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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Petrolane Incorporated v. Robles (03/23/2007) sp-6113

Petrolane Incorporated v. Robles (03/23/2007) sp-6113, 154 P3d 1014

     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,


d/b/a PETROLANE GAS, Soldotna, )
Alaska, )
) Supreme Court No. S- 11042
Appellant, )
) Superior Court No.
v. ) 3AN-94-9755 CI
Appellee. ) No. 6113 - March 23, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Eric J. Sanders, Judge.

          Appearances: L.G. Berry, Robertson, Monagle &
          Eastaugh,  Anchorage, for Appellant.   Laurel
          J.   Peterson,  Law  Office  of   Laurel   J.
          Peterson, Anchorage, for Appellee.

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

          CARPENETI, Justice.
          EASTAUGH, Justice, with whom MATTHEWS, Justice,  joins,
dissenting          in part.

          Is  a  non-settling  defendant tortfeasor  entitled  to
offset  against his liability to the plaintiff the  amount  of  a
settlement  between the plaintiff and a settling  defendant?   We
conclude that under a pure several liability regime such as  ours
the  non-settling defendant is entitled to an offset only to  the
extent of the settling defendants share of the damages.
          A  jury  found Petrolane Incorporated and Gary  Robles,
but  not Shoreside Petroleum, liable for a propane tank explosion
that  severely injured Robles and Robert Gannaway.   We  remanded
for  a  new  trial on whether Shoreside could have  been   liable
under  a  negligence  theory excluded by the  trial  court.   The
remand  required reconsideration of the comparative fault of  all
of  the  parties, but maintained the first jurys findings  as  to
Petrolane,  Robles,  and  Gannaway.   Before  the  first   trial,
Gannaway and Petrolane had settled: In return for a cash  payment
from Petrolane, Gannaway assigned to Petrolane ninety percent  of
any  award he might obtain from Robles.  After the second  trial,
the  superior court reduced Robless liability to Gannaway by  the
full settlement amount.  Because under a several liability regime
such  as ours Robles is entitled to an offset only to the  extent
of  Petrolanes  share of the damages, we reverse on  this  issue.
Petrolane  also  appeals  the second  trial  courts  decision  to
instruct the jury that Petrolane and Robles must be at least  one
percent liable.  Because we find no error in this instruction, we
affirm on this issue.
          The  factual background of this case was set out in our
opinion  in Robles v. Shoreside Petroleum, Inc.1  In brief,  Gary
Robles  and his customer Robert Gannaway were injured in  October
1993 when Gannaways old and corroded propane tank that Robles was
filling  exploded at the Tesoro station leased  and  operated  by
Robles.   Gannaway  sued Robles, Shoreside Petroleum,  Inc.,  the
propane   supplier,   and   Petrolane  Incorporated,   Shoresides
wholesale   propane  distributor;  Robles  sued   Shoreside   and
Petrolane.   Before  the  first trial,  Petrolane  and  Shoreside
settled  with  Gannaway,  paying him  $400,000  in  exchange  for
releasing  both  companies  from all claims  and  assigning  them
ninety percent of his claims against Robles.
            The  first  jury found Petrolane and  Robles  equally
negligent  in  causing  the  accident  and  allocated  half   the
liability  for  the  accident to each,  and  the  superior  court
entered  judgment  accordingly: Petrolane and  Robles  were  each
liable for fifty percent of Gannaways damages of $358,379.73  and
Petrolane  was  liable  to Robles for  half  of  his  damages  of
$871,216.19.   Superior Court Judge Michael  Wolvertons  judgment
incorporated  Gannaways pre-trial settlement, offsetting  Robless
award  against Petrolane by Gannaways award against  Robles,  and
ordering Petrolane to pay Robles the difference.2
          We  reversed and remanded for retrial on the  issue  of
Shoresides negligent failure to warn and on the related issues of
causation  and comparative fault,3 but noted that  there  was  no
reason to disturb the jurys determination on the issue of overall
damages.4   This  outcome  also made it  unnecessary  for  us  to
address   the  superior  courts  incorporation  of  the  Gannaway
settlement into the final judgment.5
          Before   the  second  trial,  Petrolane  and  Shoreside
renewed  their argument that their settlement with Gannaway  made
them assignees of his claims, and that they
  accordingly were entitled to reduce the amount of damages  they
owed  Robles by the amount Robles was liable to Gannaway.  Robles
in  turn asserted that he was entitled to reduce his liability to
Gannaway   by  the  amount  Gannaway  received  from  the   other
defendants  in  his  settlement  meaning he effectively  owed  no
damages to Gannaway.  Superior Court Judge Eric Sanders, to  whom
the  case  was assigned on remand, interpreted language from  our
decision  in Universal Motors, Inc. v. Neary6 as requiring  prior
settlements  to  reduce a plaintiffs trial verdict  by  the  full
amount  of  the  settlements  rather  than  reducing  it  by  the
percentage  of  fault attributed to settling tortfeasors.   Judge
Sanders,  considering  the outcome unfair, reluctantly  concluded
that Neary compelled him to agree with Robless position, even  if
the decision would, in all likelihood, be reversed.
          Judge  Sanders informed the second jury in  Instruction
No.  7 of the first jurys determinations that both Petrolane  and
Robles  were negligent, that their negligence was a cause of  the
harm,  and that Shoreside negligently trained Robles.   The  jury
was  told  the court (as opposed to another jury) had made  these
determinations and was instructed not to reexamine  these  issues
or discuss why the court decided them.
            While  the  second  jury  concluded  that  Shoreside,
Petrolane,  and  Robles were all negligent, it  found  that  only
Petrolane  and Robless negligence was a legal cause of the  harm.
