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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hagen Insurance, Inc. v. Roller (01/20/2006) sp-5975

Hagen Insurance, Inc. v. Roller (01/20/2006) sp-5975, 139 P3d 1216

     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


HAGEN INSURANCE, INC., )
) Supreme Court Nos. S- 11256/11275
Appellant/Cross-Appellee, )
) Superior Court No. 3AN-01-12684 CI
v. )
) O P I N I O N
RANDAL ROLLER, d/b/a THE )
GLASSMAN, ) [No. 5975 - January 20, 2006]
)
Appellee/Cross-Appellant. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Gregory  G.  Silvey,  Gary   A.
          Zipkin,  and   Michelle D. Higuchi,  Guess  &
          Rudd  P.C.,  Anchorage, for  Appellant/Cross-
          Appellee.  Thomas L. Melaney, Anchorage,  for
          Appellee/Cross-Appellant.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          A  jury  awarded  Randal Roller damages  against  Hagen
Insurance,  Inc. after finding that Hagen negligently  failed  to
secure  workers  compensation  insurance  for  Rollers  business,
leaving Roller without coverage for an on-the-job injury.   Hagen
challenges  various  rulings of the superior  court,  and  Roller
cross-appeals.   We  affirm.  Because there was  evidence  Hagens
negligence caused Roller to suffer a denial of medical treatment,
it  was  not error to submit Rollers emotional distress claim  to
the  jury, whether or not there was evidence Rollers distress was
severe.   We also conclude that the superior court did not  abuse
its  discretion in its rulings concerning Rollers expert witness,
and that the lack of a permanent impairment rating did not render
Roller   ineligible   for   damages  replacing   future   workers
compensation benefits.  Finally, because there was no evidence of
reckless indifference or malice, the superior court did  not  err
in  granting  Hagens  motion  for  directed  verdict  on  Rollers
punitive damages claim.
II.  FACTS AND PROCEEDINGS
          Randal Roller, d/b/a The Glassman, worked as a glazier.
In  October  2000  he  and his wife, JoAnne Roller,  applied  for
workers compensation insurance through Hagen Insurance, Inc.  But
various problems, including Hagens alleged negligence in securing
the  coverage, prevented the coverage from taking timely  effect.
The Rollers testified at trial that, following a December 1, 2000
meeting  with Hagens Don Simmons and Cynthia Haynes during  which
the  Rollers  filled out a new application, they  understood  the
insurance coverage to be effective either immediately  or  as  of
the  next business day (December 4, a Monday).  But according  to
Hagen,  its representative had explained that Hagen did not  know
when  the coverage would  become effective because it had to wait
for  the  premium financing to be approved.  The actual effective
date turned out to be December 12.
          On  December 7, 2000 Roller hurt his back when he  fell
from  a  ladder while at work.  JoAnne Roller called  Simmons  to
report   the  injury  before  Roller  sought  medical  treatment.
Because the policy had not yet taken effect, Simmons informed her
there  was  no  coverage.   Due to a  lack  of  personal  medical
insurance,  the  Rollers were forced to pay  for  Randal  Rollers
medical  treatment.  Randal Roller sued Hagen in  December  2001,
alleging  that  Hagen  was  negligent in  its  failure  to  place
Plaintiffs insurance coverage with a qualified underwriter.
          Superior Court Judge Sen K. Tan presided over the  jury
trial  of  Rollers claims.  The superior court granted a directed
verdict to Hagen on Rollers punitive damages claim, but submitted
Rollers remaining claims to the jury.  The jury found for  Roller
on  those  claims, determining that Hagen was negligent and  that
its  negligence was a legal cause of injury to Roller.  The  jury
found  damages  totaling $275,818.18, including $6,250  for  past
medical expenses, $42,000 for future medical expenses, $2,090 for
future  entitlements  to periodic payments,  $31,700  for  future
entitlement  to retraining expenses, $143,778.18  for  past  non-
economic  loss,  and $50,000 for future non-economic  loss.   The
jury  apportioned eighty-eight percent fault to Hagen and  twelve
percent fault to Roller, for a net verdict of $242,720.
          Hagen and Roller both appeal.
III. DISCUSSION
     A.   Standard of Review
          Decisions  to  admit expert testimony are reviewed  for
abuse  of  discretion.1 When reviewing a denial of a  motion  for
either  a  directed  verdict  or a judgment  notwithstanding  the
verdict,  the  court  must  decide  whether  the  evidence,  when
examined  in the light most favorable to the nonmoving party,  is
          such that reasonable persons could not differ in their judgment.2
The  standard  is  the  same when we review  the  granting  of  a
directed  verdict.3   We  review  questions  of  law  using   our
independent judgment, adopting the rule of law most persuasive in
light of precedent, reason, and policy.4
     B.   Emotional Distress Damages
          Hagen  argues that the superior court should  not  have
instructed  the jury on the emotional distress claim  and  should
have  granted Hagens motions for a directed verdict  or  judgment
notwithstanding the verdict on the issue because Roller presented
insufficient  evidence to support an award of emotional  distress
damages.   Hagen  also asserts that the superior court  erred  in
allowing  Roller  to  pursue emotional distress  damages  because
Hagen  had no timely notice of such a claim and therefore had  no
opportunity to defend against it.
          The jury was instructed that Roller was seeking damages
for  non-economic  losses  for emotional  distress  and  physical
anxiety.  Rollers appellate brief and oral argument refer to  the
emotional  distress  claim  as one for  negligent  infliction  of
emotional distress (NIED).5  NIED claims differ from typical non-
economic damages claims in that NIED damages may be awarded  even
if the claimant suffers no physical injury.  But NIED damages may
only  be awarded in certain narrow circumstances and only if  the
emotional  distress is serious or severe.6    Hagen  argues  that
there was no evidence the distress was severe.
          Notwithstanding   Rollers   characterization   of   his
emotional distress claim as an NIED claim, he reasons here, as he
did  below,  that  his distress was caused by delays  in  getting
medical  treatment  and that these delays  were  attributable  to
Hagens negligence.  Thus described, his mental distress claim  is
simply  derived from his claim that Hagen prolonged his  physical
injury.   If  we  conclude  that there is  evidence  that  Hagens
negligence caused physical injury to Roller by delaying treatment
of  his  injury,  we  can affirm the award of emotional  distress
damages  as derivative non-economic damages.7  If so, we  do  not
need  to  determine whether the special requirements of  an  NIED
claim were met.
          1.   The  jury  could  have found that Hagen  prolonged
               Rollers  physical injury, justifying  non-economic
               damages.
               
