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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gibson v. GEICO General Insurance Company (03/02/2007) sp-6106

Gibson v. GEICO General Insurance Company (03/02/2007) sp-6106, 153 P3d 312

     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

MARY GIBSON, )
) Supreme Court No. S- 12109
Appellant,)
) Superior Court No.
v. ) 3AN-04-3508 CI
)
GEICO GENERAL INSURANCE ) O P I N I O N
COMPANY, )
)
Appellee. ) No. 6106 - March 2, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:   Michaela  Kelley   Canterbury,
          Kelley  &  Canterbury,  LLC,  Anchorage,  for
          Appellant.   Susan  D. Mack,  Call  Hanson  &
          Kell, P.C., Anchorage, for Appellee.

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

          MATTHEWS, Justice.

I.   INTRODUCTION
          GEICO  refused  to  pay  on Mary  Gibsons  underinsured
motorist policy, claiming that her damages did not exceed $50,000
and therefore were not high enough to trigger her policy.  Gibson
sued  GEICO,  and a jury determined that her damages amounted  to
$68,611.    Gibson   appeals  several  of  the  superior   courts
determinations, namely:  preventing her from deposing  two  GEICO
employees, preventing a GEICO employee from testifying at  trial,
improperly  identifying GEICO to the jury,  offsetting  the  jury
verdict,   inappropriately   calculating   attorneys   fees   and
prejudgment  interest,  and refusing to review  the  clerks  cost
determination.  Perceiving no error, we affirm.
II.  FACTS AND PROCEEDINGS
          Mary  Gibson  was  injured  when  Mary  Kudlacik  drove
through  a  stop  light  and hit Gibsons car.   Both  Gibson  and
Kudlacik  were  covered  by GEICO insurance.  Gibson  offered  to
settle  for  Kudlaciks  policy limits of $50,000,  and  this  was
accepted.  Gibson  received the $50,000 facial policy  limits  of
Kudlaciks  policy,  plus $12,747.89 in add-ons  for  a  total  of
$62,747.89.   Gibson  informed  GEICO  that  the  policy   limits
settlement  would  trigger an underinsured motorist  (UIM)  claim
under  Gibsons  policy. Gibson appears to have  requested  policy
limits  under her UIM coverage.  GEICO rejected the policy limits
demand  and  declined arbitration.  Gibson demanded  arbitration,
which GEICO again declined.
          Gibson then filed a complaint against GEICO in superior
court  requesting (1) recognition of her UIM claim, (2) a  court-
tried case, (3) damages for her injuries, and (4) attorneys fees,
interest, and costs.  Gibsons complaint did not allege bad  faith
on  the  part  of GEICO.  GEICO denied the magnitude  of  Gibsons
injuries  and  asserted  that Kudlacik was  not  an  underinsured
driver because Gibsons injuries did not exceed the $50,000 policy
limits  she  received under Kudlaciks policy.  GEICO  demanded  a
jury  trial,  which  the  superior  court  granted  over  Gibsons
opposition and cross-motion for a court-tried case.
          The parties proceeded with discovery.  Gibson sought to
depose two GEICO employees, Sue Smith and Michael Lina.  Lina was
identified in GEICOs Civil Rule 26(a)(1) initial disclosures as a
person  likely  to have discoverable information, and  Smith  was
listed  on  GEICOs preliminary witness list.  GEICO moved  for  a
protective order pursuant to Civil Rule 26(c) preventing  Gibsons
attempts to depose its two employees, arguing that Gibsons motive
was  to  harass,  annoy  and burden GEICO  employees  by  seeking
irrelevant  and  inadmissible  testimony.   Gibson  opposed   the
protective order motion and moved to compel the depositions.  The
court heard oral argument on GEICOs motion for a protective order
and Gibsons motion to compel.
          At oral argument, the court decided that the case would
          look  at trial . . . just as any auto  injury
          case would.  Here are our medical bills.  The
          jury  is not going to know what has been paid
          up to date, what insurance policy limits are,
          that there are two carriers.  None of that is
          relevant to their determination, and  all  of
          it   tends   in   fact   to   corrupt   their
          determination, which is . . . what . . . this
          auto  accident is worth . . . .  So Im  going
          to  deny any discovery which goes beyond what
          happened  in  the case . . .  .   [Plaintiffs
          attorney   can  call]  plaintiff,  occurrence
          witnesses,  doctors,  an  economist,  if   he
          wishes, and then were done.
          
