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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. C.J. v. State, Dept. of Corrections (12/15/2006) sp-6081

C.J. v. State, Dept. of Corrections (12/15/2006) sp-6081, 151 P3d 373

     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,


C.J., )
) Supreme Court No. S- 11298
Petitioner, )
) Superior Court No.
v. ) 3AN-99-08349 CI
CORRECTIONS, ) No. 6081 - December 15, 2006
Respondent. )
STATE OF ALASKA,              )
DEPARTMENT OF            )    Supreme Court No. S-11300
CORRECTIONS,                  )
             Petitioner,           )
     v.                       )
C.J.,                              )
             Respondent.      )

          Petitions for Review from the Superior  Court
          of   the  State  of  Alaska,  Third  Judicial
          District,   Anchorage,  Sharon  L.   Gleason,

          Appearances:   Kirsten   Tinglum    Friedman,
          Christine S. Schleuss, and Margaret Simonian,
          Friedman,  Rubin  &  White,  Anchorage,   for
          Petitioner/Respondent     C.J.      Stephanie
          Galbraith Moore, Assistant Attorney  General,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General,  Juneau,  for  Respondent/Petitioner
          State of Alaska.

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

          FABE, Justice.
          BRYNER,   Chief   Justice,   concurring   and
          CARPENETI, Justice, concurring and dissenting.
          MATTHEWS, Justice, dissenting in part.