          Hagen  did  not cause Rollers fall from the ladder  and
the physical injuries directly and immediately resulting from the
fall.  Roller would have suffered some physical injury regardless
of  whether  he  was  covered by workers compensation  insurance.
Thus, the first question is whether there is evidence that Hagens
negligence prolonged Rollers physical injuries in some way.
          The  absence  of  workers  compensation  insurance  for
Roller when he fell from the ladder could have been a legal cause
of  physical  injury in at least two different ways.   First,  it
could  have  prevented him from receiving medical treatment  that
would  have  been covered by workers compensation  insurance  and
that  would have ameliorated physical consequences of  his  fall.
Second,   it  could  have  forced  Roller  to  return   to   work
          prematurely, delaying or preventing his recovery from the
physical injuries caused by the fall.8
          Roller argues here that he claimed damages for NIED  as
a  result  of  the denial of medical treatment for  very  serious
injuries  for  more  than  two  years,  which  denial   the  jury
concluded  was proximately caused by Hagens negligent failure  to
promptly  place insurance coverage.  Roller also argues  that  if
the  workers compensation coverage had been properly placed, [he]
would [have] enjoy[ed] medical coverage for treatment to mitigate
the  effects of the injury, but [b]ecause of a lack of  financial
resources,  [he] had been denied treatment of this condition  for
more  than two years at the time of trial.  He made the  same  or
similar arguments below, both in opposing Hagens directed verdict
motion  and  in asking the jury to award emotional  distress  (or
mental distress) damages.
          There was ample evidence that would have permitted  the
jury  to find that the Rollers were financially strapped and that
they  were personally paying for medical services that would have
been  covered  by workers compensation insurance.   For  example,
JoAnne Roller testified at length regarding the medical bills she
and  her  husband  had  paid.   The evidence  is  less  clear  in
establishing  that  Roller would have seen  other  physicians  or
received  other  treatment had insurance  been  properly  placed.
JoAnne  Rollers testimony indicates that her husband was able  to
see four different doctors and underwent sensory testing, an MRI,
X-rays,  and  physical therapy.  This evidence  might  permit  an
inference that he was not denied appropriate care.
          But there was also evidence that would have justified a
contrary  inference. Roller was also seen by Dr. John Duddy,  who
testified   by  deposition  that  although  spinal  decompression
surgery  was  not  then necessary, it could become  necessary  if
Roller  suffered  a  significant flare-up or  exacerbation.   Dr.
Duddy also testified that such a procedure was almost certain  to
relieve Rollers pain and indicated that it would be Rollers  call
whether  or not to have the surgery.  Rollers visit to Dr.  Duddy
was  in  November  2002;  thus, Roller  did  not  learn  of  this
potential  course of treatment until nearly two years  after  his
December  7  fall.  There was no evidence that lack of  insurance
delayed Roller from seeing Dr. Duddy.  But when asked at trial in
May  2003  why he had not undergone the surgery outlined  by  Dr.
Duddy,  Roller  responded: [I]ts strictly financial.   Weve  paid
about  all we can in doctor bills so far, and its a big chunk  to
pay for the surgery.  Roller also  testified that he had not only
considered whether to have the surgery, but he was going to  have
to  have  it.   I cant continue the way it is.  Its deteriorating
rapidly.   Likewise, he testified that its gotten  to  the  point
where I know I need to do it.  JoAnne Roller testified about  her
research  into  the likely costs of the surgery outlined  by  Dr.
Duddy  but  did  not testify that her husband was prevented  from
undergoing the procedure due to lack of insurance.  Instead,  she
testified  that Dr. Duddy told Randy that at some  point  he  was
going  to  have  to  have some fusion done  to  his  lower  back.
Because we dont have health insurance, the financial implications
are  very important, and I needed to know how much money  it  was
          going to cost to get Randys back back in working order.
          This  testimony  implies that  the  Rollers  could  not
afford  to pay for the surgery without insurance.  And,  although
contrary  inferences are certainly possible,  we  must  take  all
permissible  factual inferences in favor of the  Rollers  on  the
issue.9   The  testimony  consequently  permits  inferences  that
Roller would have chosen to undergo before trial the surgery  Dr.
Duddy  proposed,  but  that the absence of  workers  compensation
insurance caused him to forgo the surgery.  It is not clear  from
the  testimony  when  Roller  first decided  that  this  proposed
surgery  was  necessary.  But he saw Dr. Duddy about  six  months
before  Roller  testified at trial.  The  jury,  considering  the
testimony   of  both  Rollers,  could  have  found  that   Hagens
negligence  delayed  the  surgery by  some  months.   This  delay
therefore prolonged the physical injury Roller suffered  when  he
fell.
          There  was  also  evidence that the  Rollers  financial
condition  required Roller to return to work even though  he  had
not  recovered.10  There was evidence that Roller would have been
