury.   No
party claims that the jury was misled by Instruction No. 38.

     35    General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214
(Alaska 1998).

     36     Beck v. State, Dept of Transp. & Pub. Facilities, 837
P.2d 105, 114 (Alaska 1992).

     37     The  majority  of  Cumminss  argument  contends  that
Instruction  No.  19 was an incorrect statement  of  Alaska  law.
Because  we determine that any error was not prejudicial,  we  do
not  address the threshold question of whether the  substance  of
Instruction No. 19 was a correct statement of the law.

     38    See supra p. 17.

     39     See  Del  Monte Dunes at Monterey, Ltd.  v.  City  of
Monterey, 95 F.3d 1422, 1426 (9th Cir. 1996), rehg granted by 118
F.3d  660  (9th Cir. 1997), affd by 526 U.S. 687 (1999)  (holding
that,  where  jury was instructed separately on  two  claims  and
found  defendant  liable on both, verdict could  be  affirmed  if
substantial evidence supported either claim).