Basically,  the  court appears to have denied Gibsons  motion  to
compel  on  the  grounds  that Smith and  Lina  did  not  possess
information relevant to the issues before the jury; that is, they
possessed no relevant information regarding Gibsons damages.
          Gibson then subpoenaed Lina to testify at trial.  GEICO
filed  a motion to quash the subpoena based on the courts  ruling
in  response  to Gibsons motion to compel Linas deposition.   The
court  issued  an order stating that Lina would  not  testify  at
trial  unless  Gibson could demonstrate that  he  had  admissible
testimony  to offer as to disputed facts.  The only  facts  being
disputed, of course, were those surrounding the extent of Gibsons
damages.
          Gibson then sought an order establishing the law of the
case.    Specifically,  Gibson  argued  that  the  courts  orders
impermissibly  redacted GEICOs role from the proceedings.   GEICO
responded  that  it should not be identified as  an  underinsured
carrier  because  that  would  be tantamount  to  disclosing  the
underlying  settlement, and that the adjusters  analysis  of  the
case,  terms  of the insurance policy, the underlying  settlement
for  policy  limits, settlement discussions  and  the  amount  of
coverage  available in the UIM policy are irrelevant to [Gibsons]
damages.
          The  court  denied Gibsons rule of law motion,  stating
that  the  matter  had  already been argued and  explaining  that
revealing the fact and amount of the insurance settlement had the
propensity  to  suggest  to  the jury the  appropriate  range  of
damages awards.  Ultimately, Lina did not testify at trial.
          The  jury  found  that Gibson had suffered  $68,611  in
damages as a result of the collision.1  GEICO moved for entry  of
final  judgment, requesting an offset for Gibsons receipt of  the
$50,000  policy  limits settlement from Kudlacik  and  requesting
Rule 82 attorneys fees as the prevailing party.  Gibson moved for
entry of final judgment on the entire $68,611 award and requested
attorneys  fees, costs, and prejudgment interest on that  amount.
Gibson  also  requested  an  upward variance  from  the  Rule  82
attorney  fee  schedule and asserted that  GEICO  had  failed  to
establish  a  right  to set off Gibsons receipt  of  the  $50,000
policy  limits  settlement  from  Kudlacik.   GEICO  objected  to
Gibsons request.
          The  court  reduced the $68,611 award by  $50,000,  the
principal   amount  received  from  Underinsured   driver,   Mary
Kudlacik.    The  court  calculated  prejudgment   interest   and
attorneys fees based on the reduced award.
          Gibson  requested  costs in the  amount  of  $6,794.35.
GEICO  objected  to  a cost bill in excess  of  $2,717.62  for  a
variety  of  reasons.  The Chief Deputy Clerk  of  Court  awarded
Gibson costs of $3,446.65.  Gibson moved for review of the clerks
award.   The court refused to review the clerks decision  because
Gibson  failed to defend her filing by producing receipts to  the
clerk or addressing [GEICOs] arguments.
          Gibson now appeals.
III. DISCUSSION
     A.   Did   the  Superior  Court  Abuse  Its  Discretion   by
          Prohibiting Gibson from Deposing Lina and Smith?
          