eligible  for  both  monthly disability  benefits  of  about  one
thousand  dollars had the insurance been obtained and  retraining
benefits  that might have allowed him to work in a less stressful
occupation.   From this the jury could have reasoned that  Hagens
negligence contributed to the duration of Rollers physical injury
and to the discomfort it caused him.
          Because  the  evidence would have allowed the  jury  to
find  that  Hagens negligence caused physical injury  to  Roller,
Roller was eligible for an award of non-economic damages for  his
emotional distress.
          2.   Hagen failed to preserve the lack-of-notice issue.
          Hagen  argues that, because it had no timely notice  of
the  emotional  distress claim and therefore  no  opportunity  to
defend  against it, the superior court erred by permitting Roller
to  pursue  the  claim.  On May 13, nine days  before  the  court
circulated  the  jury  instructions it intended  to  use,  Roller
requested a non-economic damages instruction based on a claim  of
pain  and  suffering.   On  the day the  court  issued  its  jury
instructions,   Roller   proposed  a  new  non-economic   damages
instruction  that specifically mentioned emotional  distress  and
physical  anxiety.  It did not refer to pain and suffering.   The
courts non-economic damages instruction adopted this new proposed
instruction.
          To  the extent Hagen is arguing that it did not receive
adequate  notice  that Roller was pursuing  an  NIED  claim,  its
argument  is mooted by our ruling above that Roller was  actually
asserting a derivative claim for non-economic damages.
          To  the extent Hagen is arguing broadly that it did not
have  adequate  notice  that Hagen would be seeking  non-economic
damages,  it  did  not  preserve this argument.   Although  Hagen
objected  to the courts non-economic damages instruction  because
it  permitted an award of emotional distress damages,  Hagen  did
not  explain  the  ground for its objection.  Almost  immediately
thereafter  Hagens counsel moved for a directed  verdict  on  the
claim  on the sole ground that the evidence was insufficient  for
          an emotional distress claim.  Hagen does not argue on appeal that
it  objected on grounds of lack of notice,11 and the record  does
not  show that Hagen raised lack of notice as an objection to the
emotional  distress instruction or to Rollers original (pain  and
suffering)  proposed non-economic damages instruction.12   Hagens
directed  verdict  and JNOV motions did not argue  that  lack  of
notice  barred  an emotional distress award. Hagen therefore  did
not preserve the lack-of-notice issue for appeal.
          Roller  did not unequivocally assert at trial  that  he
was  seeking non-economic damages stemming from physical  injury.
And  he continues to characterize the non-economic damages  award
as  an  NIED  award.   But  he also argued  that  the  claim  was
justified  by the treatment delays.  Hagen had sufficient  notice
of the possibility of derivative non-economic damages to mount an
adequate  defense.   Roller previously  proposed  a  non-economic
damages instruction for pain and suffering.  Rollers trial  brief
requested  non-economic damages to be determined in view  of  the
seriousness  of  [Rollers] injuries.  Rollers  original  proposed
instruction  and  trial  brief should  have  alerted  Hagen  that
Rollers  non-economic damages claim was not  necessarily  a  true
NIED claim.  And although Hagen argued at trial that evidence  of
serious  or  severe emotional distress was a prerequisite  to  an
award  on  the  claim, Roller never agreed that his  non-economic
damages  claim  depended  on whether  there  was  such  evidence.
Furthermore,  although neither Rollers substitute instruction nor
the courts instruction required Roller to prove serious or severe
emotional distress to recover non-economic damages, Hagen did not
object  to  the instruction on a theory it omitted an element  of
proof essential to an NIED award.  As given, the instruction  was
consistent with a mental distress claim derivative from  a  claim
for  physical  injury, and was not consistent with  a  true  NIED
claim.    Finally, the comments of the superior court imply  that
it recognized that evidence of serious or severe distress was not
necessary  if  the jury could find that Hagen negligently  caused
physical  injury  to  Roller  by delaying  medical  treatment  or
benefits  he  would have received if the requested insurance  had
been in place.
          We  also  note  that  there is  no  indication  Rollers
characterization   of  the  claim  put  Hagen   at   a   tactical
disadvantage.  Whether Hagen believed the claim was for  NIED  or
other  non-economic  damages, it had ample incentive  to  dispute
Rollers claim of mental distress.
     C.   Expert Testimony of William Erwin
          William  Erwin, a lawyer with extensive  experience  in
dealing with Alaskas Workers Compensation Act,13 testified as  an
expert  for Roller.  Over Hagens objections, Erwin was  permitted
to testify about the benefits Roller would have been entitled to,
assuming he qualified for them; Erwin was also allowed to express
an   opinion  that  Roller  would  suffer  a  permanent   partial
impairment  if he underwent the surgery described by  Dr.  Duddy.
Hagen challenges Erwins testimony on several grounds.
          1.   Allowing   Erwin   to   testify   about    workers
               compensation law in Alaska
               
