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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
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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