          This court reviews a trial courts discovery rulings for
          abuse of discretion.2  This court exercises its independent
judgment when interpreting a civil rule.3  Gibson argues that the
Alaska Rules of Civil Procedure permitted the deposition of  Lina
and  Smith, that deposing them would likely have led to discovery
of  admissible  evidence, and that Gibson was prejudiced  by  the
courts  limitations.  GEICO argues that Linas and  Smiths  mental
impressions  were  not relevant or likely  to  lead  to  relevant
eviden[ce].
          Gibson  cites Civil Rule 30, which permits a  party  to
depose  any  person  without leave of  court.   Gibson  does  not
mention  Civil Rule 26(b).  Civil Rule 26(b)(1) sets the  default
scope  of  discovery  to  any matter,  not  privileged  which  is
relevant  to  the subject matter involved in the pending  action.
Gibson  concedes  that [t]he only issue of material  fact  to  be
litigated at trial was the extent of damages Gibson sustained  in
the 3/13/01 car wreck.  Gibson argues that because Lina and Smith
investigated her claims, their testimony is relevant to the issue
of   damages.   GEICO  takes  the  position  that  the  adjustors
evaluations of Gibsons damages are irrelevant to Gibsons  damages
and  therefore  not  within the scope of  discovery.   The  court
indicated as much, stating that it would manage this case as a  .
.  . personal injury case to ascertain what the money damages are
.  . . [not as] a broad based bad faith case where we need to get
into  manuals and the heads of adjusters.  Since Smith  and  Lina
had  no  personal knowledge about the extent of Gibsons injuries,
and insurer bad faith was not an issue, we are not persuaded that
the   court  abused  its  discretion  by  determining  that   the
information they could provide at deposition was not relevant  to
the  subject matter involved in the pending action and  therefore
beyond the scope of discovery.4
          Civil  Rule  26(b)(2) permits the court  to  limit  the
scope  of  discovery pursuant to a motion for a protective  order
like  the one brought by GEICO.  Discovery may be limited because
evidence  is unreasonably cumulative or duplicative,  or  .  .  .
obtainable  from some other source that is more convenient,  less
burdensome, or less expensive5 or because the burden  or  expense
of  the  proposed discovery outweighs its likely benefit,  taking
into  account  . . . the importance of the proposed discovery  in
resolving  the  issues.6  Even if deposing the  claims  adjustors
might have led to some information on damages, the likely benefit
of such information seems small given the availability of medical
records and testimony.  Gibson does not assert that the adjustors
possessed  personal  knowledge  about  her  damages.   Since  the
relevant information the adjusters had was obtainable from  other
sources  and  the  bulk  of  their testimony  was  likely  to  be
tangential to the issue of damages, a conclusion that the  burden
of  the  discovery outweighed its likely benefit would have  been
within the courts discretion.
     B.   Did  the Superior Court Abuse Its Discretion by  Ruling
          that Lina Would Not Testify at Trial?
          
          The  appropriate  standard of  review  for  evidentiary
decisions  is  abuse of discretion.7  The court ruled  that  Lina
would  not testify at trial unless Gibson could demonstrate  that
          he had admissible testimony to offer as to disputed facts.  Under
the  courts  analysis, Gibsons grounds for  subpoenaing  Lina  to
testify did not raise disputed issues of material fact.
          In  Gibsons  opposition to GEICOs motion to  quash  the
subpoena of Lina, Gibson stated that Linas testimony was
          relevant  to  the  facts of  the  tortfeasors
          insurance  liability  amount,  the  fact   of
          settlement  for  the  liability  policy,  the
          terms   of  the  insurance  contract  between
          [Gibson]  and  [GEICO] that is the  basis  of
          this  lawsuit, the basis of GEICOs denial  of
          [Gibsons]  complaint  against  GEICO,  GEICOs
          investigation  to  the  extent  of   injuries
          [Gibson] sustained in the subject car  wreck,
          [Gibsons]     credibility    and     [GEICOs]
          credibility.
          