          Before  trial Hagen filed a motion in limine to exclude
Erwins  testimony;  the grounds included a  contention  that  the
proposed testimony would merely instruct the jury on the  law,  a
function  reserved for the court.  The superior court ruled  that
Erwin  would not be allowed to testify about what the law is  but
would be able to testify about mixed question[s] of law and  fact
such  as  how  benefits are calculated under the laws provisions.
The superior court concluded that such testimony would assist the
jury in computing damages.
          Generally, [e]xpert testimony that states an opinion on
the  current status of the law on a particular subject . .  .  is
almost  always excluded because it is not helpful to the  jury.14
However,  some  courts  will  allow testimony  on  certain  mixed
questions of law and fact,15 particularly when complex  areas  of
law  are involved such as insurance, tax, or patent law.16  Given
the potential complexity of the benefit calculations, we conclude
that Erwins testimony could have provided appreciable help to the
jury in calculating damages.17  Moreover, as one court has pointed
out, although witnesses generally should not be permitted to give
their  opinions on questions of domestic law, this rule does  not
apply  where the legal issue is raised in such a manner  that  it
becomes  an  operative fact to be proven within the case.18   The
benefits   Roller   would  have  received   under   the   workers
compensation  law raised a question of fact for the jury  because
they  were  relevant to the measure of compensatory damages.   We
conclude that the superior court did not abuse its discretion  in
allowing Erwin to testify about how benefits are calculated under
the Alaska Workers Compensation Act.
          2.   Allowing Erwin to apply the law to the facts

