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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cikan v. ARCO Alaska, Inc. (12/16/2005) sp-5967

Cikan v. ARCO Alaska, Inc. (12/16/2005) sp-5967

     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

CHRISTINE L. CIKAN, )
) Supreme Court No. S- 10915
Appellant, )
) Superior Court No.
v. ) 3AN-00-6446 CI
)
ARCO ALASKA, INC., ) O P I N I O N
)
Appellee. ) [No. 5967 - December 16, 2005]
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Anchorage,  Sen  K.  Tan,
          Judge.

          Appearances:    Max   F.   Gruenberg,    Jr.,
          Gruenberg,  Clover & Holland, Anchorage,  for
          Appellant.   Andrew  Guidi,  Delaney,  Wiles,
          Hayes,   Gerety,   Ellis   &   Young,   Inc.,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Fabe,  and  Carpeneti, Justices.   [Eastaugh,
          Justice, not participating.]

          BRYNER, Chief Justice.
          FABE, Justice, dissenting.

I.   INTRODUCTION
          Eight and a half years after injuring herself in a slip-
and-fall   accident  outside  the  ARCO  building  in  Anchorage,
Christine Cikan sued ARCO for damages, claiming that her  delayed
action  was  timely because her injury had made her  incompetent.
The  superior  court dismissed Cikans case on  summary  judgment,
rejecting her claim of incompetency and concluding that her  suit
was barred by the statute of limitations.  We reverse and remand,
holding that Cikan raised a genuine issue of material fact as  to
her   competency  and  that  this  dispute  precluded   summarily
dismissing  her  action  as time-barred.   But  because  disputes
involving  compliance  with the statute  of  limitations  present
preliminary issues of fact that must ordinarily be decided by the
court before trial, we further hold that, on remand, the superior
court must resolve the factual dispute over Cikans competency  by
conducting a pretrial evidentiary hearing.
II.  FACTS AND PROCEEDINGS
          In  December 1991 Christine Cikan slipped and  fell  on
ice  outside the ARCO building in Anchorage, hitting her head and
suffering  a  concussion.   Some time after  the  accident  Cikan
contacted  attorney  Joseph  Kalamaridess  office  and  spoke  to
Kalamarides  by  telephone about representing her  in  a  workers
compensation claim related to her accident.  Kalamarides declined
the  case  but  gave Cikan the names of two other  attorneys  who
handled workers compensation cases.  Kalamarides also told  Cikan
that she might have a separate personal injury claim against ARCO
and  that she had two years from the date of the accident to file
that  claim.   In November 1993 Kalamarides sent Cikan  a  letter
confirming their conversation and repeating this information.
          In  December 1995, four years after her accident, Cikan
filed  a  pro se complaint against Kalamarides, accusing  him  of
malpractice  for  allowing  her claim  against  ARCO  to  expire.
Specifically,  Cikan alleged that she had contacted  Kalamaridess
office  about  six months after her accident and had  extensively
discussed  the  case  with  him and his staff;  that  Kalamarides
agreed  to  represent her in pursuing a claim against  ARCO;  but
that he changed his mind at the last minute, claiming that he was
too  busy.   By then, Cikan claimed, it was too late for  her  to
find substitute counsel.
          Kalamarides  denied  these allegations  and  moved  for
summary  judgment, insisting that Cikan had spoken  to  him  only
once, primarily about her workers compensation claim; that he had
never  agreed to represent her; and that he had referred  her  to
another  attorney  before  her time to file  the  claim  expired.
Cikan  evidently did not oppose Kalamaridess motion  for  summary
judgment.  The superior court dismissed Cikans claim in 1996.
          In April 2000, more than eight years after her accident
and three and a half years after her suit against Kalamarides was
dismissed, Cikan sued ARCO for the injuries she sustained in  her
1991 fall.  Her complaint acknowledged that she had not filed the
action within the specified two-year time limit, but alleged that
this delay was due to her injuries.
          ARCO  moved for summary judgment, asserting that Cikans
claim  was  barred  by the two-year statute  of  limitations  for
personal   injury  actions.   ARCOs  motion  noted   that   Cikan
apparently  intended to claim that the statutory limit  had  been
tolled  by  mental  incapacity, but ARCO insisted  that  she  had
failed  to  offer  a  shred  of  evidence  that  she  is  or  was
incompetent  by  reason of mental illness or  mental  disability.
And  even  assuming that the 1991 accident resulted  in  mentally
disabling   injuries,   ARCO  contended,  Cikans   suit   against
Kalamarides conclusively demonstrated that she had recovered  her
competency by 1995, when that action was filed:
          Her  allegations  in  her  pro  se  complaint
          against  Joseph  Kalamarides demonstrate  (1)
          that   the  plaintiff  understood   all   the
          elements  of  her  personal injury  cause  of
          action,  (2) that she understood the  statute
          of  limitations, and (3) that she was capable
          of making prompt and diligent efforts in this
          matter.
          