Basically,  Lina would testify as to the insurance  contract  and
the insurance settlement.
          Gibson  suggests that the court determined  that  Linas
testimony  would be inadmissible under Evidence Rule  411,  which
disallows  evidence of insurance to show negligence but  not  for
other  purposes.  The courts order is more appropriately grounded
in  Evidence  Rule  403,  which  permits  exclusion  of  relevant
evidence  where,  among  other things,  its  probative  value  is
outweighed  by  the  danger of unfair prejudice.   In  its  order
denying  Gibsons  rule  of law motion, the  court  cited  Central
Bering  Sea  Fishermens Assn v. Anderson,8 a wrongful termination
and  defamation  case  brought by a former  employee  of  Central
Bering  Sea.  The jury awarded the plaintiff punitive damages  on
her  defamation  claim.9  Central Bering Sea  appealed,  arguing,
among  other things, that the superior court erred by instructing
the  jury  on the existence and amount of the statutory  punitive
damages cap.10  This court agreed with Central Bering Sea, holding
that  [p]utting  the caps before the jury carried  a  substantial
risk  of  suggesting  the range of appropriate  punitive  awards.
Moreover,  no  countervailing benefit could be  gained  from  the
instruction.11
          The  superior court appears to have used Central Bering
Sea  as  legal  support  for  a Rule  403  analysis.   The  court
concluded  that  evidence  of  the  insurance  settlement,   like
knowledge  of  the  punitive damages cap, had the  propensity  to
suggest  the  appropriate  range  of  awards.   Evidence  of  the
insurance  settlement may have been relevant, but  its  probative
value on the issue of damages was slight.  As such, any probative
value  was  easily  outweighed by the danger of unfair  prejudice
that  might  result  from  suggesting the  appropriate  range  of
damages  awards.  Therefore, evidence of the insurance settlement
was  inadmissible under Rule 403.  Since Lina would be called  to
testify  as  to  the insurance settlement, and Gibson  failed  to
demonstrate  that Lina would be able to testify  as  to  damages,
Linas testimony was inadmissible under Rule 403.
          Gibson also argues that the courts order barring  Linas
testimony  resulted in the jury being unaware of GEICOs  identity
          and role in the case.  However, as is discussed in the next
section,  the jury knew that GEICO was the defendant  and  Gibson
was  the plaintiff.  Therefore it knew both the identity of GEICO
and its adverse relationship with Gibson.
     C.   Was   the   Superior  Courts  Framing   of   the   Case
          Inappropriate?
          Gibson  makes a more general argument that the superior
court  improperly  limited disclosure of relevant  facts  to  the
jury.  Gibson argues that the insurance contract was the basis of
her claim and therefore it was necessary evidence.  Gibson argues
that  because  of  the  courts limitations on  the  evidence  she
presented, she was unable to explain to the jury why the  parties
were  even  litigating.  Gibson seems to claim  that  the  courts
rulings  amounted  to hiding GEICOs identity from  the  jury  and
resulted  in charades in trial[].  What she seems to  take  issue
with is the way in which the court framed the case.
          Gibson  cites a number of Florida cases to support  her
contention that failure to advise the jury of GEICOs role in this
case  is reversible error.  GEICO responds that the Florida cases
do  not  mean that a plaintiff in Florida is entitled to  solicit
testimony about why the carrier refused to pay policy limits.
          Gibson  relies  principally on Lamz  v.  GEICO  General
Insurance Co.,12  although she also cites virtually all of  Lamzs
predecessors  and  progeny.   The  Lamzes,  the  victims  of   an
automobile  accident, sued both the driver of  the  vehicle  that
injured  them  and  the  vehicles  owner.13   GEICO,  the  Lamzes
underinsured  motorist carrier, was also joined as a defendant.14
The  trial court denied the Lamzes request to specifically  refer
to  GEICO as a UIM carrier, reasoning that reference to GEICO  as
the Lamzes insurance company was sufficient to alert the jury  to
the  position  of  the parties.15 The Supreme  Court  of  Florida
disagreed, concluding:
          Identifying the insurance company as merely a
          plaintiffs  insurer  without  clarifying  the
          full  capacity in which it is being sued does
          not   make  the  jury  fully  aware  of   the
          underinsured   carriers   posture   in    the
          litigation. . . .  We have made it clear that
          the jury should know who the parties are, and
          in this case, the jury was not fully apprised
          of Geicos specific party status.[16]
          
          Gibson  argues  that  the jury was  unaware  of  GEICOs
posture in the litigation reviewed here because the jury did  not
know  that  GEICO was Gibsons UIM carrier.  Lamz and the  related
cases  Gibson cites can be distinguished on the ground that  they
involved  more  than  two parties.  Because there  were  multiple
defendants  in  Lamz,  and because GEICO was  identified  as  the
Lamzes insurance carrier, the relationship between GEICO and  the
other  defendants  was not clear.  The jury  might  have  thought
GEICO,  as the Lamzes insurer, had an interest in maximizing  the
liability  of  the driver and owner of the vehicle that  collided
with  the Lamzes.  In that case GEICOs interests would have  been
aligned  with  the  Lamzes for the purposes  of  determining  the
          liability of the tortfeasor.  But since GEICO was the Lamzes UIM
carrier,  GEICO  actually  had  an  interest  in  minimizing  the
liability  of  the other defendants and therefore  had  interests
that  were  entirely adverse to the Lamzes.  The  extent  of  the
adversity between parties seems to be what the Supreme  Court  of
Florida meant by the underinsured carriers posture.  The charades
in  trial to which Gibson refers occur when the interests of  the
parties  are  not clear and the jury might not realize  that  the
insurance   companys  interests  are  aligned  with   their   co-
defendants.   In  this  case, there  is  little  chance  of  such
confusion.   GEICO  was the sole defendant.   The  only  disputed
issue was the extent of Gibsons damages.  It was apparent to  the
jury that GEICO was trying to minimize Gibsons damages.  There is
no  reasonable possibility that the jury was led to believe  that
GEICO  and Gibson were not completely adverse parties.  Thus  the
Florida  courts  reasoning in Lamz is not applicable  in  Gibsons
case.
     D.   Did the Superior Court Abuse Its Discretion by Reducing
          the Jury Verdict?
          