          The  rape  victim  of  a parolee  sued  the  State  for
negligent parole supervision.
The State sought summary judgment on the grounds that (1) it owes
no  duty  of care in supervising parolees; (2) it is immune  from
suit;  and (3) it is entitled to judgment as a matter of  law  on
the  issue of causation.  We conclude that the State owes a  duty
of  care  to a parolees victim, but vacate the denial of  summary
judgment  and  remand  to  the  superior  court  to  address  the
questions  of  discretionary function immunity and  causation  in
light  of the principles set forth in State of Alaska, Department
of Corrections v. Cowles.1
          This case also presents the question whether the cap on
noneconomic damages in AS 09.17.010 is constitutional and, if so,
whether  multiple  sexual penetrations should  be  treated  as  a
single injury  for purposes of the cap.  We hold that the cap  on
noneconomic  damages  in  AS  09.17.010  does  not  constitute  a
violation of equal protection under the Alaska Constitution.   We
also  hold  that  each  sexual  assault  constitutes  a  separate
incident under the statute.
     A.   Factual History
          In  1987 Luke Carter committed a violent rape.   Carter
was convicted of sexual assault in the first degree and sentenced
to a fifteen-year presumptive term.  He was released on mandatory
parole on July 29, 1997.
          Joseph  Murphy,  Carters institutional parole  officer,
met with him before his release from prison to discuss his plans.
Carter  initially  planned to settle near  his  home  village  of
Noorvik.   Carter was informed that he could not be  released  to
the  Kotzebue area because his parole conditions required him  to
live  in  a  place  where sex offender treatment  was  available.
Carter  chose  Anchorage.  Carter and Murphy did  not  develop  a
detailed  release  plan;  Carters  notification  of  release   to
supervision  did not list an address or employer  for  Carter  in
          On  July  29,  1997,  Carter was released  from  prison
subject  to  twenty-seven  standard  and  special  conditions  of
mandatory parole.  Prior to his release, Carter was told that  he
          was required to report to his field parole officer the day after
his release and to register as a sex offender within seven days.
          Field  Parole  Officer Linda Heyward  was  assigned  to
Carters  case and reviewed his field file a few days  before  his
release.   On the morning of July 30, Carter reported as required
for  the  intake  interview, but Heyward was  not  present.   The
office  clerk asked Carter to complete a monthly report form  and
instructed him to return the next day for the interview.  On  the
form,  Carter  listed no residence:  he provided only  a  Noorvik
mailing  address and an unidentified Anchorage telephone  number.
Carter  failed  to  report on July 31.   Carter  also  failed  to
register  as  a  sex offender within seven days of  his  release.
Heyward  took  no immediate action to report these violations  or
pursue revocation.
          On   August  11  a  state  trooper  contacted   Heyward
regarding a report that Carter might have stolen a key to a hobby
locker.   Heyward  told the officer that  she  had  not  been  in
contact with Carter for the past several weeks and gave him  some
Anchorage  telephone numbers at which Carter  might  be  reached.
The  officer was unable to contact Carter and placed a locate for
Carter  on  the state police computer system.  Also on August  11
Heyward  called  the  phone number listed on  Carters  form,  but
Carter  was not there.  Heyward noted in her log that  she  would
give Carter two weeks to remedy his violations before taking  any
further action.
          Two  days later, on August 13, Heyward received Carters
complete institutional file.  After reviewing it, Heyward  copied
medical  testimony  into  her  log  regarding  Carters  dangerous
personality.  She attempted to contact Carters cousin  again,  as
well  as Carters father, without success.  That same day, Heyward
completed  a  parole  violation report  which  described  Carters
failure  to  report and to register as a sex offender and  stated
her opinion that Carter was a danger to the public and likely  to
flee.   This  report led to the immediate issuance of  an  arrest
warrant.   Also  on  August  13  Heyward  notified  the  Kotzebue
probation  office that Carter might be headed in their  direction
and  promised to fax them a copy of the arrest warrant.  Once the
arrest  warrant  was  issued, Heyward did not  take  any  further
action to locate or arrest Carter.
          At  approximately 8:30 a.m. on August 27, 1997,  Carter
attacked   C.J.  while  she  was jogging  along  Anchorages  Tony
Knowles  Coastal  Trail.2  Carter grabbed her  by  the  neck  and
dragged her into the bushes.  The court of appeals described  the
incident in the criminal action:
          He  said that he had a weapon and would  kill
          her   if   she   screamed.   He  pushed   her
          sweatshirt and sports bra over her head.   He
          penetrated  her vagina with his fingers.   He
          then removed her shorts and underwear, and he
          performed  cunnilingus.   He  penetrated  her
          vagina  with his penis.  These three distinct
          penetrations led to the three counts of first-
          degree sexual assault.[3]
          Carter  was  charged and convicted by a jury  of  three
          counts of first-degree sexual assault.  At sentencing, Carters
attorney  argued  that even though Carter had been  convicted  of
three  sexual assaults he should only be subjected  to  a  single
sentence  because  there was no break in  the  event;  it  was  a
continuous episode.  The State sought thirty years on each  count
with  five  years  suspended, imposed consecutively.   The  judge
rejected the defenses argument, finding it significant that  this
victim  was  assaulted in different ways.  As  a  result,  Carter
received  three partially consecutive sentences, totaling  forty-
five years.4
     B.   Procedural History
          On  July  13,  1999, C.J. filed an action  against  the
State  for negligence.  On February 14, 2000, the State  filed  a
third-party  complaint against Carter for equitable apportionment
of fault under AS 09.17.080.
          On  September  15,  2003, the State moved  for  summary
judgment.  In its accompanying memorandum, the State argued  that
(1) our decision in Division of Corrections v. Neakok5 should  be
overruled and therefore that it owed no duty of care to C.J.; (2)
discretionary function immunity barred plaintiffs claims; and (3)
DOCs conduct did not, as a matter of law, cause C.J.s injuries.
          On  September 30, 2003, C.J. filed a motion asking  the
court  to  find  that (1) the caps on noneconomic damages  in  AS
09.17.010 are unconstitutional, and, in the alternative, that (2)
C.J.  is  entitled to recover damages up to the $400,000 cap  for
each  of the three separate incidents of rape she suffered.   The
same day, the State filed a motion asking the court to limit  any
potential recovery by C.J. to one award, limited to the  $400,000
cap  on noneconomic damages, because the repeated sexual assaults
occurred in a continuous criminal episode.
          On  November 17, 2003, Superior Court Judge  Sharon  L.
Gleason  held  oral  argument on the  motions  regarding  summary
judgment  and  the  damages  cap.  On November  18,  2003,  Judge
Gleason  denied  the States motion for summary  judgment.   Judge
Gleason also issued an order finding that C.J.s injuries shall be
treated  as a single injury for purposes of AS 09.17.010 and  the
non-economic damages may not exceed $400,000.
          On  January  27,  2004,  we  granted  both  the  States
petition  for review of the denial of summary judgment and  C.J.s
petition for review of the superior courts ruling  on the damages
          We  review denials of summary judgment motions de  novo
to  determine  whether there are genuine issues of material  fact
and  whether the moving party is entitled to judgment as a matter
of law, viewing all facts in the light most favorable to the non-
movant.6   Issues  relating to a statutes  constitutionality  and
interpretation  are  also  legal questions  subject  to  de  novo
     A.   Duty, Immunity, and Causation
          The  State  argues  that  it  is  entitled  to  summary
judgment because it owed no duty to protect C.J. from Carter.  It
urges  us to overrule our contrary holding in Neakok.8  The State
          also argues that it is immune from suit under AS 09.50.250(1).
The  State raised similar arguments in Cowles,9 a case that  also
involves a claim of negligence against the State based on  crimes
committed  by  a  parolee under its supervision.   Because  these
cases  present related issues, we announce our decision in  these
two cases together.
          As  we discuss in our opinion in Cowles, we decline  to
overrule  our  holding in Neakok that the State  has  a  duty  to
exercise due care in supervising parolees.  We also set forth  in
Cowles  the boundaries of discretionary function immunity  as  it
relates   to   decisions  involving  parole   supervision.    Our
discussion  in Cowles of when the State is immune from  liability
for  a  parole  officers  failure to seek  parole  revocation  is
particularly relevant since C.J. alleges that Heyward should have
pursued  revocation when Carter failed to report on July  31  and
failed to register as a sex offender.  As we explained in Cowles,
a parole officers decision whether or not to pursue revocation in
response  to  a  known parole violation is immune from  liability
unless  DOC  policy  explicitly  requires  the  officer  to  seek
revocation under these circumstances.10  On remand, the  superior
court  should determine whether each of DOCs allegedly  negligent