The  jury attributed 56.25% of the responsibility to Robles,  and
43.75% of the responsibility to Petrolane.
          Petrolane  appeals  the superior courts  decision  that
full offset was required  and the superior courts Instruction No.
          We   review  questions  of  law  and  a  trial   courts
application of law to fact de novo, adopting the rule of law most
persuasive in light of precedent, reason, and policy.7   We  also
review  de  novo jury instructions to which timely objection  was
     A.   The Superior Court Erred in Applying a Full Offset.
          Petrolanes  first  argument  on  appeal  is  that   the
superior court erred in ruling
that  under  AS  09.17.080(d)  the pre-trial  settlement  between
Gannaway,   Shoreside,   and   Petrolane   extinguished   Robless
obligation  to  pay  his  proportion  of  Gannaways  damages   to
Petrolane   following   the   second   trial.    Alaska   Statute
09.17.080(d) states: The court shall enter judgment against  each
party liable on the basis of several liability in accordance with
that partys percentage of fault.9

          1.   Robles is entitled to a proportionate share offset
               for Petrolanes settlement with Gannaway.
          Upon  remand, Judge Sanders raised the issue of whether
Petrolane  and  Shoreside,  having received  an  assignment  from
Robert Gannaway for money Gary Robles owes him, are entitled to a
credit for what they may be required to pay Robles as a result of
this courts eventual judgment.10  The court concluded that Robles
owes  nothing  for Gannaways damages despite a  jury  finding  of
fault  against  Robles,   because  our  Neary  decision  supports
          Robless argument that he is entitled to offset amounts Gannaway
received from other defendants.  The court noted that this result
was  inconsistent  with  the principles  behind  Alaskas  several
liability statute, but believed that Neary required this outcome.
          Petrolane  offers five reasons why the superior  courts
holding  was  erroneous,  arguing that (1)  the  superior  courts
decision is based only on Neary dicta,  and that, as the superior
court  suggested, Neary was distinguishable because  it  involved
the  threat  of  double recovery in multiple  lawsuits;  (2)  the
superior  courts decision contradicts the plain  language  of  AS
09.17.080(d);  (3) the decision runs against case  law  in  other
jurisdictions and the near-universal rule that [full] credit [is]
inapplicable   in   jurisdictions  in   which   joint-and-several
liability  ha[s] been modified or abolished; (4) the voters  have
indicated  a  clear preference for individual  defendants  to  be
liable  for  their  proportion of fault; and  (5)  allowing  non-
settling  tortfeasors  to  receive the  benefit  of  a  favorable
settlement   negotiated  by  the  plaintiff  creates   a   strong
disincentive to settle cases.
          Robles   replies  that  past  cases,  including  Neary,
require that payment received by a plaintiff must be deducted  by
the damages recoverable from other tortfeasors so that plaintiffs
may  not collect more than the jurys final determination of their
damages.  However, the nature of an offset for a prior settlement
under  this version of subsection .080(d) is a question of  first
impression,  and  Robles fails to squarely address  whether  full
offsets  are  appropriate  under  pure  several  liability.    As
explained   below,  we  agree  with  Petrolane  and   adopt   the
proportionate share approach for offsets of prior settlements  in
single-suit, multi-defendant cases.
          Over  time Alaska has moved from a tort regime premised
on  joint  and  several  liability,  where  a  marginally  liable
defendant  could  end up paying for the entire  harm,  towards  a
system  focused  on  linking  a  defendants  liability  to   that
defendants comparative share of the harm.  As we have noted:
          [A]t  common law, and in Alaska before  1970,
          joint  tortfeasors were jointly and severally
          liable   and   did  not  have  a   right   of
          contribution   against   each   other.    The
          legislature  granted  joint  tortfeasors  the
          right of contribution in 1970 by enacting the
          Alaska     Uniform     Contribution     Among
          Tortfeasors   Act.    That   act   explicitly
          precluded   intentional   tortfeasors    from
          seeking     contribution.     Tort     reform
          legislation  in 1986 amended the contribution
          act, and required that the liability of joint
          tortfeasors be determined by each tortfeasors
          percentage of fault.[11]
          The  1986 legislation was in turn amended in 1988  when
the voters passed the Tort Reform Ballot Initiative (initiative),
which  moved Alaska from modified joint and several liability  to
pure several liability.12  The initiative amended AS 09.17.080(d)
such that each party [would be] liable only for damages equal  to
          his or her share of fault and repealed statutory sections
concerning contribution between tortfeasors.13  The initiative was
designed  to  ensur[e]  that  people  are  held  accountable  for
injuries  or  damages they cause, and thus continued the  general
trend towards increasing emphasis on comparative fault.14
          Granting Robles a full offset that would eliminate  his
liability would require us to ignore the development of  our  law
and  the  central purpose of the initiative. The voters  did  not
intend  for  tortfeasors like Robles, who have been found  liable
for  a  portion of a plaintiffs harm, to escape paying for  their
share  of the harm because of another defendants settlement  with
the  plaintiff.   As the statement in support of  the  initiative
noted,  [i]f  Ballot  Measure 2 is passed and  you  do  something
wrong,  you pay for it.15  Because allowing Robles a full  offset
would  run counter to the intent behind the initiative, we reject
his argument.