          In  opposing  ARCOs motion,1 Cikan filed  an  affidavit
from  Dr.  Aron  Wolf, a psychiatrist who had  recently  examined
Cikan   and  diagnosed  her  as  suffering  from  post-concussion
syndrome  originating from a concussion that she sustained  as  a
result of a fall on December 17, 1991.  Dr. Wolf stated that  her
condition  manifested  itself in confusion, personality  changes,
disorganization,  and severe decrements in mathematical  ability.
Dr. Wolf further explained: On review of the records, it is clear
to  me  that  the  picture of the symptoms of the post-concussion
syndrome  did  not  become evident to either  Ms.  Cikan  or  her
physicians  until a number of years after the accident  and  thus
not filing the lawsuit until she was aware of her symptom complex
would  be consistent with her injuries.  In addition to Dr. Wolfs
affidavit, Cikans opposition included voluminous records intended
to  document  her  post-accident employment history  and  medical
treatment,  as  well as many affidavits from family  members  and
acquaintances, who generally described changes in Cikans behavior
and  mental  state consistent with the symptoms detected  by  Dr.
Wolf.
          In addition, Cikan filed a verified memorandum replying
to  ARCOs  contention  that  her 1995  suit  against  Kalamarides
amounted  to conclusive proof of her competency when that  action
was  filed.  Cikan insisted that, because of the head injury  she
sustained  in  the  1991  accident, she was  not  able  to  fully
comprehend  the circumstances at the time of that suit,  and  was
not  mentally able to file this lawsuit until [she] actually  did
so.
          While   acknowledging  that  her   pleadings   in   the
Kalamarides  case could be viewed as circumstantial  evidence  of
her  understanding and competency, Cikan advanced an  alternative
explanation;  disavowing  her  claims  to  the  contrary  in  her
complaint against Kalamarides, Cikan maintained:
               I  never  met Mr. Kalamarides.   I  only
          spoke with him once, by phone.  He could  not
          see   me   and  could  not  tell  whether   I
          understood  the implications of what  he  was
          saying, specifically whether I understood the
          concept of a statute of limitations.   I  did
          not;  nor  did  I understand the  concept  of
          tolling  until after I had filed this lawsuit
          against ARCO.  The fact that he even wrote me
          a  letter  may be reflective of (1) the  fact
          that I was very confused when we talked,  and
          (2) my head injury.
          
          Cikan   further   pointed  out  that  when   she   sued
          Kalamarides,
          [t]he only document I filed in that case  was
          the  complaint,  which  was  drafted  by   an
          attorney   I  had  hired  for  that   limited
          purpose.   He  would not represent  me.   Mr.
          Kalamarides  received  summary  judgment   by
          default.   As  he stated in his affidavit,  I
          had been totally confused about the number of
          times  I had contacted him.  Not only  was  I
          wrong factually, but I never should have sued
          him.
          