          Hagen also argues that Erwins testimony inappropriately
applied  the  law  to  the  facts,  thereby  invading  the  jurys
province.   Apart  from the permanent impairment issue  discussed
below,  Erwins  testimony  concerned  the  mechanics  of  benefit
calculation under Alaskas workers compensation regime, had Roller
been entitled to them.  As discussed above, the jury had not been
asked  to  decide whether Roller should actually receive  workers
compensation benefits; rather it was to determine the  amount  of
damages  resulting  from  Hagens  negligence.   Erwins  testimony
therefore did not infringe on the province of the jury.  Instead,
it  aided  the jury by providing a computation of the  amount  of
benefits  Roller  might have received had Hagen  properly  placed
insurance.   Our holding should not be interpreted as encouraging
lawyers to become all-purpose experts.  But the circumstances  of
this case made the ruling a permissible discretionary choice.
          3.   Allowing  Erwin  to express an  opinion  that  the
               proposed  surgery  would  result  in  a  permanent
               impairment rating
               
          Hagen contends that it was error to allow Erwin to give
his opinion that Roller would suffer a permanent impairment if he
underwent  the  surgery described by Dr. Duddy.   Hagen  contends
          that [t]his testimony was improper and misled the jury because
Erwin  is  not a doctor and was therefore not qualified to  opine
about  Mr.  Rollers  probable impairment  rating  after  surgery.
Hagen  points  out  that  no  doctor offered  testimony  about  a
potential  impairment rating and indeed that no medical  evidence
established that Mr. Roller needed future surgery.  Therefore, in
Hagens  view, Erwin had no basis for his opinion even if he  were
qualified  to  give  it.   We  conclude  that  Erwin  was  indeed
qualified  to  provide  such  an  opinion  and  that  there   was
sufficient evidence to support it.
          Past decisions support the superior courts ruling.   In
Little Susitna Construction Co. v. Soil Processing, Inc. we  held
that  it  was not an abuse of discretion to allow a witness  with
thirty  years of construction experience in Alaska to qualify  as
an  expert  witness  regarding the  impact  of  cold  weather  on
construction equipment, observing that a witness can be qualified
as  an expert on the basis of experience alone.19  In Osborne  v.
Hurst  we held that it was not an abuse of discretion to allow  a
real  estate broker to express an opinion about the  value  of  a
specific parcel of property despite the defendants argument  that
the  witness  had  no training as a real estate appraiser.20   In
reaching  our  conclusion we cited the witnesss familiarity  with
evaluating property.21
          Erwin,  like the experts in Little Susitna and Osborne,
has  extensive experience concerning the subject of his contested
opinion.   He  is  not  a physician and of  course  cannot  issue
impairment ratings himself, but there was evidence he has  nearly
forty  years  of experience working with clients seeking  workers
compensation  benefits and he testified that he is very  familiar
with  the  guidelines  doctors use when  issuing  ratings.22   We
conclude   that   this  knowledge  and  experience   sufficiently
qualified  Erwin  to  predict  whether  Roller  would  suffer   a
permanent impairment if he underwent the surgery.  Moreover,  the
superior court allowed Erwin to express the contested opinion  on
the  condition  that it was consistent with Dr. Duddys  testimony
and informed Hagen that it could move to strike Erwins opinion if
it were inconsistent.  Hagen made no motion to strike.
          Hagens   reliance  on  Timmons  v.  Massachusetts   Bay
Transportation Authority23 is not persuasive.  The  Massachusetts
Supreme  Judicial Court there ruled that it was  improper  for  a
vocational rehabilitation counselor to assume that the plaintiffs
injuries  would  be  permanent because  such  an  assumption  was
outside  the area of the experts expertise and was not  supported
by any evidence in the record before [the] court.24  We concluded
above that Erwin was sufficiently qualified to offer the opinion.
          We  also  conclude  that there is  a  more  substantial
evidentiary basis for an opinion of permanency than there was  in
Timmons.   There the only evidence supporting such  a  conclusion
was a chiropractors statement that the plaintiff may continue  to
experience  episodes  of low back pain . . .  for  an  indefinite
period of time.25  Here Dr. Duddy testified that [m]ost people who
have  lumbar  surgery to this extent are restricted to  light  to
medium  work  . . . .  It is reasonable, as Roller  contends,  to
infer  from  Dr.  Duddys testimony about post-surgery  functional
          limitations that Dr. Duddy expected Rollers condition to be
permanent  in nature.  Erwin was also justified in assuming  that
Roller  would  undergo the surgery outlined by Dr.  Duddy.   Even
though Dr. Duddy did not testify that the procedure was currently
necessary, he did indicate that the surgery would be performed if
Roller  chose  to  undergo  it  in  order  to  relieve  pain  and
suffering. Roller testified that its gotten to the point where  I
know I need to do [the surgery].
          Accordingly,  we conclude that the superior  court  did
not  abuse  its discretion in allowing Erwin to offer an  opinion
that  Roller  would  suffer  a permanent  impairment  within  the
meaning of the applicable guidelines if he underwent the proposed
surgery.
     D.   Future Workers Compensation Benefits
          Hagen  argues that the superior court should  not  have
permitted  an  award  for  future workers  compensation  benefits
because Roller did not demonstrate that he was reasonably  likely
to  incur  those damages in the future.  Because Roller  did  not
have  a  permanent impairment rating, Hagen asserts, the superior
court  should  not  have instructed the jury  on  future  workers
compensation  benefits.  Hagen cites Rydwell v. Anchorage  School
District26  for the proposition that an impairment  rating  is  a
prerequisite to obtaining future benefits.