          Robles  cites Bohna v. Hughes, Thorsness, Gantz, Powell
& Brundin16 and Navistar International Transport Corp. v. Pleasant17
for  the proposition that a [defendant] is entitled to offset the
amount  of  any settlement against the jury verdict in  order  to
avoid   double  recovery,  and  consideration  received   [in   a
settlement  agreement] operates as payment  pro  tanto  upon  any
judgment  obtained against [other tortfeasors].  He  argues  that
these cases were decided on the basis of our opposition to double
recovery.   However, these cases are distinguishable:  Bohna  and
Navistar  were decided under joint and several liability  regimes
that  included  statutory  provisions  requiring  full  offset.18
Moreover, the rule against double recovery is grounded  in  joint
and  several  liability.   In  that context,  the  plaintiff  has
overlapping  remedies, which is to say that  he  or  she  can  be
compensated by any liable defendant, and the rule is necessary to
ensure  that  such overlapping remedies . . .   must  not  become
multiple remedies.19  But since the pure several liability regime
enacted  by initiative in 1988  repealed the express availability
of full offsets and because a defendants liability under the 1988
law was limited by comparative fault, there is no reason to allow
a  non-settling defendant full offset under the 1988 law.  As the
Texas Supreme Court noted:
          [Under  several  liability]  [t]he  reasoning
          behind   the  one  recovery  rule  no  longer
          applies  .  .  .  .  Because each  defendants
          share  can  now be determined,  it  logically
          follows  that  each  may  settle  just   that
          portion   of   the   plaintiffs   suit.   The
          settlement does not affect the amount of harm
          caused   by  the  remaining  defendants   and
          likewise should not affect their liability.[20
          The  cases Robles relies upon are grounded in joint and
several  liability, and we see no reason (nor has Robles  offered
any)  to  apply  a  rule permitting full offset  in  the  several
liability context.21  Instead, we join the United States  Supreme
Court,22 the majority of other jurisdictions23 and the Restatement
(Third)  of  Torts24  in adopting the proportionate  share  rule.
          Under this approach non-settling defendants are entitled to
offset  the plaintiffs damages in proportion to settling  parties
comparative  fault.  Thus, Robles is entitled to  an  offset  for
only  Petrolanes 43.75% share of the harm, and therefore  remains
liable  for  56.25% of Gannaways damages.  Petrolane  may  deduct
ninety  percent of this amount from the monies it owes to  Robles
according to its assignment agreement with Gannaway.
          While  this approach recognizes the possibility that  a
plaintiff  will secure total recoveries in excess of her  damages
as  later determined by a jury (in a trial without all defendants
present),  there  is  no  injustice in this  result  because  the
plaintiff  bears the reciprocal risk of settling with a defendant
for  less than that defendants comparative share of the  harm  as
later  determined by a jury, and may therefore end up  collecting
less  than  her damages as determined by the jury.   To  conclude
otherwise would lead to significant unfairness because  it  would
grant a non-settling defendant the benefit of a bargain for which
he bore no risk.  As the Restatement (Third) of Torts explains:
          [A]  plaintiff  may  recover  more  than  the
          damages determined by the fact finder.   That
          occurs  when the plaintiff settles  with  one
          defendant  for  an  amount greater  than  the
          settling tortfeasors comparative share of the
          plaintiffs   damages.    This    result    is
          appropriate;  since the plaintiff  bears  the
          risk  of  an inadequate settlement (in  which
          case the plaintiff will recover less than the
          damages  determined by the fact finder),  the
          plaintiff should also obtain the benefit of a
          favorable    settlement.     Limiting     the
          plaintiffs recovery to the damages determined
          by   the   fact  finder  would   provide   an
          unjustified   windfall  to  the   nonsettling
          Indeed,  allowing full offsets under several  liability
would  discourage settlement because a rational  defendant  would
delay  resolving  the case in the hopes that  another  defendants
settlement would reduce or eliminate his liability.26  Our strong
policy   favoring  settlement  as  a  positive  method  of   case
resolution27 is a further reason to favor proportionate (pro rata)
          This  conclusion  is  also  supported  by  the  overall
uncertainty  associated with settlement values.  While  the  full
offset  rule  assumes  a direct relationship  between  settlement
value  and  a  plaintiffs actual damages, in practice  settlement
amounts  reflect  complicated and opaque considerations  such  as
settling parties respective risk propensities, the value of peace
from   further  litigation,  and  a  settling  partys   immediate
financial  situation.  The value of a settlement is not perfectly
related  to a plaintiffs actual damages  indeed, the relationship
may  be  only  a  rough  approximation   and  thus  there  is  no
inconsistency  or unfairness in allowing a plaintiff  to  recover
more  or less through partial settlement than the plaintiff could
receive at trial.28
          Moreover,  we  are  unconvinced that Universal  Motors,
Inc. v. Neary29 requires a full offset in this case.  The superior
court  read  Neary  as entitling Robles to offset  [the]  amounts
Gannaway  received from other defendants.  Universal Motors,  the
appellant in Neary, argued that inconsistent adjudications  would
occur and plaintiffs might receive double recovery if we did  not
adopt the rule that a plaintiff may only bring one action in tort
to  obtain relief from all possible tortfeasors.30  Specifically,
Universal  Motors  offered a hypothetical situation  in  which  a
Plaintiff, P, sued one defendant, D1, in one action and the  jury
allocated fault evenly between them.31  If P then sued  a  second
defendant,  D2,  Universal Motors contended that the  jury  could
allocate fifty percent of fault to D2.32  Consequently, Universal
Motors maintained that P could receive full compensation for  his
injuries  even though two juries had found him fifty  percent  at
fault.33  The superior court in this case based its interpretation
of  Neary  on  our  response to this hypothetical.   We  rejected
Universal  Motorss claim that the appellant could  obtain  double
recovery  because  we  held that D2 was entitled  to  offset  his
liability against D1s liability.34  We thus observed that P could
obtain  no more than the jury awarded in the first trial.35   But
Neary  does  not  control this case, for it concerned   the  one-
action rule, which requires a plaintiff to join all defendants in
one  action.   We  discussed  the possibility  of  an  offset  in
response  to  the defendants argument that, without a  one-action
rule,  a  plaintiff  could  separately sue  multiple  defendants,
allowing  plaintiff  to  collect  more  than  full  damages  from
defendants in separate cases; we allowed a full offset to prevent
such an outcome.  That analysis is not applicable where, as here,
the  case  involves multiple defendants in the same  suit.   Both
Robles  and  Petrolane were included in the same action  and  the
jury  made  findings  regarding  the  comparative  fault  of  all
parties.   Consequently,  Neary neither controls  this  case  nor
supports application of a full offset.