decisions  is  a  discretionary function based on the  principles
outlined   in   Cowles   and  our  other   decisions   concerning
discretionary function immunity.11
          The  State  also argues that it is entitled to  summary
judgment because no reasonable jury could find that DOCs  alleged
negligence  caused  Carters assault. Our  decision  requires  the
superior  court  to reexamine whether the State  is  entitled  to
discretionary  function  immunity  for  some  of  its   allegedly
negligent acts. That reexamination may affect the superior courts
causation analysis, for C.J. may only rely on non-immune acts  to
establish causation.  We decline to decide in the first  instance
whether the State is entitled to judgment as a matter of  law  on
the  issue of causation and remand the case to the superior court
for a ruling on this question.
     B.   The Cap on Noneconomic Damages in AS 09.17.010 Does Not
          Violate  C.J.s  Right  to Equal  Protection  Under  the
          Alaska Constitution.
          C.J.  argues  that the noneconomic damages  cap  in  AS
09.17.010  violates  the equal protection clause  of  the  Alaska
Constitution12 because two classes of successful tort  plaintiffs
are  treated  differently: (1) those suffering  serious  injuries
resulting  in  noneconomic damages that exceed the cap,  and  (2)
those  who receive full compensation for their loss because their
damages are below the cap.
            We  analyze equal protection claims under  a  sliding
scale approach13 which place[s] a greater or lesser burden on the
state to justify a classification depending on the importance  of
the  individual right involved.14  If the right impaired  by  the
challenged legislation is not very important, the State need only
show  that its objectives are legitimate and that the legislation
bears  a substantial relationship to its purpose.15  At the other
end  of the continuum, legislation that impairs one of the   most
          important individual interests will be upheld only if it furthers
the States compelling interest and if it is the least restrictive
means available to achieve the States objective.16
          We  considered a facial equal protection  challenge  to
the noneconomic damages caps in AS 09.17.010 in Evans v. State.17
An  equally  divided court affirmed the superior  courts  holding
that  the  caps were constitutional.18  The plurality opinion  in
Evans  concluded that the interest impaired by the caps is merely
economic  and  therefore justifies only minimum scrutiny.19   The
plurality  next  determined  that  the  stated  purposes  of  the
legislation,   which  include  controlling  liability   insurance
premiums, are legitimate.20  Finally, the plurality found that the
caps   bear   a  substantial  relationship  to  the  legislatures
objective of lowering insurance rates.21
          C.J.  urges us to reject the reasoning of the plurality
opinion   in   Evans.   She  also  argues  that  the   particular
circumstances of her case enhance the caps unfairness and support
a finding that the cap is unconstitutional as applied to her.  We
adopt  the equal protection analysis of the plurality opinion  in
Evans, and respond to each of C.J.s arguments in turn.
          C.J. first makes the same argument as the Evans dissent
that  the  interest  implicated in this case  is  not  merely  an
economic interest in money damages but the more fundamental right
of  equal access to the courts.22  But we have consistently  held
that  restrictions  on the types or amounts  of  damages  that  a
plaintiff can pursue in court impair economic interests only  and
are  therefore subject to minimum scrutiny review.23  As we noted
in  Evans, the right of access to the courts is impaired only  by
state action that actually limits or blocks access to the courts,
not by regulations that simply limit plaintiffs recovery in civil
court.24  C.J. also contends that the cap creates a practical and
effective  barrier to filing suit because plaintiffs with  little
or no economic loss will have insufficient incentive to file suit
and  will have difficulty finding a lawyer to take the case.  But
in  every  case where the cap is applied, the plaintiffs recovery
for noneconomic damages will be at least $400,000 plus Civil Rule
82  attorneys fees, guaranteeing sufficient incentive to exercise
the right to access the courts.25
          C.J.  repeats the Evans dissents argument that  Alaskas
sliding-scale approach permits economic interests to qualify  for
close  scrutiny in some circumstances.26  But the cases cited  by
C.J.  and  the  Evans dissent for the proposition  that  economic
interests  can qualify for heightened scrutiny involve the  right
to  engage in an economic endeavor, which is a special and  quite
different kind of economic interest from the one at issue in this
case.27   As  we explained in Wilkerson v. State,  the  right  to
engage in an economic endeavor is important because it involves a
source  of sustaining income that individuals depend on to supply
the  basic  necessities of life.28  In Wilkerson,  we  explicitly
contrasted  the  important interest in engaging  in  an  economic
endeavor  with  the  interest  in other  payments,  such  as  the
permanent fund dividend or a foster parent stipend, that are  not
a  source  of  sustaining income and are therefore mere  economic
interests  entitled to minimum scrutiny.29  Because a noneconomic
          damages award is, by definition,  not a source of sustaining
income, a replacement for the ability to earn income, or a source
of  money  to  provide for basic needs such  as  past  or  future
medical  care,30 the economic interest impaired  by  the  cap  is
subject to minimal protection.
          C.J.  also  contends  that the damages  cap  cannot  be
sustained even under  minimum scrutiny analysis because the State
has  failed  to show the required fit between the cap on  damages
and  the  States objective of lowering insurance premiums.31   In
making  this argument, C.J. does not question whether the damages
cap  will  actually result in lower insurance premiums.   Rather,
her  argument  is that it is irrational to single  out  the  most
severely  injured  tort  victims to  pay  for  the  reduction  in
premiums.  The dissent in Evans made the same argument.32
          To  begin, we agree that the legislature may not use  a
suspect  or arbitrary method in identifying the group  that  will
bear  the brunt of an otherwise legitimate policy.33  But because
the  damages  cap  imposes only economic burdens,  and  allocates
these  burdens using criteria that are not presumptively suspect,
our  scrutiny  of  the underlying rationale is minimal.   Minimum
scrutiny  has  traditionally meant two things  in  assessing  the
means  chosen to effectuate the statutory goal.  First,  although
the  scheme  should be substantially related to  some  legitimate
purpose, we have not required a perfect fit between a legislative
classification  and the government objective it  is  intended  to
further.34   For  example, we have upheld school funding  schemes
that  were not the most protective of tax equality, but that were
close  enough.35   We have also upheld foster parent  application
restrictions  even though we conceded the restrictions  do[]  not
have  to  be meaningful in all cases,36 and have emphasized  that
policies reviewed under minimum scrutiny are not unconstitutional
simply  because  a litigant is able to propose a regulation  that
would  further the legislative goal in a more rational  manner.37
The  second  principle is that although the rationale  underlying
the  legislation  should  be logically  plausible,  there  is  no
requirement  that  it  be  proved  in  court.   For  example,  in
considering  a challenge to a new limit on prejudgment  interest,
we  upheld the limit because we agreed that a policy of  reducing
malpractice  insurance can reasonably be thought to be  furthered
by  the scheme.38  Similarly, we accepted, without evidence,  the
assertion  that  legislation narrowing  employers  liability  for
stress-related  mental  injuries would save  employers  money  by
eliminating unusually susceptible claimants and minimizing  fraud
and abuse in claims for stress-related mental injuries.39
          Viewed  in  light of these precedents, the damages  cap
satisfies  the means-end fit requirement.  First, the legislature
appears  to  have  viewed  large  noneconomic  damage  awards  as
susceptible  to over-estimates of the dollar value of  a  victims
noneconomic loss.40  Whether or not we agree with this conclusion,
we  think  it is one that the legislature was entitled  to  make.
Second, the legislature could reasonably have concluded that  any
alternative  method of lowering insurance costs would  have  been
less  fair  than a cap on noneconomic damages.  The most  obvious
alternative would have been to reduce all tort awards by a  fixed
          percentage.  But such a policy would create its own inequities.
A significant across-the-board reduction in awards might have the
effect  of  destroying the viability of smaller  claims,  thereby
burdening  victims  ability to seek redress  to  a  much  greater
degree  than  would result from a cap applicable  only  to  high-
damage  cases,  which are viable almost by definition.   And  the
legislature  could determine that an across-the-board  cut  would
not  necessarily reduce insurance costs as effectively as  a  cap
because  very  large, uncapped awards may have a disproportionate
effect  on  insurance premiums.  The fit between the  noneconomic
damages  cap and reducing insurance premiums may not be  perfect,
but it satisfies minimum scrutiny.
          C.J. argues that the arbitrariness and harsh effect  of
the  damages caps is exacerbated when applied to her because  (1)