          It  is  true  that  to be eligible for  benefits  under
Rydwell,  a  claimant  must  have a permanent  impairment  rating
exceeding zero once medical stability is reached.27  Roller  does
not  dispute  this  point.  He instead argues that  the  evidence
demonstrated that he was likely to receive a permanent impairment
rating  once  he  reached  medical stability  by  undergoing  the
surgery  outlined  by  Dr.  Duddy.  We  agree  with  Roller  that
requiring  him  to have actually received a permanent  impairment
rating  would  allow  Hagen to profit  from  its  own  negligence
because  it is unlikely that the Rollers could afford the surgery
without insurance.  Roller sought damages to replace the benefits
he   would  have  been  likely  to  receive.   It  was  therefore
appropriate  for the superior court to submit this issue  to  the
jury,  because  reasonable persons could find that  it  was  more
likely  than not that Roller would receive a permanent impairment
rating once he reached medical stability after surgery.
     E.   Punitive Damages
          In granting Hagens directed verdict motion on the issue
of  punitive damages, the superior court ruled that there were no
issues  of  material fact regarding conduct that would amount  to
maliciousness,  hostility, recklessness,  manifest  indifference.
Roller argues that this ruling was erroneous.  First, he contends
that  Hagens  handling  of  his October  application  constituted
reckless  indifference.  Second, he suggests that  Hagen  changed
the  effective  date on the December application to  support  its
version of the transaction.
          We  have stated that [t]o recover punitive damages, the
plaintiff  must prove by clear and convincing evidence  that  the
defendants conduct was outrageous, such as acts done with malice,
bad  motives,  or  reckless  indifference  to  the  interests  of
another. 28  Further, [i]f there is no evidence giving rise to an
          inference of actual malice, or reckless indifference equivalent
to  actual malice, the trial court need not submit the  issue  of
punitive  damages to the jury.29  The jury found that  Hagen  was
negligent  in  procuring  insurance  coverage  for  Roller.   But
however  incompetent or negligent Hagens conduct may  have  been,
there is no evidence that Hagen intended to injure Roller or that
it knew Roller would be injured as a result of its actions.30
          Only  with  respect  to the dispute over  the  original
effective  date of the December application could Hagens  conduct
even  arguably have met the reckless indifference standard.   The
application  submitted at trial contained a handwritten  date  of
December  12.   Roller  apparently contends  that  the  date  was
changed  to  undermine his case and to support Hagens  contention
that  the  Rollers  knew  it would be  several  days  before  the
coverage  actually took effect.  In Rollers view,  this  scenario
raises the prospect of outrageous conduct.
          Don  Simmons  testified that the applications  original
effective  date was December 10, selected in order  to  match  up
with the premium finance agreement.  This agreement was signed by
Roller  at the December 1 meeting and indicates that the  policys
effective date was December 10.  December 10 also appeared as the
policys  effective date in a fax-a-quote sent  to  the  financing
company by Simmons immediately before the December 1 meeting.
          The Rollers testified that after the December 1 meeting
they  believed the coverage would be effective the next  business
day (December 4) but did not provide any specific testimony about
the  original  date set out in the application.  They  could  not
recall  any  discussion about the effective date, nor could  they
recall  seeing  the  December  10 date  on  the  premium  finance
agreement.   In  comparison, Simmons and another Hagen  employee,
Cynthia  Haynes,  both testified that the Rollers  were  informed
several  times during the December 1 meeting that coverage  would
not  become  effective until premium financing was  obtained  and
that it was not known when that would occur.
          Roller  asserts  that Hayness testimony  corroborate[s]
the  Rollers  testimony and that Haynes testified  the  effective
date  upon execution was likely December 1, 2000.  This does  not
accurately describe Hayness testimony.  Haynes actually testified
that  she  could  not recall the original date  of  the  December
application,  although she did indicate that [i]f [the  computer-
printed  application] automatically included a  date  that  wasnt
manually typed in, it wouldve put 12/1.  Such testimony does  not
indicate that an original date of December 1 was likely, nor does
it corroborate the Rollers contention that the effective date was
December  4.   It simply points out that Hagens computer  program
automatically inserts the date the application was printed as the
effective   date   if   that  date  is  not   manually   changed.
Accordingly, Simmonss testimony that December 10 was the original
date  is the only direct evidence concerning the actual date that
appeared in the application before it was changed.
          Haynes  testified that on December 11 she  changed  the
applications  effective date to December 12 because  the  premium
financing  funds were received on December 11 and the underwriter
would  not  bind  coverage  until  twenty-four  hours  after  the
          completed application is submitted.  This testimony was
corroborated  by Don Simmons.  Hagen argues that  this  testimony
indicates  that  the effective date was changed for  a  perfectly
logical  and  appropriate (and uncontroverted) purpose.   Indeed,
Roller  cites  no  evidence  that  suggests  Hagen  changed   the
effective date to undermine Rollers case. We discern no malice or
reckless  indifference on the part of Hagen.  The superior  court
therefore did not err by granting the directed verdict motion  on
the issue of punitive damages.
IV.  CONCLUSION
          For these reasons, we AFFIRM the judgment.
_______________________________
     1     Barrett  v.  Era  Aviation, Inc., 996  P.2d  101,  103
(Alaska 2000) (citing City of Fairbanks v. Nesbett, 432 P.2d 607,
611-12 (Alaska 1967)).