          Indeed, our Neary discussion was not inconsistent  with
the proportionate share approach.  In Neary we observed that   D1
would pay for more than its comparative share of the harm and  D2
would pay for less than its share.36  To address this problem  we
noted  that  D1  might be able to secure common law contribution,
and we cited to the Restatement section which recommends allowing
contribution  where all necessary defendants were not  joined  in
the  initial  action.37  Although we did not pass judgment  about
whether  such  a  remedy was then available in Alaska,  we  later
recognized that it was available because it furthered the goal of
apportioning  tort  losses in accordance  with  each  responsible
persons  percentage  of  fault.38  This common  law  remedy  thus
comports  with  the  proportionate  share  approach.   By   suing
defendants  in  two separate actions, the hypothetical  plaintiff
would  undermine the relationship between a partys share  of  the
harm  and  its  actual payments, and contribution would  allow  a
defendant  who overpaid to ensure that he does not end up  paying
for  more  than  his  share  of the harm.   Where,  however,  the
comparative  fault  of all parties has been  jointly  determined,
there  is  no danger of parties over- or under-paying,  and  thus
          neither offsets nor a contribution remedy would be appropriate.
          We  reject the dissents reliance on AS 09.17.080(c)   a
statute  not  cited or relied upon by the appellee in  this  case
and  the  dissents interpretation of that statute.  As of October
6, 1993, when the accident occurred, AS 09.17.080(c) provided:
               The  court shall determine the award  of
          damages  to each claimant in accordance  with
          the findings, subject to a reduction under AS
          09.16.040,  and enter judgment  against  each
          party liable.  The court shall also determine
          and   state  in  the  judgment  each   partys
          equitable  share  of the obligation  to  each
          claimant  in  accordance with the  respective
          percentages of fault.
But  in  1988  the  voters by initiative had repealed  AS  09.16,
including AS 09.16.040.  This case requires us to determine  what
effect, if any, we should give to the repealed statute.
          In  Benner  v.  Wichman,39 we held  that  we  were  not
prohibited from examining the repealed statute in interpreting  a
related statute where nothing in the related statute suggests  an
intent  to alter the provisions applicability.40  In the  present
case,  however,  the  related  statute   AS  09.17.080   contains
subsection (d) which, as shown above, directly conflicts with the
notion of fully offsetting a non-settling defendants liability by
a previous settlement by a co-defendant.
          We   are   therefore  not  persuaded  that  former   AS
09.17.080(c)s reference to AS 09.16.040 provides support for  the
dissents  position.  The dissent appears to construe the  subject
to  language of  .080(c) as an invariable command to reduce under
AS  09.16.040,  regardless of that sections repeal.   In  effect,
this  interpretation would require us to read  .080(c) as thought
it  said  that  the  court must determine the award  of  damages,
subject  [it]  to  a  reduction under  AS  09.16.040,  and  enter
judgment.   But as actually adopted, the subject to phrase  omits
the  it.   As  we understand the phrase, subject to  a  reduction
under  AS  09.16.040 simply means that a judgment  entered  under
.080(c)  will  remain  subject to reduction  under  AS  09.16.040
provided that the statue applies  in other words, the phrase just
reserves  the right to apply  .040 to the extent that it  applies
by its own terms.41  Under this view of the phrase,  .080(c) would
not  require  a  reduction under AS 09.16.040 in this  case:  the
reduction  statute does not apply by its own terms here,  because
the  settlement  in this case was reached after the  statute  was
          It  might  seem  tempting to reject this interpretation
because  it  appears to lead to a strange result: why  would  the
electorate have wanted to reserve the right to apply a law it had
just repealed?  One explanation might be simple drafting error on
the  part of the initiatives sponsors.  But another  may  lie  in
the timing of the repeal of  .040 and the adoption of  .080(c).
          Although  .080(c) was adopted at the same time as  .040
was  repealed,  the  effective date of  .040's  repeal  does  not
necessarily establish the date when the repealed law would  cease
          to affect cases to which the new  .080(c) applied.  Since
releases and covenants are contractual, the meaning and scope  of
a  given settlement agreement would be determined by the  law  in
effect when it was reached; conversely, later changes in the  law
governing  settlements would not alter the  existing  settlements
terms.   Thus,  despite  its repeal, AS 09.16.040's  requirements
would  continue  to control any settlements reached  before  that
statutes repeal in actions filed after the repeal.
          On  the  other hand,  .080(c)s new liability provisions
would apply prospectively to new claims accruing after enactment.
Under  the discovery rule, claims for the same injury can  accrue
at different times against different tortfeasors.  Thus, it seems
predictable  that  in  some  cases  accruing  against  particular
tortfeasors after  .080(c)s enactment, there would already be pre-
enactment  settlements  for  the  same  injury  involving   other
tortfeasors against whom claims had accrued at an earlier  point.
Because  .040's reduction requirement would continue to apply  to
these settlements, the drafters of  .080(c) could reasonably have
decided to include language in  .080(c) to cover these situations
by specifying that a judgment under  .080(c) would remain subject
to  a reduction under AS 09.16.040 if that statute applied to the
          This   rationale   might  also  provide   a   plausible
explanation  for  the otherwise unexplained repeal  of   .080(c)s
subject to provision in 1997.  The number of potential new claims
for  injuries  involving  pre-1989 settlements  would  inevitably
dwindle and approach a vanishing point over time.  Thus, by  1997
it  simply  might have become clear that  .080(c)s  reference  to
former  .040 was just a vestige and served no further purpose.