          This  court reviews the superior courts setoff decision
de  novo.17   Gibson  argues that the superior  court  improperly
reduced  the  jury  verdict  by $50,000.   Gibson  relies  on  AS
09.17.070, a statutory version of the collateral source rule that
allows  judges,  in certain circumstances, to  reduce  awards  to
reflect  unsubrogated payments from collateral sources.   But  AS
09.17.070 does not apply to this situation since payments from  a
tortfeasors  insurance  company  are  not  considered  collateral
payments.18
          Gibson  agrees  that  UIM coverage  may  not  duplicate
amounts  payable  under bodily injury coverage.  However,  Gibson
asserts that GEICO failed to show that the amount awarded by  the
jury duplicates the $50,000 paid by Kudlacik.  Gibson argues that
the  jury verdict of $68,611 does not contain all of Gibsons past
medical  expenses, past wage loss, and future  damages  and  that
there was no double recovery because these uncompensated measures
of  damages by the jury were included in the funds received  from
the  tortfeaser.  Gibson asserts that the offset lacked a factual
basis.
          The factual basis for a reduction of the jury award was
established by Gibsons claim.  The thrust of a UIM claim is  that
the insured suffered some quantifiable amount of damages and that
the  tortfeasors  insurance  covered  only  a  portion  of  those
damages.  The reason Gibson sued GEICO was to establish that  the
entire amount of her damages exceeded the $50,000 payment she had
already  received.  Since the whole point of  the  trial  was  to
determine  the  entire amount of damages,  it  was  necessary  to
reduce  the ultimate jury award by $50,000.  The special  verdict
form indicates that the jury determined the damages  suffered  by
plaintiff  .  .  .  as  a  legal result of  the  March  13,  2001
automobile  collision[.]  The jury was required to  enter  dollar
amounts  in  each  of  the  following  categories:  past  medical
expenses,  future medical expenses, past wage loss,  future  wage
loss,  past  pain and suffering, future pain and suffering,  past
          emotional distress, future emotional distress, past loss of
enjoyment  of  life,  future  loss of  enjoyment  of  life,  past
inconvenience,  and future inconvenience.  It is unclear  exactly
what  Gibson believes the jury might have overlooked  given  this
comprehensive itemization of all damages from the accident.
     E.   Did   the  Superior  Court  Abuse  Its  Discretion   by
          Calculating  Prejudgment Interest Based on the  Reduced
          Amount?
          
          Gibson  argues  that  the superior  court  should  have
calculated  prejudgment interest based on the  jurys  finding  of
total  past damages of $64,161.  Prejudgment interest is  awarded
to  compensate prevailing plaintiffs for the time value of money.
When Gibson received the $50,000 settlement, she received add-ons
that  included  prejudgment interest, compensating  her  for  the
difference in value between the $50,000 in damage at the time  of
the  accident  and  the  $50,000 she  received  at  the  time  of
settlement.  Since Gibson actually received the $50,000  and  was
awarded  prejudgment interest, she has already  been  compensated
for  any  loss in value of that portion of her damages  that  was
caused  by  the passage of time.  In any case, GEICO as  the  UIM
carrier  was  only  liable  for damages  in  excess  of  $50,000.
Prejudgment interest was awarded on the excess.  We see no error.
     F.   Did   the  Superior  Court  Abuse  Its  Discretion   by
          Calculating Attorneys Fees Based on the Reduced Amount?
          