     2     Bobich  v. Stewart, 843 P.2d 1232, 1235 (Alaska  1992)
(citing  City  of Whittier v. Whittier Fuel & Marine  Corp.,  577
P.2d 216, 220 (Alaska 1978)).

     3     Chizmar  v.  Mackie, 896 P.2d 196, 200  (Alaska  1995)
(upholding  directed verdict denying plaintiffs punitive  damages
claim).

     4     Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593,
597 (Alaska 2004).

     5     Roller  initially submitted a proposed instruction  on
non-economic losses for pain and suffering, loss of enjoyment  of
life,  physical impairment and inconvenience resulting  from  the
injury.   Roller  apparently replaced this  proposed  instruction
with  a new instruction filed on the last day of trial requesting
non-economic damages for emotional distress and physical anxiety.
At  oral  argument before us, Roller could provide no explanation
for this substitution.

     6     Kallstrom  v. United States, 43 P.3d 162, 165  (Alaska
2002)  (citing  Hancock v. Northcutt, 808 P.2d 251,  257  (Alaska
1991)); Chizmar, 896 P.2d at 204.  Alaska only allows NIED claims
if  the  victim  is  a bystander who directly witnesses  physical
injury  or if the victim is owed a preexisting legal duty by  the
tortfeasor.   Kallstrom, 43 P.3d at 165-66 (citing  Chizmar,  896
P.2d at 203; Tommys Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038,
1043 (Alaska 1986)).

     7      Prosser   and   Keeton  describe  emotional   damages
accompanying  claims  involving  physical  injury  as   parasitic
damages.  W. Page Keeton et al., Prosser and Keeton on Torts   54
(5th ed. 1984).  We use the term derivative instead.

     8     The  superior  court  noted this  possibility  in  its
September  16,  2003  order denying Hagens  motion  for  judgment
notwithstanding  the verdict: [T]he evidence is  clear  that  the
Rollers  did  not  have financial resources to  pay  for  medical
treatment  or  to  allow  Roller time  to  recuperate.  (Emphasis
added.)

     9     Gretchell  v.  Lodge, 65 P.3d 50,  52  (Alaska  2003);
Breitkreutz v. Baker, 514 P.2d 17, 19 (Alaska 1973).

     10    Roller testified that he was still working to the best
I can.  He continued: Im a sole  sole, you know, provider for the
household, and I  I bull through it.