          Alternatively, as noted above,  .080(c)s  reference  to
the  repealed   .040  may  have been a drafting  mistake  by  the
sponsors  of the 1988 initiative.  And the legislative repeal  in
1997  of  .080(c)s subject to provision may have simply reflected
the  legislatures  desire  to rectify this  mistake.   In  either
event,  we  conclude  that  AS  09.17.080(c)s  reference  to   AS
09.16.040 does not compel the result reached by the dissent.   We
likewise   reject  the  dissents  claim  that  AS   09.17.080(c)s
reference to the repealed AS 09.16.040 was critical language that
dictates the result favored by the dissent.
            In  sum, we do not think the voters intended to allow
non-settling  defendants to escape paying  for  harms  that  they
caused.  While we had previously indicated that full offsets were
appropriate  in  the  context  of  multiple  actions  and   joint
liability,  rote  application of the rule  in  the  pure  several
liability  context  would  discourage  settlements  and  lead  to
substantial unfairness.  Proportionate share offsets are  logical
incidents of several liability, and in recognizing them we simply
adopt the most efficient and well-accepted solution.
          2.   Petrolane  did  not waive any legal  arguments  by
               failing  to  make  an offer of proof or  otherwise
               present  the  second trial court with evidence  of
               Gannaways claims.
          Robles  argues,  even  assuming that  Petrolanes  legal
arguments are meritorious, that Petrolane has waived them because
(1)  Petrolane  and  Shoreside presented no  evidence  concerning
[Robless]  liability  for  Gannaways  injuries,  specifically  by
failing to file a motion in limine, present an offer of proof, or
adduce  evidence at the remand trial concerning Gannaways claims;
(2)  this in turn precluded Robles from presenting evidence  that
would  negate  his  potential liability; and  (3)  there  was  no
judgment after the remand that addresses liability on the part of
Robles for Gannaways injuries.
          In  support  of  his argument, Robles quotes  from  our
decision in Agostinho v. Fairbanks Clinic Partnership42 where  we
stated  that a party waives its right to challenge the  exclusion
of  evidence unless an offer of proof as to the substance of  the
evidence  is  made  at the time the evidence is  excluded.43   He
argues  that because no offer of proof was made, appellate review
is  precluded because there is no showing that it was prejudicial
to refuse to admit the excluded evidence.
          The  passage cited by Robles clearly indicates that  an
offer  of proof is needed to challenge the exclusion of evidence.
It is not, however, needed to prevent waiver of a legal argument.
Having  received  an  assignment from  Gannaway  for  his  claims
against Robles, Petrolane asked the superior court to credit  the
assignment  against its liability to Robles.  The superior  court
declined  to  grant Petrolane a credit because it read  Neary  as
requiring  a  full  offset; it reasoned  that  as  Petrolane  had
already paid Gannaway more than the first jurys determination  of
his  damages,  neither Gannaway  nor Petrolane  as  his  assignee
could  collect  from Robles.  The court did not exclude  evidence
it rejected a legal argument.  Furthermore, the evidence that was
related  to  this  legal  issue  Gannaways  settlement  with  and
assignment of claims to Petrolane  was uncontroverted and part of
the  record.   Accordingly, Robless argument regarding offers  of
proof is irrelevant to the disposition of this case.
          Robles  next argues that Petrolanes claim of  a  credit
for Gannaways assignment required relitigating Robless (and other
parties) liability for Gannaways injuries.  He notes that he  was
prepared  to go forward on the issue of his liability to Gannaway
and  that  he was prejudiced by his inability to present relevant
evidence.   Robles is incorrect.  As he himself notes, the  first
jury  found  that  he  was  fifty percent  liable  for  Gannaways
injuries, and that Gannaway had not been negligent at all.  While
we  remanded  to  allow  a  second jury  to  consider  Shoresides
potential  liability and its potential effect on the  comparative
fault  of the parties, we did not disturb the findings concerning
Gannaways  non-negligence or the amount of his  damages  and,  as
explained  in  Part  IV.B.,  the remand  order  did  not  require
reconsideration of the fact that Robles and Petrolane  were  both
partially  liable.44  Robles is thus precluded from  relitigating
his  liability to Gannaway.45  His waiver argument  is  therefore
     B.   The  Superior Court Correctly Instructed  the  Jury  on
          Petrolane and Robless Negligence and Liability.
          We   concluded  our  opinion  in  Robles  v.  Shoreside
Petroleum,  Inc.  by remanding the issue of Shoresides  negligent
failure   to  warn  and  on  related  issues  of  causation   and
          comparative fault.46  Before the second trial, Petrolane moved in
limine  to prohibit instructions, argument, and evidence  related
to  the  jury  findings in the first trial.  The  superior  court
refused  to  grant Petrolanes request.  The court instructed  the
jury  before  trial  that  it  had already  determined  that  (1)
Petrolane negligently trained Gary Robles and that its negligence
was  a legal cause of his harm; (2) Gary Robles was negligent and
that  his  negligence  was a legal cause of  his  own  harm;  (3)
Shoreside negligently trained Gary Robles; and (4) Petrolane  and
Gary Robles were at least one percent at fault.  The instructions
directed  the jury not to reexamine these issues or  discuss  why
the court already decided them.