as  a  rape victim, her injury involves a disproportionate amount
of pain and suffering compared to monetary loss and (2) as a low-
wage   earner  her  recovery  will  depend  almost  entirely   on
noneconomic  damages.41  We are sympathetic to  C.Js   particular
circumstances.   But while limiting the noneconomic  damages  for
such a  grievous injury may seem harsh, we have held that under a
minimum scrutiny analysis, we do not determine if a regulation is
perfectly  fair  to  every individual to whom  it  is  applied.42
Rather,  we must decide only if the regulation bears a  fair  and
substantial  relationship to a legitimate government objective.43
As we have explained, the damages cap satisfies this standard.
          A  final  consideration is that the arguments advanced
by   C.J.   and   the  Evans  dissent  would  have  far-reaching
implications   that  are  inconsistent  with  established   law.
Legislation  frequently  reduces  or  eliminates  certain   tort
remedies,  and  often  the rationale for making  a  subgroup  of
injured  people  pay the price of legitimate  legislative  goals
could  not  survive  close scrutiny.  We have already  mentioned
some  precedents  that  illustrate this  point,  but  some  more
general  examples  also  come  to  mind.   Workers  compensation
statutes base damages entirely on wages, essentially eliminating
all noneconomic damages.44  At oral argument, C.J. responded  to
this  example  by  noting  that  while  a  damages  cap  is   an
unmitigated detriment to tort victims, workers compensation  has
given  workers a streamlined, no-fault system in return for  the
lower recovery.  But C.J.s characterization works only at a high
level of generality.  Workers whose wages are low, who have been
the  victims  of  blatantly negligent  conduct,  or  who  suffer
exceptional noneconomic injuries bear the brunt of a system that
may benefit their co-workers or employers but certainly does not
benefit  them.   Similarly,  where someone  is  injured  by  the
negligence of a state official, sovereign immunity and  official
immunity  may bar recovery entirely.45  This immunity exists  to
promote vigorous government, but it involves no other benefit to
tort  victims generally, and to the victims of government  torts
it  must  seem arbitrary that they bear the entire cost.   Going
further  back,  historical developments such as strict  products
liability  have greatly expanded the tort liability  of  certain
actors, arguably singling them out to pay for social problems in
ways  that might have seemed irrational or illegitimate  at  the
          time.46  But tort law has not been so constitutionalized as to
prevent these developments, and society has benefitted from  the
experimentation and debate that have resulted.47
          Notwithstanding  the  foregoing,  we  appreciate  that
there will be severely injured persons who are under-compensated
as  a  result of this legislation, and we are under no  illusion
that  this result will seem fair to them.  In deciding that  the
cap  is  constitutional,  we express no  opinion  about  whether
damages  caps are good policy.48  As we noted in Evans, [i]t  is
not  a  courts  role to decide whether a particular  statute  or
ordinance is a wise one; the choice between competing notions of
public  policy is to be made by elected representatives  of  the
people.49   Because the State has met its burden  under  minimum
scrutiny  of  showing  that the damages caps  are  substantially
related   to  the  legitimate  interest  of  reducing  insurance
premiums, we hold that the cap does not violate C.J.s  right  to
equal protection.
     C.   C.J.s  Damages Should Not Be Limited to a  Single  Cap
          Amount Under AS 09.17.010(d).
          C.J.  argues that the superior court erred in limiting
her potential damages to the single cap amount of $400,000.  She
contends  that  if  the damages cap is applied  to  her  she  is
entitled  to recover the cap amount for each of the three  types
of  sexual  penetrations that formed the basis of Carters  three
convictions.  The State argues that the superior court correctly
applied a single cap because C.J.s injuries occurred as part  of
a single criminal episode.
          Alaska  Statute 09.17.010(b) imposes a cap  on  claims
arising  out  of  a single injury or death, and AS  09.17.010(d)
provides that [m]ultiple injuries sustained by one person  as  a
result  of a single incident shall be treated as a single injury
for  purposes  of this section.  In interpreting a  statute,  we
look  to  the meaning of the language, the legislative  history,
and  the purpose of the statute in question.50 C.J. argues  that
each  type  of  penetration by Carter  resulted  in  a  separate
incident under the statute.  We agree.
          The  State  relies on the use of the word incident  in
criminal cases that do not interpret AS 09.17.010 to argue  that
C.J.s  claims arise out of a single incident under the  statute.
But  a closer look at the statute and its purposes reveals  each
penetration  constitutes  a separate incident.   Alaska  Statute
09.17.010(d) is intended to limit recovery for a single tortious
act  that  causes multiple injuries.51  Where a car accident  is
caused  by tortious behavior, for example, the statute seeks  to
prevent  the accident victim who suffers multiple injuries  from
recovering  more  than one cap amount.  But  a  cap  on  damages
resulting  from a single incident does not evince a  legislative
intent  to  absolve  a  tortfeasor of liability  for  committing
multiple,  separate  tortious  acts  that  result  in   distinct
compensable  injuries   simply because those  acts  occur  in  a
compressed  period of time.  Such a rule would allow intentional
tortfeasors  to  reduce their liability by committing  torts  in
rapid succession  undermining the compensatory function of  tort
          law.  Eliminating liability for distinct tortious acts that
cause  distinct injuries would run counter to the stated purpose
of  the  statute  to  decrease the cost  of  litigation  without
diminishing  the  protection  of  innocent  Alaskans  rights  to
reasonable,   but  not  excessive,  compensation  for   tortious
injuries caused by others.52
          The   Indiana  Court  of  Appeals  reached  a  similar
conclusion  in  a case involving a statute capping  damages  for
each occurrence of [medical] malpractice.53 The court interpreted
occurrence to mean each negligent act and its resulting injury,54
and  held  that  where a doctor committed two separate  acts  of
negligence resulting in two separate injuries in the course of a
single  medical  procedure, the plaintiff was  entitled  to  the
equivalent of two cap amounts.55  The court noted that to impose
a  single  cap  on two distinct acts resulting in  two  distinct
injuries would undermine fundamental principles of tort law.56
          Here,  Carter committed three distinct acts,  each  an
intentional  tort, each causing a separate injury.  In  applying
AS  09.17.010  to this case, we look to how the legislature  and
the  courts  have  defined the crime of sexual  assault.57   Our
criminal   law  recognizes  that  different  forms   of   sexual
penetration   constitute  different  forms  of   indignity   and
violation . . . merit[ing] separate punishment,58 and Carter was
found  to have committed three separate criminal acts.  Limiting
C.J.  to one cap amount in this case would deny her any recovery
for  her  injuries  as a result of two of  the  three  types  of
penetration,  a   result  contrary to the  statutes  purpose  of
protecting  a plaintiffs right to reasonable, but not excessive,
compensation for tortious injuries.59  The State argues that the
number of incidents under AS 09.17.010 should not be tied to the
number  of convictions, pointing out that the disposition  of  a
criminal  case  may  depend on tactical decisions  made  by  the
prosecutor.   But  our  analysis relies not  on  the  number  of
Carters  convictions,  but on the fact  that  our  criminal  law
treats   different  forms  of  sexual  penetration  as  separate
criminal acts.
          The  multiple  sexual penetrations in  this  case  are
analogous  to  the multiple sexual violations that  occurred  in
Kodiak  Island Borough v. Roe.60  We held in Kodiak Island  that
each  occurrence of rape caused a separate injury and  therefore
the  plaintiff  was  entitled  to damages  for  each  assault.61
Although the sexual assaults in this case occurred within a more
compressed  time  frame,  each  sexual  assault  constitutes   a
separate incident for purposes of the cap.
          Moreover,  it  would  be  anomalous  to  conclude  one
damages  cap  applies because the rape was a  single  continuous
episode  when  the  State successfully defeated  precisely  that
theory in the criminal case and obtained separate sentences  for
each penetration.62  At sentencing, Carters attorney argued that
even  though Carter had been convicted of three sexual  assaults
he  should only be subjected to a single sentence because  there
was  no  break  in the event, it was a continuous episode.   The
State opposed this argument, seeking  thirty years on each count
imposed consecutively.  The judge rejected the defenses argument
          for a single sentence, finding that it was significant that this
victim  was  assaulted in different ways.  As a  result,  Carter
received  three partially consecutive sentences totaling  forty-
five  years.  Given that each type of penetration was  found  to
constitute a separate criminal act meriting separate punishment,
it would be unjust to conclude that the victim of these separate
violations is limited to a single cap amount.
          We  therefore hold that if C.J. prevails in her  civil
suit,  she is entitled to recover up to the cap amount for  each
of the three types of sexual penetration.