          As  explained  in  this affidavit,  then,  Cikans  suit
against  Kalamarides  could be viewed as a sign  of  her  ongoing
incapacity;  or as Cikan put it, The very filing of that  lawsuit
shows my mental confusion four years after the accident.
          The   superior   court   rejected   Cikans   claim   of
incompetency  and  granted  ARCOs motion  for  summary  judgment,
concluding  that  the  action was time-barred.  Pointing  to  the
pleadings  and  circumstances  surrounding  Cikans  1995   action
against Kalamarides, the court found:
          The . . . evidence demonstrates that she knew
          what  her legal rights were and that she  was
          taking steps to ensure that she filed a claim
          before  the statute of limitations  ran.   In
          Cikans  December  15, 1995 complaint  against
          Kalamarides, it is clear that she  understood
          her  rights  as  she  stated  that  she  made
          diligent  efforts to retain another  attorney
          as  she knew the statute of limitations would
          run in December of 1993.
          
          In  the  courts view, because Cikan clearly  understood
the   statute  of  limitations  in  1995,  the  various  problems
documented in the records and affidavits that she had  filed  did
not  suffice to raise an issue of fact concerning the  timeliness
of her claim.  The court similarly found that Dr. Wolfs affidavit
did  not  suffice  to  raise a genuine issue  of  material  fact,
emphasizing that Dr. Wolf does not specifically state or raise an
issue  of  fact  that Cikan was mentally incompetent  during  the
years  1991, 1992, 1993, or even through 1995.  Nor does he state
that  she did not understand her legal rights.  Finding no  basis
for  tolling  the statute of limitations under these  facts,  the
court dismissed Cikans claim.
          Cikan appeals.
III. DISCUSSION
           We review questions of summary judgment de novo.2  We
 will affirm a grant of summary judgment if there are no genuine
 issues of material fact and if the movant is entitled to judgment
 as a matter of law.  When making this determination, we draw all
 reasonable inferences in favor of the non-movant.3  The moving
 party has the initial burden of offering admissible evidence
 showing both the absence of any genuine dispute of fact and the
 legal right to a judgment.4  Once the moving party has made a
 prima facie showing, the burden shifts to the non-moving party to
 produce admissible evidence reasonably tending to dispute or
 contradict the movants evidence.5  To defeat a motion of summary
 judgment an adverse party may not rest upon mere allegations, but
 must set forth specific facts showing that there is a genuine
 issue of material fact.  To create a genuine issue of material
 fact there must be more than a scintilla of contrary evidence.6
          These same ground rules apply in summary judgment cases
involving  statute-of-limitations  defenses.7   But  such   cases
present  a  procedural  wrinkle: the  task  of  interpreting  and
applying a statute of limitations traditionally falls within  the
province of the courts; so when a factual dispute precludes entry
of  summary  judgment the dispute must ordinarily be resolved  by
the  court  at  a preliminary evidentiary hearing in  advance  of
trial.8
          Here,  Cikan was injured in 1991 and filed suit against
ARCO   nearly  nine  years  later,  in  2000.   Her  claim  would
ordinarily  be barred by the two-year filing limit  for  personal
injury  claims  set out in AS 09.10.070(a).9  But  Cikan  claimed
mental  incompetency.  Under AS 09.10.140(a), mental incompetency
tolls the two-year filing limit.10
          In  its motion for summary judgment, ARCO asserted that
Cikans  suit  was time-barred, arguing that she had presented  no
evidence  of  incompetency.  ARCO also offered  medical  evidence
indicating that Cikan appeared to be mentally competent in  1993.
In  addition, ARCO pointed to Cikans lawsuit against Kalamarides,
insisting  that  her  pleadings in that case provided  conclusive
evidence that she was mentally competent after the accident.
          Because the evidentiary threshold necessary to preclude
the  entry of summary judgment is low,11 Cikan could defeat ARCOs
summary  judgment motion by presenting evidence  of  incompetency
that amounted to more than a scintilla of contrary evidence.12  No
special   or   higher  burden  attaches  to  claims   of   mental
incompetency.  To the contrary, as we pointed out  in  Adkins  v.
Nabors Alaska Drilling, Inc., [c]ourts have interpreted liberally
the  type  of  mental  condition that  will  toll  a  statute  of
limitations.13   We  noted in Adkins that the general  test  [for
incompetency]  is whether a person could know or  understand  his
legal  rights sufficiently well to manage his personal affairs.14
We then emphasized that this test becomes particularly lenient in
the summary judgment context:
               Plaintiffs  have engaged in a surprising
          amount    of   activity   and   still    have
          successfully claimed to be incompetent  under
          a  tolling statute.  This is especially  true
          where a court would be required to hold as  a
          matter   of   law  that  the  plaintiff   was
          competent,  such  as  in a  summary  judgment
          motion  or  motion on the pleadings.   In  at
          least  three cases, plaintiffs have  retained
          attorneys,  commenced actions  prior  to  the
          limitations period and claimed the protection
          of  a  tolling  statute to add an  additional
               party  after the limitations period.   A
          Michigan court noted that a plaintiffs mental
          condition might be such that, while  somewhat
          aware,  he  is  only partially aware  of  the
          circumstances  entitling him to  maintain  an
          action;  such a person may be only  partially
          or  imperfectly able to assist his lawyer  in
          prosecuting the action.[15]
          