          Petrolane  maintains that the courts jury  instructions
and comments created two categories of defendants from the outset
one  defendant  (Petrolane) obviously at fault  .  .  .  and  one
(Shoreside)  where the judge could not decide whether  any  fault
existed.    According  to  Petrolane,  [t]his  obvious  dichotomy
prejudiced  Petrolane, by ma[king] it less likely that  the  jury
would  find  Shoreside at fault, by dramatically  alter[ing]  the
nature  of  the proof presented by the parties, and by  rendering
the  jury  unable to truly apportion fault in the manner intended
by  statute and by this Court.   Petrolane argues that this  case
should  be  remanded and the trial court instructed to empanel  a
new jury to reconsider comparative fault.
          Allegedly  erroneous jury instructions are grounds  for
reversal  only if  they were objected to and caused  prejudice.47
The party appealing a trial courts decision to give or refuse  to
give certain jury instructions has the burden of showing that the
instructions caused prejudicial error.48  An error is prejudicial
if  we  determine the verdict would have been different  had  the
erroneous instruction not been given.49  We determine whether  an
error  is prejudicial by placing ourselves in the jurors position
and  considering  whether  the  erroneous  instructions  probably
affected their judgment.50
          Petrolane  does not claim that the court  prevented  it
from  presenting  evidence demonstrating Robless  and  Shoresides
comparatively  high portion of fault and its own lack  of  fault.
Rather,   Petrolane  complains  that  the  jury  never   had   an
opportunity  to  assess  the comparative fault  of  the  parties,
because the trial court periodically informed and instructed  the
jury  that  the  fault of Petrolane and Robles  were  established
facts,  and that it need only determine whether Shoreside was  at
fault.    Petrolane  insists  that [i]n  determining  comparative
fault,  a  jury  must  be presented with all  relevant  liability
evidence, and must draw its own conclusions as to negligence  and
causation  on  the  part  of  each of  the  parties.   Therefore,
Petrolane  continues, there was no reason to  inform  the  second
jury of the bare conclusions of the first jury.  We disagree.
          The  negligence and fault of Petrolane and Robles  were
established by the first jury.51  This court affirmed  the  first
jurys findings of Petrolanes negligence, Robless negligence,  and
their combined legal causation of the accident.  We remanded only
for  determination  of  Shoresides possible  negligence  and  the
comparative   fault  of  all  parties  in  light  of   this   new
          determination.52  Thus, under the doctrine of law of the case, the
trial court properly granted preclusive effect to these findings.
This  doctrine prohibits the reconsideration of issues which have
been  adjudicated in a previous appeal in the  same  case.   Even
issues  not explicitly discussed in the first appellate  opinion,
but  directly  involved  with  or  necessarily  inhering  in  the
decision  will  be  considered the  law  of  the  case.53   Thus,
previously  adjudicated issues may be reconsidered  only  in  the
face  of  exceptional  circumstances  presenting  a  clear  error
constituting  a  manifest  injustice.54   The  reasons  for  this
doctrine  include  (1) avoidance of indefinite  litigations;  (2)
consistency of results in same litigation; (3) essential fairness
between the parties; and (4) judicial efficiency55  in short, all
of   the  concerns  raised  by  Petrolanes  argument.   Had   its
deliberations not been limited by the issues properly decided  in
the  original verdict, the second jury might easily have returned
a verdict contradictory to the portions of the first verdict that
this court already upheld, bogging down courts and litigants in a
confusing and contradictory set of verdicts.
          Petrolane  concedes that law of the case is  applicable
here,  but  argues  that the doctrine has no  effect.   Petrolane
interprets  the  language  of  our  earlier  remand  to   require
determination of not only the issues of Shoresides negligence and
causation between its negligence and the harm and the comparative
fault  of the parties, but also retrial on the negligence of  all
of the parties.  We reject this interpretation.  The error in the
first trial stemmed from the courts refusal to allow presentation
of  a particular theory of negligent conduct by Shoreside.56  Our
remand  required  that  the superior  court  allow  the  jury  to
determine the comparative fault of the parties in light  of  this
additional theory of negligence.57  We did not require the  issue
of  Petrolanes  and Robless negligence to be relitigated  because
the  determination of their negligence was not  hindered  by  the
failure   to  consider  all  the  other  theories  of  Shoresides
          We  also  reject  Petrolanes  argument  that  the  jury
instructions  influenced the jury by creating two  categories  of
defendants for two reasons.  First, the record indicates that the
superior  court sufficiently instructed the jury not to draw  any
inferences  from  the  fact  that the negligence  of  Robles  and
Petrolane had already been determined.  The superior courts  jury
instructions  stated clearly that, aside from  the  facts  listed
above,  it  had  not intended to give the jury any  direction  or
instruction  on  how  it  should  determine  any  partys   actual
percentage  of  fault in this case. The superior court  acted  in
accordance with our remand, telling jurors that what youre  going
to  be  hearing  during the course of this trial is  the  parties
presenting evidence as to who did what to enable you as jurors to
decide  what  percentage of fault should be apportioned  to  what
party.  The court explained that [i]n determining the percentages
of  fault, the jury should consider the nature of the conduct  of
each  person at fault.  The judge went on to note that   although
the  court  has  already  determined . .  .  that  Petrolane  was
negligent,  I havent determined the extent or the degree  of  the
          negligence and the jury may decide it was one percent or fifteen
or  fifty  or seventy-five or ninety-nine percent.  Finally,  the
court cautioned the jury:  dont read anything in that somehow the
judge must be suggesting what the answer is.
          Second,  Petrolane only offers one case in  support  of
its argument: Kava v. American Honda Motor Co., Inc.59  In Kava a
jury  found for the plaintiff on a products liability claim,  and
determined  total damages and apportioned liability  between  the
plaintiff   and  defendant,  but  deadlocked  on  the  plaintiffs
negligence claim.60  We remanded the negligence claim and required
the  second  jury  to  reassess  comparative  fault  because  the
original  jury  verdict  form  did not  distinguish  between  the
products  liability and negligence claims.61   Petrolane  asserts
that  Kava established that instructions referring to the partial
conclusions  drawn  by another jury should  have  been  rejected.