          We hereby REVERSE the superior courts order that C.J.s
potential  noneconomic damages be capped at  $400,000  under  AS
09.17.010.   We  VACATE the superior courts  order  denying  the
States  motion  for  summary judgment.  We  REMAND  for  further
proceedings consistent with this opinion.
BRYNER, Chief Justice, concurring and dissenting.
          I write separately to address two points.
          First,  although I agree with the courts  decision,  I
rely  on  a  somewhat different rationale.  In todays  companion
case,  State, Department of Corrections v. Cowles,1 we construed
Neakok2  to  impose an actionable duty on parole  officers  only
when  the  officer knew or reasonably should  have  known  of  a
focused danger to an identifiable victim or class of victims   a
present danger focusing on something more than simply members of
the general public.3  As I indicated in my concurring opinion in
Cowles,  I  would  hesitate to conclude that the  population  of
Anchorage  qualifies as an identifiable class of  victims  under
this standard.4
          Because  I doubt that the current record in this  case
establishes  the focused danger needed to trigger an  actionable
Neakok  duty,  it seems possible that C.J. might  ultimately  be
unable  to meet the Neakok duty standard.  I nonetheless believe
that  the record does raise a genuine issue of material fact  as
to  whether  Carter  posed  an obvious  and  present  danger  of
committing a sexual assault.  And since the state did not assert
as  a basis for summary judgment the absence of evidence showing
that  the  danger was sufficiently focused  simply  arguing,  in
relevant  part, that Neakok was bad law and should be  overruled
C.J.  was  never called upon to develop and offer evidence  that
might  have established a particularized risk to an identifiable
class of victim.
          Given  the states failure to demonstrate that  it  was
entitled  to summary judgment on the specific ground it asserted
below,  I  agree  that the superior court properly  declined  to
grant the states motion for complete summary judgment; I further
agree  that  the superior courts ruling on the issue of  summary
judgment must be reconsidered on remand in light of our opinions
here  and in Cowles.  But in addition to other questions  todays
opinion  identifies for consideration on remand, I would include
the  question  whether  C.J.  can  meet  Neakoks  focused-danger
requirement.  I concur in Part IV.A. of todays opinion  on  this
          Second,  as  to the opinions ruling on  the  issue  of
capping  noneconomic damages, I adhere to my dissenting  opinion
in  Evans  v.  State5 and thus dissent from Part  IV.B.  of  the
          I join the opinion in all other respects.
CARPENETI, Justice, concurring and dissenting.
          I agree with the courts opinion in all respects except
Part IV.B.  For the reasons expressed in Justice Bryners dissent
in  Evans ex rel. Kutch v. State,1 in which I joined,2  I  would
conclude  that  AS  09.17.010, in capping  noneconomic  damages,
violates the Alaska Constitutions guarantee of equal protection.
MATTHEWS, Justice, dissenting in part.
          In   my   dissenting  opinion  in  State  of   Alaska,
Department  of  Corrections v. Cowles,  I  concluded  that  tort
liability should not be imposed on parole officers or the  State
for negligent supervision of parolees.1  The main premise of the
case  holding to the contrary, Division of Corrections v. Neakok
that  parole officers have a substantial ability to control  the
conduct of parolees2  has been shown in subsequent years  to  be
false  and  therefore Neakok should be overruled.  I would  thus
reverse  the  superior courts denial of the  States  motion  for
summary  judgment concerning the duty issue and  remand  for  an
entry of judgment in favor of the State.
          That   result  would  moot  the  additional  questions
addressed in todays opinion as to whether the cap on noneconomic
damages  in AS 09.17.010 is constitutional and whether the  rape
victim  in  this  case is entitled to a separate  cap  for  each
penetration  or  whether  the  single-incident  limitation   for
multiple injuries should apply.  But since these issues are  not
mooted, I address them as well.  I agree with the opinion of the
court  that  the damages cap is constitutional for  the  reasons
expressed  by the court.  But I do not agree that the victim  in
this  case is entitled to multiple caps.  In my view,  the  rape
was  a  single incident resulting in multiple injuries and  thus
under AS 09.17.010(d) the resulting injuries are subject to  one
cap.  I develop this point in the paragraphs that follow.
          Alaska  Statute 09.17.010 caps noneconomic  losses  at
the  greater of $400,000 or the injured persons life  expectancy
multiplied  by  $8,000,  except in  cases  of  severe  permanent
physical  impairment  or  severe  disfigurement.   The  cap   is
triggered  by  a  single injury or death, but multiple  injuries
sustained  by  one person as a result of a single  incident  are
counted as a single injury.  Such injuries are thus subject to a
single  cap  rather than multiple caps.3  The question  in  this
case is, given that each penetration inflicted on the victim  of
the  rape in this case is a separate injury, whether each injury
was  sustained . . . as a result of a single incident within the
meaning of AS 09.17.010(d).
          The  term single incident should be interpreted  in  a
manner  that  is consistent with its common usage.4   In  common
usage,  a rape or sexual assault occurring in a brief period  of
time is referred to as an incident without regard to the details
of  the  assault.  This usage is well illustrated by the opinion
of  the  court  of appeals in Yearty v. State.5   The  defendant
there  had  raped a woman at a supermarket.6  In the process  he
had  engaged  in  several  types of  penetrations.7   The  court
referred  to  this  assault as the Carrs Supermarket  incident.8
Similarly, the same defendant had engaged in another multi-crime
sexual  assault near a bike path at Goose Lake.9  The  court  of
appeals described this assault as the Goose Lake incident.10
          The   same  usage  is  reflected  in  another   single
incident,  multiple-penetration case of the  court  of  appeals,
Erickson v. State.11  There the court stated:
               In  the  present case, the  jury  found
          that  Erickson had engaged in four  distinct
               types of sexual penetration with the victim.
          To   paraphrase   Dunlop,   [w]hen   several
          [distinct types of sexual penetration] occur
          in  the  course  of a single  incident,  the
          offense  prohibited by the statute has  been
          violated several times over.[12]
          In  Kodiak  Island Borough v. Roe a mentally  disabled
resident of a residential facility was sexually assaulted by two
employees of the facility.13  There were four separate assaults,
two  by  each employee, each on different days and in  different
locations  in the facility.14  We referred to each event  as  an
incident  of assault.15  We employed the same usage in referring
to  a Montana case where there had been three rapes of a patient
on  three  separate occasions, describing that case  as  holding
each incident of rape was a separate wrongful act.16
          The usage reflected by these cases applies here.  Just
as  the  multi-crime  bike path sexual  assault  in  Yearty  was
described  as  an  incident, and just as  the  multi-penetration
assault in Erickson was described as a single incident, the rape
that  took place in this case is most readily described  in  the
same way.
          This  interpretation  is  also  consistent  with   the
purpose  of  the damage cap statute.  The statute  is  meant  to
limit  damage  awards in order to lower, or  at  least  control,
insurance  premiums.17  This purpose is furthered  by  employing
the  common-usage meaning reflected in the above  cases  because
the  resulting  noneconomic injuries suffered by  a  victim  are
limited  to  a  single  cap.  On the other hand,  subdividing  a
sexual  assault into discrete penetrations runs counter  to  the
purpose of the statute by effectively taking the damage cap  out
of play.
          Apart from the general usage of the word incident  and
the purpose of the statute, how else could one determine whether
a  series  of acts consist of a single incident or two  or  more
separate incidents?  A sensible approach is to use the same test
used  to  determine whether a set of facts constitutes a  single
transaction or occurrence, or more than one.  This is  the  test
that   we  use  when  determining  whether  a  counterclaim   is
compulsory and thus must be asserted in response to a complaint,
and  when  determining  whether  a  cause  of  action  has  been
impermissibly  split.  Incident and occurrence  are  synonyms,18
and our endeavor here is much like what we try to do when we use
the   same  transaction  or  occurrence  test:   determine  what
combinations  of  facts should be tried together,  if  they  are
tried at all.
          The same transaction or occurrence test consists of  a
list  of  factors that are useful in determining whether various
claims  arise  from  the same transaction or occurrence.   These
factors  include whether the facts are related in  time,  space,
origin,  or  motivation; whether they form  a  convenient  trial
unit;  and  whether their treatment as a unit  conforms  to  the
parties expectations or business understanding or usage.19
          These factors indicate that the rape that occurred  in
          this case is one transaction or occurrence rather than more than
one.   Most  importantly the facts here are closely  related  in
time, space, origin, and motivation.  Further, they would form a
convenient trial unit.  As to the parties expectations or usage,
I think it would be unprecedented to conduct separate trials for
each  type  of penetration that took place in the  course  of  a
sexual  assault.  So these factors also point to the  conclusion
that  what  we have here is a single transaction or  occurrence.
Based  on all these factors, it seems clear that a victim  of  a
multiple-penetration rape could not try a civil case based on  a
complaint  limited to only one penetration and then subsequently
bring  a new case based on a second penetration.  Doing so would
run  afoul of the rule prohibiting splitting a cause of  action.
It follows that each penetration is part of the same transaction
or occurrence and, by analogy, also a part of a single incident.
          The fact that the criminal law may count each type  of
penetration  as  a separate crime seems to me to be  irrelevant.
Alaska  Statute  09.17.010 applies to civil not criminal  cases.
There is no analogous statute or legal principle in criminal law
that mandates that multiple affronts sustained by one person  as
a  result  of  a  single incident must be  considered  a  single
crime.20  The purposes of the criminal law, briefly stated,  are
to   condemn,  punish,  and  deter  wrongful  conduct.21   These
purposes are unrelated to the purposes of AS 09.17.010  limiting
tort  recoveries for noneconomic losses in order to control  the
cost of liability insurance.
          In summary, the brutal act that gave rise to this case
was  a  single  incident within the common usage of  that  term.
This  usage  controls  the meaning of  AS  09.17.010(d)  and  is
consistent with its purposes, whereas a narrower usage would not
be.  The test we use to define the synonymous word occurrence is
also  relevant to the meaning of incident here and reveals  that
the  several  penetrations constitute one incident.   Again,  it
seems beyond question that the plaintiff here would not be  able
to  bring a lawsuit based on one penetration and then later  sue
separately  on another penetration.  The fact that  the  several
penetrations  that occurred were separate crimes  is  irrelevant
because  no  principle similar to the single incident limitation
of AS 09.17.010(d) applies in criminal law, and the criminal law
rule  permitting the imposition of separate convictions for each
penetration in a sexual assault has purposes that are  unrelated
to the purposes of AS 09.17.010(d).
          For these reasons I would uphold the determination  of
the  superior court that the injuries suffered by the victim  in
this case are subject to a single cap.
     1    ___ P.3d ___, Op. No. 6082 (Alaska, December 15, 2006).