          In granting ARCOs summary judgment motion, the superior
court   viewed   Cikans  1995  lawsuit  against  Kalamarides   as
conclusive  evidence of competency.  Yet as we stressed  in  this
passage  of Adkins, prior litigation and representation  are  not
necessarily indicative of mental capacity, since awareness of  an
existing claim does not necessarily reflect a persons ability  to
assess and pursue it in a rational and effective manner.
          Here,  on its face, Cikans complaint in the Kalamarides
lawsuit  evinced  a clear understanding of the operation  of  the
statute  of  limitations.  This undeniably qualifies  as  strong,
even  compelling,  evidence that Cikan met the  Adkins  test  for
competency; yet it is not necessarily conclusive evidence.  If we
credit Cikans sworn account of the circumstances surrounding  the
prior lawsuit  as we must in reviewing the superior courts ruling
on summary judgment  it offers an explanation consistent with her
claim  of  mental disability.  The comparative weakness  of  this
competing  evidence  is  not an issue to be  weighed  at  summary
judgment.
          Nor  does  Dr. Wolfs failure to specifically  say  that
Cikan  was  incompetent  during the years immediately  after  her
accident  preclude his affidavit from qualifying as more  than  a
scintilla  of contrary evidence responding to ARCOs  evidence  of
competency.  In distinguishing Adkins and declining to find  that
case  controlling  here, the superior court emphasized  that  the
medical  experts  affidavits  in Adkins  were  unequivocal.   Yet
Adkins  did  not  rest  its conclusion on the  strength  of  that
medical  evidence.   To  the contrary, as  already  noted  above,
Adkins  expressly emphasized that the test of mental incompetency
is  especially lenient at summary judgment.  Here, if accepted as
true, Dr. Wolfs expert opinion certainly qualifies as substantial
evidence  pointing to the possibility of accident-induced  mental
incapacity; an unequivocal and time-specific diagnosis ruling out
competency was not required to raise a genuine issue of  disputed
fact  on  the  issue.  Because Adkins expressly  recognizes  that
Alaskas incompetency statute does not require a formal finding of
incompetency  by  a  court,16 Adkins cannot  fairly  be  read  as
suggesting  that a formal finding of incompetency by  a   medical
expert is necessary to raise a genuine issue of fact.
          When  considered in the light most favorable to  Cikan,
then,  the totality of the evidence in the record  including  Dr.
Wolfs affidavit, the other affidavits and documentation submitted
by  Cikan,  and Cikans own verified statement  readily meets  the
more than a scintilla of contrary evidence17 standard necessary to
create  a  genuine  issue of material fact as  to  whether  Cikan
became incompetent during the two years immediately following her
          fall.
          ARCO  nevertheless  argues  that  the  affidavits   and
records Cikan attached to her opposition provided no support  for
her claim of incompetency, because they consisted of inadmissible
hearsay  based on lay witness testimonials or did not reflect  on
her condition in the years immediately after the 1991 accident.18
But while this may be correct as to some of the exhibits, not all
the  affidavits can be so easily dismissed.19  Taken together and
viewed  in  the light most favorable to Cikan, these records  and
affidavits provide substantial circumstantial evidence supporting
Dr. Wolfs expert assessment.
          ARCO  separately argues that Cikans allegations against
Kalamarides should be treated as binding judicial admissions that