However, in Kava we required comparative fault be retried because
we  found  good  reason to believe that jurors  would  have  been
likely  to  award greater comparative fault to the defendants  if
liability  had  been determined under negligence  as  opposed  to
under  strict liability.62  Nowhere does Kava state that in order
to  apportion fault on a remanded claim, the jury must retry  the
liability  of  other  parties as well.  A new determination  that
Shoreside was liable would have altered the percentage  of  fault
borne  by  each party, but it would not have altered  the  simple
fact  of  Petrolane  and  Robless liability  for  their  already-
established  negligence.  Thus, we do not read  Kavas  conclusion
that  a  new  trial will be necessary on the issue of comparative
fault,63 as indicating that the basic liability of all parties, as
opposed to simply Shoreside, had to be relitigated.64
          In   light  of  these  considerations,  we  hold   that
Petrolane  has  not  met  its  burden  of  showing  that  it  was
prejudiced by the information and instructions the superior court
furnished to the jury.
          Because  we hold that a proportionate share  offset  is
appropriate  under several liability, we REVERSE and  REMAND  the
issue  of  Robless  offset for Petrolanes prior  settlement  with
Gannaway for further proceedings in accordance with this opinion.
Because  we hold that the superior court properly instructed  the
jury about Petrolane and Shoresides negligence, we AFFIRM on this
EASTAUGH,   Justice,   with   whom  MATTHEWS,   Justice,   joins,
          I  respectfully dissent from that part  of  the  courts
opinion  that  declines to subtract the amount  received  in  the
prior  settlement from the damages award for this 1993  accident.
The  result  the  court reaches is contrary to the  text  of  the
statute that controls, AS 09.17.080(c) as it read in 1993.  It is
also  contrary to our decisions that determine how we apply  that
statute and to the principle of compensation that has governed  a
negligent tortfeasors liability in Alaska.
          1.    Introduction.  Our disagreement arises because AS
09.17.080(c)  continued  to  include  the  words  subject  to   a
reduction under AS 09.16.040 after the 1988 initiative eliminated
joint liability by amending AS 09.17.080(d).  That initiative did
not  delete  those  words or otherwise amend subsection  .080(c),
even though it repealed AS 09.16.
          The   courts   opinion   concludes   that   former   AS
09.17.080(c) does not apply here and that the proportionate share
rule   (or  pure  several  liability  regime)  embodied   in   AS
09.17.080(d) does.1  This conclusion is problematic  for  several
          Because the two subsections coexisted side-by-side when
this claim arose in 1993, the court must reconcile them  and  the
principles they embody  if it can.  For reasons I discuss  below,
it  can.   The  court should therefore apply AS 09.17.080(c)  and
subtract the settlement from the award.
          A  more subtle problem may underlie the courts opinion.
It  does  not  seem  to  hold  that subsection  .080(d)  directly
applies;  it  instead seems to resolve the reduction  dispute  by
choosing  to  adopt  the  principle  of  pure  several  liability
embodied  in subsection .080(d) after the 1988 initiative  became
effective.2      Because  the  express   words   of   former   AS
09.17.080(c) apply here, the only justification for not  applying
them must be that a different subsection applies more directly or
that  the  subject  to a reduction language  has  been  at  least
implicitly  repealed  or  amended.  The court  does  not  clearly
engage  in  the  analysis needed to follow either  approach.   If
subsection .080(c) applies, we do not have the option of choosing
to adopt, even by analogy to a principle expressed in a different
statute, a different method of offsetting the prior settlement.
          The  facts  are complex, but they can be simplified  to
this  model: Two negligent tortfeasors caused a person to  suffer
personal  injury  in  1993.   The  plaintiff  settled  with   one
tortfeasor for $80,000 and proceeded to trial against the second.
At  trial  the  jury  found for the plaintiff,  found  plaintiffs
compensatory   damages  to  be  $100,000,  found   the   settling
tortfeasor forty percent responsible for the accident, and  found
the  nonsettling  tortfeasor sixty percent  responsible.3   These
findings  resulted  in  a  jury verdict against  the  nonsettling
tortfeasor  for sixty percent of $100,000.  Were it not  for  the
prior settlement, the liability of the nonsettling tortfeasor per
AS 09.17.080(d) would have been $60,000.
          The   question   here   is  whether   the   nonsettling
tortfeasors liability may exceed the difference between the jurys
          award and the amount plaintiff received in settlement from the
settling tortfeasor.  The plain words of the controlling  statute
former AS 09.17.080(c)  answer that question.  The answer is  No.
But per todays opinion the answer is Yes.  Invoking the principle
of several-only liability and the 1988 amendment to AS 09.17.080,
it  holds  that  the  award  must be reduced  pro  rata  (by  the
percentage  of responsibility the jury allocated to the  settling
tortfeasor),  and  not  pro tanto(by  the  amount  of  the  prior
          The  opinion  relies on principles and  policy  choices
that  were  not  reflected in the text of AS 09.17.080(c)  as  it
existed in 1993.  In my view, the text of that subsection  as  it
then  read  and  our pertinent case law preclude the  choice  the
court makes here.
          The  court correctly observes that the appellee has not
cited  subsection .080(c),4 but we must reach the  issue  anyway.