     2     The  facts of the assault are adapted from  Carter  v.
State, Mem. Op. & J. No. 4233 (Alaska App., June 21, 2000),  2000
WL 799336, at *1-2.

     3     Id. at *1.

     4     The  court of appeals upheld this sentence in  Carter,
2000 WL 799336 at *3-5.

     5     Div. of Corr., Dept of Health & Soc. Servs. v. Neakok,
721 P.2d 1121 (Alaska 1986).

     6    State v. Sandsness, 72 P.3d 299, 301 (Alaska 2003).

     7     State  v. Alaska Civil Liberties Union, 978 P.2d  597,
603  (Alaska 1999) (constitutionality); Boone v. Gipson, 920 P.2d
746, 748 (Alaska 1996) (interpretation).

     8     721  P.2d  at 1125 (holding the State had  a  duty  to
control  a  parolee or to warn potential foreseeable  victims  of
danger of a parolee).

     9    Cowles, ___ P.3d at ___, Op. No. 6082.

     10    The parties dispute whether DOC policy required Heyward
to seek revocation in response to Carters violations.

     11    See Angnabooguk v. State, Dept of Natural Res., Div. of
Forestry,  26  P.3d 447, 458 (Alaska 2001) (declining  to  decide
whether  each  allegation in the complaint concerns  planning  or
operational decisions and instructing superior court on remand to
make  a separate determination for each allegation following  the
principles  announced by the court).  In addition to the  failure
to revoke Carters parole, C.J. alleges other negligent omissions,
each  of which must be addressed by the superior court on remand.
For  example,  C.J. alleges that DOC released Carter  without  an
adequate  pre-release plan, but the parties  do  not  discuss  in
detail  whether  this  function is  operational  or  planning  in
nature.   The superior court must determine whether the  creation
of  a  pre-release  plan  is  akin to the  imposition  of  parole
conditions and formulation of a parole plan that were found to be
immune  in  Cowles,  or  whether it is  akin  to  the  day-to-day
supervisory  activities  that are not entitled  to  discretionary
function immunity.

     12     Article  I,  section  1  of the  Alaska  Constitution
provides in relevant part that all persons are equal and entitled
to equal rights, opportunities, and protection under the law.

     13    Wilkerson v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 993 P.2d 1018, 1022 (Alaska 1999).

     14     Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269
(Alaska 1984) (citation omitted).

     15    Id. at 269-70.

     16    State, Acting By & Through its Depts of Trans. & Labor
v.  Enserch  Alaska Constr., Inc., 787 P.2d 624,  631-32  (Alaska

     17     Evans  ex  rel. Kutch v. State, 56 P.3d 1046  (Alaska
2002) (plurality opinion).

     18    Id. at 1070 & n.140.

     19    Id. at 1052-53.

     20    Id. at 1053-54.

     21    Id. at 1054-55.

     22    Id. at 1072 (Bryner, J., dissenting).  C.J. also argues
that the damages cap burdens her constitutional rights as a crime
victim  under  article I, section 12 of the  Alaska  Constitution
which  provides  in  relevant part that  criminal  administration
shall  be  based  upon  the  right  of  victims  of  crimes   and
restitution from the offender.  But this constitutional provision
governs criminal administration and has never been interpreted to
provide  crime victims special rights in tort. The constitutional
right of crime victims to restitution from the accused in article
I,  section  24  is also not implicated here because  C.J.  seeks
redress from the State, not her assailant.