she  cannot  now  dispute.20  But ARCOs position  overstates  the
binding effect of a judicial admission, which only extends to the
case in which the admission was made: Judicial admissions are not
evidence at all but rather have the effect of withdrawing a  fact
from contention.  Included within this category are admissions in
the  pleadings  in  the  case  .  .  .  .   Ordinary  evidentiary
admissions,  on the other hand, may be controverted or  explained
by the party.  Within this category fall the pleadings in another
case[.]21
          In  summary, because we find ample evidence to raise  a
genuine  issue  of  material fact and no legal justification  for
treating  Cikans  prior  pleadings in  the  Kalamarides  suit  as
currently  binding  admissions, we hold  that  it  was  error  to
dismiss Cikans claim on summary judgment.
          Our   decision  on  this  point  leaves  one   question
unanswered:   how  should  this  factual  dispute   over   mental
incompetency  be  resolved?   In  their  briefing  and  at   oral
argument, both parties seemed to assume that the jury would  have
to  decide  the  issue.  But as we have already indicated  above,
disputes  concerning the statute of limitations raise preliminary
questions of fact that should ordinarily be decided by the  court
after  conducting an evidentiary hearing.  In the  present  case,
then,  the  superior court should conduct a pretrial  evidentiary
hearing   on   remand  to  resolve  ARCOs  statute-of-limitations
defense.22
IV.  CONCLUSION
          We  REVERSE  the  order granting summary  judgment  and
REMAND for an evidentiary hearing to determine if Cikans claim is
time-barred.
FABE, Justice, dissenting.
          Christine  Cikans  slip-and-fall accident  occurred  on
December  17,  1991.   When attorney Joseph Kalamarides  declined
Cikans  request  that  he  handle her workers  compensation  case
related  to the accident, he informed Cikan in writing  that  she
had  only  two  years  from the date of the accident  to  file  a
personal  injury claim against ARCO.  Thus, Cikan was aware  that
she  was required to file suit against ARCO by December 17, 1993.
Yet  Cikan did not file her lawsuit until April 2000.  The  court
concludes that Cikan presented sufficient evidence of her  mental
incompetency  to  defeat ARCOs motion for  summary  judgment  and
prevent  dismissal of her action as time-barred.  But  a  careful
examination  of  Cikans  evidence  reveals  that  she   presented
virtually no evidence of mental incompetency during the  relevant
time  period of 1991-1993.  I therefore disagree with the  courts
decision to reverse the trial courts grant of summary judgment to
ARCO.
          In  Hernandez-Robaina  v. State,  we  focused  on  [a]n
individuals mental capacity to understand his or her rights,  not
whether  the  individual actually understood  or  knew  of  those
rights,  [as]  the  gravamen  of  mental  incompetency  under  AS
09.10.140(a)(2).1   Thus,  it  is  the  individuals  capabilities
whether   Cikan  could  know  or  understand  her  legal   rights
sufficiently well to manage her personal affairs and not  whether
she  did know or understand them  that forms the test for tolling
the  statute  of  limitations due to  mental  incompetency.   The
central  question  is whether the individual  would  be  able  to
comprehend  the  concepts and ideas of which his  or  her  rights
consist if those matters were adequately communicated.2
          Cikan has failed to produce evidence demonstrating that
she  lacked  the mental capacity to understand her rights  during
the  relevant time period of December 1991-1993.  As the superior