     11    Alaska Civil Rule 51(a) provides in part:  No party may
assign  as error the giving or the failure to give an instruction
unless  the  party  objects thereto before the  jury  retires  to
consider its verdict, stating distinctly the matter to which  the
party objects and the grounds of the objection.

     12      The  parties  apparently  discussed  proposed   jury
instructions  with  the  superior  court  during  an   unrecorded
session.    Our   disapproval  of  off-the-record   instructional
discussions is long-standing and was recently reiterated in Reust
v.  Alaska Petroleum Contractors, Inc., __ P.3d __, Op. No.  5951
at  12, 2005 WL 2812745 (Alaska, Oct. 28, 2005); see also City of
Nome  v.  Ailak,  570 P.2d 162, 166 n.4 (Alaska 1977);  State  v.
Abraham, 566 P.2d 267, 269 (Alaska 1977); State v. Buckalew,  561
P.2d  289, 292 (Alaska 1977); Ervin v. State, 761 P.2d  124,  126
n.2  (Alaska App. 1988).  Hagen does not contend that it asserted
a  lack-of-notice  objection  to the emotional  distress  damages
instruction at the unrecorded instruction session.

     13    AS 23.30.005 et seq.

     14    David H. Kaye et al., The New Wigmore: Expert Evidence
1.4, at 18 (2004) (quoting Maury R. Olicker, The Admissibility of
Expert  Witness Testimony: Time to Take the Final  Leap?,  42  U.
Miami  L.  Rev. 831, 864 (1988)).  See also Alaska R.  Evid.  702
(providing  that expert witness may give opinion [i]f scientific,
technical, or other specialized knowledge will assist  the  trier
of  fact  to understand the evidence or to determine  a  fact  in
issue . . .).

     15    Kaye, supra note 14 at 21.

     16    Id. at 21-22.

     17    Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1088
(Alaska  2001)  (quoting Osborne v. Hurst, 947  P.2d  1356,  1362
(Alaska  1997)) (stating that the true criterion for  determining
whether  a person qualifies as an expert is whether the jury  can
receive  appreciable  help from this particular  person  on  this
particular subject ).

     18     Crookham  v. Riley, 584 N.W.2d 258, 267  (Iowa  1998)
(citations  omitted).  This situation arises most  frequently  in
the  context  of  attorney malpractice cases.  See,  e.g.,  Kaye,
supra  note  14  at  22 ([E]xpert testimony on  the  law  may  be
necessary  for  juries  to render competent  decisions  in  legal
malpractice  cases.); Franch v. Ankney, 670 A.2d  951,  956  (Md.
1996)  (Because an expert opinion on the standard of care  in  an
attorney  negligence  case  is  often  based  upon  the   experts
interpretation of the law, experts in such cases may state  their
opinion  on  the  law as a foundation for their  opinion  on  the
standard of care.).

     19     Little Susitna Constr. Co. v. Soil Processing,  Inc.,
944 P.2d 20, 27-28 (Alaska 1997).

     20    Osborne v. Hurst, 947 P.2d 1356, 1361-62 (Alaska 1997).

     21    Id. at 1362.

     22     AS  23.30.190(b) provides: All determinations of  the
existence  and  degree  of  permanent impairment  shall  be  made
strictly and solely under the whole person determination  as  set
out  in the American Medical Association Guides to the Evaluation
of Permanent Impairment . . . .

     23     Timmons  v. Mass. Bay Transp. Auth., 591  N.E.2d  667
(Mass. 1992).

     24    Id. at 669 (emphasis added).

     25    Id. at 671.

     26     Rydwell  v. Anchorage Sch. Dist., 864 P.2d  526,  531
(Alaska  1993) (upholding superior courts denial of  reemployment
benefits  because  claimant received a rating of  zero  permanent
impairment).

     27    Id. at 529.

     28     Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 846
(Alaska  2001)  (quoting Chizmar v. Mackie,  896  P.2d  196,  210
(Alaska 1995)).  See also AS 09.17.020(b).

     29     Robles, 29 P.3d at 846 (citing Alyeska Pipeline Serv.
Co. v. OKelley, 645 P.2d 767, 774 (Alaska 1982)).

     30     See  id. at 840, 846 (affirming dismissal of punitive
damage  claim  regarding  negligent training,  safe  handling  of
propane tanks, and failure to warn).

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