     23    See Anderson v. Central Bering Sea Fishermens Assn, 78
P.3d  710,  718  (Alaska  2003)  (plurality  opinion)  (right  to
punitive damages relates merely to economic interests);  Reid  v.
Williams,   964  P.2d  453,  458  (Alaska  1998)   ([a]   medical
malpractice plaintiffs right to damages is an economic  interest,
which  traditionally receives only minimal protection  under  our
equal  protection analysis); Chokwak v. Worley,  912  P.2d  1248,
1254-55  (Alaska  1996) (analyzing challenge to statute  granting
immunity from civil liability to social hosts who provide  liquor
to  minors  under rational basis review); McConkey v.  Hart,  930
P.2d  402,  407-08 (Alaska 1996) (analyzing challenge to  statute
that  limits  accrual of prejudgment interest in cases  involving
personal injury, death, and damage to property under the rational
basis  test); Wilson v. Municipality of Anchorage, 669 P.2d  569,
572  (Alaska  1983) (finding that the interest  in  seeking  tort
recovery  from a governmental entity is only economic); see  also
Gilmore v. Alaska Workers Comp. Bd., 882 P.2d 922, 926-27 (Alaska
1994)   (finding  injured  employees  interest  in   compensation
benefits  that  reflect  actual losses is  an  economic  interest
subject to minimal scrutiny).

     24    56 P.3d at 1052 (citing cases).

     25    See AS 09.17.010.

     26    56 P.3d at 1072 (Bryner, J., dissenting).

     27     See  Enserch,  787 P.2d at 632; Commercial  Fisheries
Entry Commn v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980).

     28    993 P.2d at 1023.

     29    Id. at 1024.

     30    See AS 09.17.010(a).

     31     C.J.  also  argues that reducing  insurance  premiums
cannot  be  a  legitimate purpose  under our decision  in  Alaska
Pacific Assurance Co., 687 P.2d at 272 (We hold that the asserted
goal of lowering insurance premiums can have no independent force
in  the  states  attempt  to  meet its  burden  under  the  equal
protection clause.).  We rejected an identical argument  in  Reid
v.  Williams,  explaining  that the analysis  in  Alaska  Pacific
Assurance  Co., a heightened scrutiny case,  does  not  apply  to
rational basis review.  Reid, 964 P.2d at 459.  In Reid, we  held
that   reducing  medical  malpractice  insurance  costs   was   a
legitimate state purpose.  Id.

     32     See  Evans, 56 P.3d at 1075 (Bryner, J.,  dissenting)
(quoting  Fein  v.  Permanente Med. Group, 695 P.2d  665,  690-91
(Cal. 1985) (Bird, J., dissenting).

     33     Alaska  Pac. Assurance Co., 687 P.2d at  272  &  n.12
(heightened scrutiny) (citations omitted).

     34    Wilkerson, 993 P.2d at 1024; see also State v. Anthony,
810  P.2d  155,  161  (Alaska 1991) (equal  protection  does  not
require perfection); Eldridge v. State, Dept of Revenue, 988 P.2d
101,  104 (Alaska 1999) (there need not be a perfect fit for  the
regulation to pass the relatively low constitutional test applied
when the individuals interest is economic).

     35    Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d
391, 399 (Alaska 1997).

     36    Wilkerson, 993 P.2d at 1024.

     37    Wilson, 669 P.2d at 573.

     38    McConkey, 930 P.2d at 408.

     39     Williams v. State, Dept of Revenue, 895 P.2d 99,  104
(Alaska 1995).

     40     This  is  seen  in the statement in the  session  law
enacting  tort reform that the legislation will protect  Alaskans
rights  to  reasonable,  but  not  excessive,  compensation   for
tortious injuries caused by others.  Ch. 26,  1(1), SLA 1997.

     41     She also argues that the cap is particularly harsh as
applied  to her because although her assailant assaulted  her  in
three  different ways the trial court found that her  injury  was
subject  to  a  single  cap.  We determine  below  that  C.J.  is
entitled  to recover up to the cap amount for each of  the  three
sexual penetrations by Carter.

     42    Eldridge, 988 P.2d at 104 (citation omitted).

     43    Id.

     44    See AS 23.30.175-215.

     45     See  AS  09.50.250 (retaining sovereign  immunity  in
certain  cases); see also Alpine Indus., Inc. v.  Feyk,  22  P.3d
445,  446 (Alaska 2001) (absolute official immunity protects  the
authors of state public health bulletins).

     46    See, e.g., Greenman v. Yuba Power Prods., 377 P.2d 897,
900  (Cal. 1963) (adopting strict liability in products liability
cases); Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436,
441  (Cal. 1944) (Traynor, J., concurring) (advocating  that  the
court adopt strict products liability because it is to the public
interest and because the manufacturer is best situated to pay).

     47     Similarly, limited judicial review of the rationality
of  economic regulation of all types has been a basic feature  of
state  and  federal law since the demise of Lochner v. New  York,
which constitutionalized laissez-faire economic principles.   198
U.S.  45  (1905)  (state maximum-hours laws for bakery  employees
interfered  with  freedom  of  contract  and  therefore  violated
substantive due process).  Justice Holmess dissent declared,  The
14th  Amendment  does  not  enact  Mr.  Herbert  Spencers  Social
Statics,  referring  to a treatise advocating  social  darwinism.
Id. at 75.

     48      Compare  Valerie  P.  Hans  &  Stephanie  Albertson,
Empirical Research and Civil Jury Reform, 78 Notre Dame  L.  Rev.
1497  (2003)  (evidence of efficacy of damage  caps  in  reducing
premiums   is  mixed;  distortions  in  jury  awards  have   been
overstated), and Adam D. Glassman, The Imposition of Federal Caps
in  Medical  Malpractice Liability Actions:  Will They  Cure  the
Current Crisis in Health Care? 37 Akron L. Rev. 417 (2004),  with
Patricia  M. Danzon, The Effects of Tort Reform on the  Frequency
and Severity of Medical Malpractice Claims, 48 Ohio St. L.J. 413,
417  (1987)  (Caps  on  awards,  collateral  source  offset,  and
statutes of repose have had significant effects, in the direction
and magnitude that is consistent with theory, prior evidence, and
common  sense.); see also W. Kip Viscusi & Patricia Born, Medical
Malpractice  Insurance  in the Wake of Liability  Reform,  24  J.
Legal  Stud.  463 (1995) (damage caps reduce insurers  cost,  but
cost  reductions have not been passed on to insureds in the  form
of premium reductions).