court  recognized, Dr. Wolfs affidavit did not state  that  Cikan
was  mentally incompetent or incapable of understanding her legal
rights  from the date of injury in 1991 until the running of  the
statute in 1993.  And while I agree with the court that a  formal
finding  of incompetency by a medical expert is not necessary  to
raise  a genuine issue of material fact,3 Dr. Wolfs diagnosis  of
Cikan  in  2000 with post-concussion symptoms does  not  raise  a
genuine  issue  of  material  fact  as  to  whether  Cikan  could
understand her rights from 1991-1993.
          Moreover, the testimony of Cikans lay witnesses  relied
on  by the court focuses on her inability to function after 1995,
the   year  that  she  filed  the  malpractice  lawsuit   against
Kalamarides.   For example, Jacqueline Sykess testimony  is  that
when  she saw Christine in 1995, she was not the same person that
she  had been in earlier years:  Christine came to see me in 1995
in  California  and I hardly recognized her.   And  Tahni  Warner
Brotherton did not even meet Cikan until the summer of 1992,  six
months  after  her accident, and at that time Cikan  appeared  to
have her life together.  Thus, according to Brotherton, after her
accident  Cikan was employed at Alyeska Ski Resort  and  drove  a
nice  car.  The jewelry and furniture she owned was very tasteful
and  well  kept.  According to Brotherton, [o]ver  the  next  few
          years I watched her lose all of this because she could no longer
work or keep her life together.
          Finally,  there is nothing in the record that  explains
how Cikan could have filed her lawsuit against Kalamarides if she
was mentally incompetent in 1995.  She seems to misunderstand the
Hernandez-Robaina test when she argues that her foolish  strategy
choice  to  sue  Kalamarides should be viewed as a  sign  of  her
ongoing  incapacity and maintains that [t]he very filing of  that
lawsuit shows my mental confusion four years after the accident.
          Although  the threshold showing necessary  to  preclude
entry of summary judgment is extremely low, as evidenced by  this
courts holding in Meyer v. State,4 I cannot agree that Cikan  has
presented  more  than a scintilla of contrary evidence  regarding
her competency for the relevant 1991-1993 time period.   The only
evidence  of  Cikans  mental  state during  this  period  is  the
assessment  of  examining neurologist Dr.  Kenneth  Pervier,  who
concluded that in May 1993 Cikans [m]ental status examination was
entirely  within normal limits and [t]here is no  evidence  of  a
thought  disorder. Given Cikans utter lack of evidence of  mental
incompetency during the relevant period of December 1991-1993,  I
am  unable  to  concur that the superior court should  conduct  a
pretrial  evidentiary  hearing regarding  Cikans  competency.   I
would  affirm  the superior courts grant of summary judgment  and
therefore I respectfully dissent.
_______________________________
     1     Cikan  initially failed to file a timely  response  to
ARCOs  motion;  the  superior court granted summary  judgment  to
ARCO,  noting  that  no opposition had been  filed.   Cikan  then
submitted  an  opposition  and moved to  set  aside  the  summary
judgment   order,  asking  the  court  to  accept  her   untimely
opposition.  The superior court granted Cikans motion, set  aside
the  initial summary judgment order, accepted her opposition, and
ruled anew on the summary judgment motion after allowing ARCO  an
opportunity to reply to Cikans opposition.  On appeal  ARCO  does
not  contest  the superior courts decision vacating  its  initial
summary judgment order and accepting Cikans late opposition.