          An  award  of attorneys fees is reviewed for  abuse  of
discretion   and   will  not  be  overturned  unless   manifestly
unreasonable,  arbitrary or designed for  a  purpose  other  than
justly  deserved compensation.19  Gibson argues that the superior
court  should have calculated attorneys fees based on  the  jurys
verdict  of  $68,611 rather than the $18,611 that remained  after
the superior court reduced the verdict by $50,000.  Gibson relies
primarily  on the language of the collateral source  statute,  AS
09.17.070,  and  Falconer  v. Adams.20   GEICO  argues  that  the
insurance  contract limited attorneys fees in UIM  cases  to  the
limit  of  liability of [UIM] coverage.  GEICO also  argues  that
Alaska  case law requires attorneys fees to be based on net,  not
gross recovery.
          In  Falconer this court was called upon to interpret AS
09.17.070, which, as we have stated above, does not apply.21  Thus
this argument fails.
          Gibson  also argues that the superior courts  award  of
attorneys  fees  was  an abuse of discretion.   Gibson  does  not
allege bad faith and seems to argue that an upward variance would
have been reasonable, not that denial of the upward variance  was
an  abuse  of discretion.  Gibson focuses her argument on  GEICOs
refusal  to  arbitrate.   Gibson reasons that  arbitration  keeps
costs  down and that [w]hen an insurer forces an expensive  forum
upon  its  insured,  the  costs and risks  of  implementing  that
expensive  forum  should  be completely  borne  by  the  insurer.
Gibson is probably right that arbitration would have been a  less
expensive  way  to  resolve  this  case   UIM  claims  often  are
arbitrated.   Moreover, it is possible that GEICO litigated  this
          case influenced by considerations apart from the case at bar  a
ground warranting an adjustment in scheduled fees.22  But this is
only  hinted  at by Gibson, and it is countered by  GEICO,  which
notes  that  it made an offer of judgment that was only  slightly
below  the  jury verdict.  On balance, while enhanced fees  might
have  been reasonable, we are unable to conclude that it  was  an
abuse of discretion for the court to refuse to award them.
     G.   Did  the  Superior  Court Abuse Its Discretion  by  Not
          Reviewing the Clerks Cost Determination?
          
          This  court  reviews a trial courts cost  determination
for  an abuse of discretion; demonstrating an abuse of discretion
requires  a  showing  that the award was  arbitrary,  capricious,
manifestly unreasonable, or improperly motivated. 23
          Gibson  argues  that the superior court was  manifestly
unreasonable in upholding without a hearing the clerks  reduction
of  her costs.  Gibson filed a cost statement, GEICO objected  to
the  amount  of  costs,  and Gibson did  not  respond  to  GEICOs
objections.    After  reviewing  [Gibsons]  cost  statement   and
[GEICOs]  opposition,  the clerk reduced Gibsons  requested  cost
award.  Gibson then filed a motion to review the cost bill, which
the court denied, stating:
          [Gibson]   did  not  defend  her  filing   by
          producing receipts to the clerk or addressing
          [GEICOs]  arguments .  .  .  .   Because  she
          denied  the  clerk this data, the court  will
          not now review [the clerks denial] de novo at
          this time.
          
          Gibsons argument is that the denying of her motion  for
review  of the cost award because she failed to produce  receipts
to  the  clerk was error because a party does not have to provide
receipts  to  the  clerk  unless the clerk specifically  requests
receipts. But Civil Rule 79(d)(2) states:
          The  clerk  may deny costs requested  by  the
          prevailing party on grounds that .  .  .  (2)
          the  party  failed to provide . . .  adequate
          supporting documentation following a  request
          by the clerk or another party[.]
          