     49     Evans, 56 P.3d at 1054 (quoting Concerned Citizens of
South  Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d  447,
452 (Alaska 1974)).

     50     Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783,
787 (Alaska 1996).

     51    When interpreting the former noneconomic damages cap in
Kodiak  Island Borough v. Roe, we established that the  cap  does
not  apply  to each legal claim, but to each incident.   63  P.3d
1009,  1016  (Alaska 2003).  Thus, a single claim  of  negligence
may,  as  here, result in recovery for more than one  cap  amount
when  the alleged negligence results in multiple acts that  cause
distinct injuries.

     52     Ch.  26,  1(1), SLA 1997.  We also note that  because
this statute is in derogation of the common law, we must construe
it  narrowly  so as to effect the least possible  change  in  the
common  law.  Univ. of Alaska v. Shanti, 835 P.2d 1225, 1228  n.5
(Alaska 1992).

     53     Medical  Assurance of Indiana v. McCarty, 808  N.E.2d
737, 743 (Ind. App. 2004).

     54    Id. at 745 (analyzing the plain language of occurrence
as an act or instance of occurring, happening, event, episode, or
incident  and  holding that an occurrence of malpractice  is  the
actual act itself).

     55    Id.

     56    Id. at 743.

     57     The  dissent  argues  that the  rules  of  compulsory
counterclaim  can inform our understanding of the term  incident.
Dissent  at 31-32.  But counterclaim rules serve judicial economy
and  finality, and are inapposite to our interpretation of  terms
within   the   compensatory  context  of  tort  law.    Moreover,
recognition that each violation is a separate incident under  the
cap  in  no  way bears on the question of whether they  could  be
litigated separately.

     58    Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997)
(quoting Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991)).

     59    Ch. 26,  1(1), SLA 1997.

     60    63 P.3d 1009 (Alaska 2003).

     61    Id. at 1016.

     62      Because  we  determine  as  a  matter  of  statutory
interpretation that C.J. is entitled to up to three  cap  amounts
if she prevails, we need not address her contention that estoppel
bars  the  States  arguments.  Cf. Power  Constructors,  Inc.  v.
Taylor-Hintze, 960 P.2d 20, 26 (Alaska 1998) (quotation  omitted)
(stating  that the doctrine of quasi-estoppel bars a  party  from
changing  its  position  on an issue in  later  litigation  where
circumstances    render   assertion   of   a   second    position

     1     State, Dept of Corr. v. Cowles, ___ P.3d ___, Op.  No.
6082 (Alaska, December 15, 2006).

     2     State, Div. of Corr. v. Neakok, 721 P.2d 1121  (Alaska

     3     Cowles,  ___  P.3d ____, Op. No. 6082 at  20  (quoting
Neakok, 721 P.2d at 1129).

     4    Cowles, ___ P.3d ____, Op. No. 6082 at 30.

     5     Evans  ex  rel. Kutch v. State, 56 P.3d 1046,  1071-75
(Alaska 2002) (Bryner, J., dissenting).

     1    56 P.3d 1047, 1071-75 (Alaska 2002).

     2    Id. at 1079 (Carpeneti, J., dissenting).

1     __  P.3d  __,  Op.  No.  6082 at 31 (Alaska,  December  15,

     2    721 P.2d 1121, 1126 (Alaska 1986).

     3    The full text of AS 09.17.010 provides:

               (a)  In an action to recover damages for
          personal injury or wrongful death, all damage
          claims   for  noneconomic  losses  shall   be
          limited  to compensation for pain, suffering,
          inconvenience,      physical      impairment,
          disfigurement,  loss of  enjoyment  of  life,
          loss  of  consortium, and other  nonpecuniary
               (b) Except as provided under (c) of this
          section, the damages awarded by a court or  a
          jury  under  (a)  of  this  section  for  all
          claims, including a loss of consortium claim,
          arising  out of a single injury or death  may
          not  exceed  $400,000 or the injured  persons
          life   expectancy  in  years  multiplied   by
          $8,000, whichever is greater.
               (c)  In  an action for personal  injury,
          the  damages awarded by a court or jury  that
          are  described under (b) of this section  may
          not  exceed  $1,000,000 or the  persons  life
          expectancy  in years multiplied  by  $25,000,
          whichever  is greater, when the  damages  are
          awarded   for   severe   permanent   physical
          impairment or severe disfigurement.
               (d)  Multiple injuries sustained by  one
          person as a result of a single incident shall
          be treated as a single injury for purposes of
          this section.
     4     AS  01.10.040(a) provides in part:  Words and  phrases
shall  be  construed  according  to  the  rules  of  grammar  and
according  to  their common and approved usage. When interpreting
statutory  language, [u]nless otherwise defined,  words  will  be
interpreted  as  taking  their  ordinary,  contemporary,   common
meaning.   State  v. Niedermeyer, 14 P.3d 264, 272  n.38  (Alaska
2000)  (quoting Bachlet v. State, 941 P.2d 200, 205 (Alaska  App.

     5    805 P.2d 987 (Alaska App. 1991).

     6     Id.  at  990.  Note that in this case each penetration
was  upheld  as  a  separate crime. Id. at 996.  Nonetheless  the
assault  taken as a whole was described as an incident.   Id.  at

     7    Id.

     8    Id.

     9    Id. at 989-90.

     10   Id. at 989.

     11   950 P.2d 580 (Alaska App. 1997).

12     Id.  at  584  (brackets  in  original,  emphasis  omitted)
(quoting State v. Dunlop, 721 P.2d 604, 609 (Alaska 1986)).

     13   63 P.3d 1009, 1011 (Alaska 2003).

     14    Brief  of Appellee at 14-15, Kodiak Island Borough  v.
Roe, 63 P.3d 1009 (No. S-10058) (Alaska 2003).

     15   63 P.3d at 1016.

     16   Id. at 1016 n.28.

     17   Evans v. State, 56 P.3d 1046, 1053 (Alaska 2002).

     18     See  Websters  Third  International  Dictionary  1142

     19     Miller  v.  LHKM, 751 P.2d 1356, 1361  (Alaska  1988)
(citing Restatement (Second) of Judgments  24(2) (1981)).

     20    See  Erickson, 950 P.2d at 584 (concluding  that  four
types of penetration may result properly in four convictions even
though committed in the course of a single incident); Yearty, 805
P.2d  at  995  ([E]ach count [charging a crime for each  of  four
types  of  sexual penetration for the Carrs Supermarket incident]
thus subjected Yearty to a separate conviction and sentence, even
though all counts arose from the same criminal episode.).

     21   As the court of appeals in Erickson stated:  In Yearty,
this  court  ruled  that  different forms of  sexual  penetration
constitute different forms of indignity and violation,  and  they
thus merit separate punishment.  950 P.2d at 587.

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