     2     Mechanical Contractors of Alaska, Inc. v. State,  Dept
of Pub. Safety, 91 P.3d 240, 244 (Alaska 2004).

     3     Alakayak  v. British Columbia Packers, Ltd.,  48  P.3d
432, 447 (Alaska 2002).

     4     See  Philbin  v. Matanuska-Susitna Borough,  991  P.2d
1263, 1265 (Alaska 1999).

     5    Id. at 1265-66 (citations omitted).

     6     Martech  Const. Co. v. Ogden Envtl. Servs., Inc.,  852
P.2d 1146, 1149 n.7 (Alaska 1993) (citation omitted).

     7     See Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1033-34
(Alaska 2002).

     8     Id. at 1034 n.28 (citing Pedersen v. Zielski, 822 P.2d
903,  907 n.4 & 908 (Alaska 1991); Decker v. Fink, 422 A.2d  389,
394  (Md.  Spec. App. 1980); Shillady v. Elliot Cmty. Hosp.,  320
A.2d  637,  639  (N.H. 1974); Lopez v. Swyer, 300 A.2d  563,  567
(N.J. 1973)).

     9    AS 09.10.070(a) provides:

          Except as otherwise provided by law, a person
          may  not  bring  an  action  (1)  for  libel,
          slander,  assault,  battery,  seduction,   or
          false  imprisonment, (2) for personal  injury
          or  death, or injury to the rights of another
          not  arising on contract and not specifically
          provided   otherwise;    (3)   for    taking,
          detaining,  or  injuring  personal  property,
          including   an   action  for   its   specific
          recovery;    (4)   upon  a  statute   for   a
          forfeiture or penalty to the state;   or  (5)
          upon  a  liability created by statute,  other
          than  a  penalty or forfeiture;   unless  the
          action  is commenced within two years of  the
          accrual of the cause of action.
          
     10    AS 09.10.140(a) provides:

          Except as provided under (c) of this section,
          if  a  person  entitled to  bring  an  action
          mentioned in this chapter is at the time  the
          cause of action accrues either (1) under  the
          age of majority, or (2) incompetent by reason
          of  mental illness or mental disability,  the
          time of a disability identified in (1) or (2)
          of  this subsection is not a part of the time
          limit  for  the commencement of  the  action.
          Except  as  provided in (b) of this  section,
          the  period  within which the action  may  be
          brought  is  not extended in any case  longer
          than two years after the disability ceases.
          
     11    Johns Heating Serv., 46 P.3d at 1032.

     12     Meyer  v.  State,  Dept  of  Revenue,  Child  Support
Enforcement Div., 994 P.2d 365, 368 (Alaska 1999).

     13    609 P.2d 15, 23 (Alaska 1980).

     14    Id.

     15     Id. (internal footnote omitted) (quoting Davidson  v.
Baker-Vander  Veen Constr. Co., 192 N.W.2d 312, 319  (Mich.  App.
1971)).
     16    Adkins, 609 P.2d at 23.

     17    Martech Const. Co., 852 P.2d at 1149 n.7.

     18    We note that AS 09.10.140(a) refers to incompetency at
the  time the cause of action accrues.  Here, ARCO has not argued
that  Cikans claim was time-barred as a matter of law because  it
failed to allege incompetency that already existed at the time of
the  accident  or was immediately caused by the  accident.   ARCO
simply  contends  that  Cikan failed to  introduce  any  evidence
raising  a  genuine  issue of material fact  as  to  incompetency
during  the  two years following her accident.  Thus, the  narrow
question  we  consider  in this case is  whether  Cikan  produced
sufficient   evidence  to  raise  a  genuine   question   as   to
incompetency that might have tolled the deadlines for  filing  at
some  point during the two-year limitations period.  We need  not
consider whether AS 09.10.140(a) should be strictly construed  to
cover   only   cases   involving  preexisting   incompetency   or
incompetency   occurring  at  the  moment  an  accident   occurs.
Compare, e.g., Kaiser v. Umialik Ins., 108 P.3d 876, 882  (Alaska
2005)  (incompetence  by reason of mental illness  or  disability
during the limitation period tolls the statute of limitations for
the  duration  of the disability) with Williams v. Coughlan,  244
F.2d  6, 8 (9th Cir. 1957) (precursor to AS 09.10.140 tolled only
by  the  continuance of [a] disability which existed at the  time
the cause of action arose).