(Emphasis   added.)   GEICO  specifically  requested   additional
supporting  documentation.   Gibson  did  not  respond  with  the
documentation  GEICO  requested.   The  clerks  denial  thus  was
justified under the rule.
          Gibson  also  challenges several specific cost  awards.
Gibson appears to believe that GEICOs failure to respond to  this
section  of  her  opening brief means that  GEICO  concedes  that
Gibsons  arguments  to this Court require  remand  to  the  trial
court.  That assertion is without merit.  An appellees failure to
respond  to a particular argument is not a concession as  to  its
validity.24
          Gibson  argues that the clerk improperly  denied  Linas
subpoena  fee  on the grounds that the subpoena  costs  were  not
necessarily incurred in the action.  GEICO requested that process
server  fees  be  reduced to $225 (the amount for five  subpoenas
          including mileage) unless Gibson provided an itemized receipt.
Gibson did not provide an itemized receipt.  Therefore, the clerk
did  not  reduce the fees because the costs were not  necessarily
incurred,   but   because  Gibson  failed  to  provide   adequate
supporting documentation following a request by GEICO.  As  noted
above, this ground for denying costs is explicitly allowed  under
Rule 79(d)(2).
          Gibson  also  argues that it was plain  error  for  the
clerk  to  reduce fees to $225 rather than award  her  $270  (the
amount  for  six  subpoenas including  mileage).   Because  GEICO
agreed  to an award of $225, and because Gibson failed to provide
adequate  supporting documentation following a request by  GEICO,
the reduction was not clearly erroneous.
IV.  CONCLUSION
          The  superior  court did not abuse  its  discretion  by
denying Gibsons motion to compel depositions of Smith and Lina or
by quashing Gibsons subpoena of Lina.  The superior court did not
err in failing to advise the jury of GEICOs status as Gibsons UIM
carrier  because  there  was no chance  of  confusion  about  the
posture of the parties.  The superior court properly reduced  the
jury  verdict  by the amount of Gibsons previous  settlement  and
properly calculated attorneys fees and prejudgment interest based
on  the  reduced amount.  The superior court did  not  abuse  its
discretion by refusing to review the cost award.
          The superior courts judgment is AFFIRMED.
_______________________________
     1     Shortly  before trial GEICO made an offer of  judgment
under  Civil  Rule  68  to  settle  the  case  for  $15,000  plus
prejudgment interest, costs, and attorneys fees.  Gibson did  not
accept this offer.

     2     Fletcher  v.  S.  Peninsula Hosp., 71  P.3d  833,  844
(Alaska 2003).

     3     S.S.M. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 3 P.3d 342, 344 (Alaska 2000).

     4    Alaska R. Civ. P. 26(b)(1).

     5    Alaska R. Civ. P. 26(b)(2)(I).

     6    Alaska R. Civ. P. 26(b)(2)(iii).

     7    Buster v. Gale, 866 P.2d 837, 841 n.9 (Alaska 1994).

     8    54 P.3d 271 (Alaska 2002).

     9    Id. at 279.

     10    Id. at 280-81.

     11    Id. at 281 (footnotes omitted).

     12    803 So. 2d 593 (Fla. 2001).

     13    Id. at 594.

     14    Id.

     15    Id.

     16    Id. at 595-96 (emphasis added).

     17    Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002).

     18    Chenega Corp. v. Exxon Corp., 991 P.2d 769, 790 (Alaska
1999)  (In  general,  a  court  will  not  reduce  a  tortfeasors
liability to a victim when the victim receives compensation  from
a  collateral source.  On the other hand, payments  made  to  the
victim  from  non-collateral sources   such  as  the  tortfeasors
insurance  company or a joint tortfeasor  reduce the  tortfeasors
liability.) (footnotes omitted).

     19     Fairbanks  Builders,  Inc. v.  Sandstrom  Plumbing  &
Heating,  Inc.,  555  P.2d 964, 966-67 (Alaska  1976)  (footnotes
omitted).

     20    974 P.2d 406 (Alaska 1999).

     21    Id. at 411; see supra note 18 and accompanying text.

     22    Civil Rule 82(b)(3)(J) provides:

               The  court  may  vary an  attorneys  fee
          award calculated under subparagraph (b)(1) or
          (2)  of  this rule if, upon consideration  of
          the   factors   listed   below,   the   court
          determines a variation is warranted:
          
               . . .
          
                 (J)  the  extent  to  which  the  fees
          incurred by the prevailing party suggest that
          they  had  been  influenced by considerations
          apart  from the case at bar, such as a desire
          to  discourage claims by others  against  the
          prevailing party or its insurer[.]
          
     23    Sourdough Dev. Servs., Inc. v. Riley, 85 P.3d 463, 466
(Alaska  2004)  (quoting Fernandes v. Portwine, 56  P.3d  1,  4-5
(Alaska 2002)).

     24     In  fact an appellees brief is not mandatory  in  the
sense  that an appeal will be resolved against an appellee if  it
does  not  file  a  brief.   This  court  has  denied  relief  to
appellants in a number of cases in which no appellees  brief  was
filed.   See, e.g., Municipality of Anchorage v. Suzuki, 41  P.3d
147  (Alaska 2002); Riddell v. Edwards, 32 P.3d 4 (Alaska  2001);
Calvo v. Calhoon, 559 P.2d 111 (Alaska 1977).

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