     19     For  example, an affidavit submitted by Tahni  Warner
Brotherton  indicates that Brotherton has known Cikan  since  the
summer  of  1992.   She describes how Cikans  life  disintegrated
during  this  period, declaring that [i]t was apparent  that  she
could  not  function at a most basic level.  Brotherton  explains
that  when  she  first met Cikan, she appeared to have  her  life
together.   She was employed at Alyeska Ski Resort  and  drove  a
nice car. . . . Over the next few years I watched her lose all of
this  because she could no longer work or keep her life together.
The   most   basic  life  skills  were  beyond  her   capability.
Similarly, an affidavit submitted by Jacqueline Sykes provides  a
before-and-after view of Cikan.  Sykes states that she met  Cikan
in  1983, when Cikan was managing a restaurant in Anchorage where
Sykes  was a waitress.  She describes Cikan as then being a  very
efficient and effective manager.  Sykes subsequently left Alaska,
and  Cikan visited her in California in 1995.  At the time of the
visit,  Sykes observes, The person who I had known for  12  years
had vanished and in her place [was] a broken person who could not
remember  daily  events  or memories from  the  past.   The  work
records   submitted   by   Cikan  tend   to   corroborate   these
descriptions, indicating that Cikan encountered serious  problems
at  work during 1992-93  including problems with time management,
relations  with other employees, and the explosiveness  of  [her]
temper  and that she was ultimately dismissed in June 1993.

     20     ARCO cites Hayes v. Xerox Corp., 718 P.2d 929, 931-32
(Alaska  1986);  Soo Line R.R. Co. v. St. Louis Southwestern  Ry.
Co.,  125 F.3d 481, 483 (7th Cir. 1997); and 30B Wright & Miller,
Federal Practice & Procedure  7026 (2004).

     21    30B Wright & Miller, Federal Practice & Procedure  7026
(2004); see also Bengtson v. Hines, 457 A.2d 247, 250 (R.I. 1983)
([A]  pleading  in a separate cause of action is merely  a  quasi
admission, which is not conclusive in any sense.  It is merely an
inconsistency in a pleaders proof, which may be treated like  any
other  admission  or  inconsistent  statement  for  purposes   of
impeaching  credibility.) (citations omitted); cf. Universal  Am.
Barge Corp. v. J-Chem., Inc., 946 F.2d 1131, 1142 (5th Cir. 1991)
(judicial admissions are not conclusive and binding in a separate
case  from the one in which the admissions were made); State Farm
Mut.  Auto  Ins. Co. v. Worthington, 405 F.2d 683, 686 (8th  Cir.
1968)  (same); Hughes v. Hughes, 363 P.2d 155, 158  (Okla.  1961)
(The  pleadings in a prior action of the same general  character,
though not conclusive upon a party, are of evidentiary force in a
subsequent proceeding.).

     22    Our reversal of the summary judgment order necessarily
vacates  the  superior courts award of attorneys  fees  to  ARCO,
making Cikans separate challenge to the fee award moot.

1    849 P.2d 783, 785 (Alaska 1993).

     2    Id.

     3    Slip Op. at 11.

     4      Meyer  v.  State,  Dept  of  Revenue,  Child  Support
Enforcement Div., 994 P.2d 365, 368 (Alaska 1999).