The  issue  is  inherent  because we are  being  asked  to  apply
subsection   .080(d),   and   its  application   turns   on   the
applicability of a co-existing statutory neighbor of which we are
aware.5   Also, the appellee argues that subsection .080(d)  does
not apply, argues that the settlement must be subtracted from the
award,  invokes the tort principle (avoidance of double recovery)
underlying subsection .080(c),  and cites our offset decisions in
support.  At least one of those cases applies AS 09.16.040,6  the
reduction statute to which subsection .080(c) expressly  referred
until  1997.   We  must therefore decide whether AS  09.17.080(c)
          2.    The  Applicable Statutory Scheme.  Alaska Statute
09.17.080  concerns apportionment of damages.  As of  October  6,
1993, when the accident occurred, section .080 provided:
          Apportionment  of  Damages.   (a)    In   all
          actions  involving fault  of  more  than  one
          party  to  the action, including  third-party
          defendants and persons who have been released
          under   AS   09.16.040,  the  court,   unless
          otherwise   agreed  by  all  parties,   shall
          instruct   the   jury   to   answer   special
          interrogatories  or, if  there  is  no  jury,
          shall make findings, indicating
               (1)  the amount of damages each claimant
          would   be         entitled  to  recover   if
          contributory  fault  is          disregarded;
               (2)   the percentage of the total  fault
          of  all  of  the            parties  to  each
          claim    that    is   allocated    to    each
          claimant,  defendant, third-party  defendant,
          and        person who has been released  from
          liability           under AS 09.16.040.
          (b)  In determining the percentages of fault,
          the  trier  of fact shall consider  both  the
          nature of the conduct of each party at fault,
          and the extent of the causal relation between
          the  conduct  and the damages  claimed.   The
          trier of fact may determine that two or  more
          persons  are to be treated as a single  party
          if  their conduct was a cause of the  damages
          claimed  and the separate act or omission  of
          each person cannot be distinguished.
          (c)   The court shall determine the award  of
          damages  to each claimant in accordance  with
          the findings, subject to a reduction under AS
          09.16.040,  and enter judgment  against  each
          party   liable.     The  court   also   shall
          determine  and  state in  the  judgment  each
          partys  equitable share of the obligation  to
          each   claimant   in  accordance   with   the
          respective percentages of fault.
          (d)   The  court shall enter judgment against
          each  party  liable on the basis  of  several
          liability  in  accordance  with  that  partys
          percentage of fault.
(Emphasis added.)7   The emphasized passage contains the critical
words.   They  provide that the award is subject to  a  reduction
under AS 09.16.040.
          The  version  of AS 09.16.040 to which AS  09.17.080(c)
referred provided:
          Release  or  covenant not  to  sue.   When  a
          release  or  covenant not to sue  or  not  to
          enforce  judgment is given in good  faith  to
          one or two or more persons liable in tort for
          the same injury or the same wrongful death
               (1)   it  does not discharge any of  the
          other  tortfeasors  from  liability  for  the
          injury or wrongful death unless its terms  so
          provide; but it reduces the claim against the
          others to the extent of any amount stipulated
          by  the  release or the covenant, or  in  the
          amount  of  the consideration  paid  for  it,
          whichever is the greater; and
               (2)   it  discharges the  tortfeasor  to
          whom  it  is  given  from all  liability  for
          contribution to any other tortfeasor.
(Emphasis  added.)8  The emphasized words called for a  reduction
(pro  tanto)  by  the  amount of the  settlement.   In  1997  the
legislature  amended  section  .080(c)  by  deleting  this  text:
,  subject to a reduction under AS  This is the  text
that requires the reduction in this case.
          Unless context requires greater specificity, I refer to
the  version  of  section .080 set out above as AS  09.17.080  or
former   AS   09.17.080.   Likewise,  unless   context   requires
otherwise,  my references to AS 09.17.080(c) are to  the  version
          quoted above.            The courts opinion relies on the
principles  reflected  in  subsection  .080(d).   But  subsection
.080(c)  contains  the language that controls  this  case,  which
concerns  the  topic  of reducing a plaintiffs  recovery  by  the
amount  plaintiff  received  in a prior  settlement.   Subsection
.080(c) expressly addresses that topic.  Subsection .080(d)  does
not  address it expressly or impliedly, and is irrelevant to  the
issue presented here.
          There  are  several different ways  to  carry  out  the
reduction required by subsection .080(c).  Each requires that the
amount  of the prior settlement be subtracted (thus, reduced  pro
tanto) from the jurys award at trial, and each precludes the pure
pro rata reduction approach chosen by this court.
          The  words of subsection .080(c), as it read  in  1993,
required  the superior court to engage in a three-step  reduction
process.  It was first to determine the award of damages to  each
claimant  in accordance with the findings.  This award  was  then
subject  to a reduction under AS 09.16.040.  Finally,  the  court
was to enter judgment.
            As  applied to Robles, the words the award of damages
to each claimant in accordance with the findings seem to mean the
total  damages  found  by  the  first  jury  as  reduced  by  the
percentage of fault found by the second jury.  These collectively
are  the findings that determined the damages award (whether they
were  returned  by  one  jury or two).  Subsection  .080(c)  next
required that the award of damages so calculated be subject to  a
reduction under AS 09.16.040.  Under former AS 09.16.040, amounts
paid   in   settlement  reduced  the  claim  against  the   other
tortfeasors.  After making this reduction, the court was required
by  AS  09.17.080(c) to enter judgment.  Thus, subsection .080(c)
required the court to subtract the amount of the prior settlement
from  the damages award before the court entered judgment against
the  trial  defendant.  In this case, that meant the trial  award
had to be reduced by the full amount Gannaway previously received
in  settlement, and that the superior court did not err in making
that reduction.
          Read  most rigorously, the words of subsection  .080(c)
required  that  damages be reduced first  by  the  percentage  of
responsibility  allocated  to  anyone  (including  the   settling
tortfeasor)  other  than the trial defendant,  and  then  by  the
amount  of  the  prior settlement.  Although this could  in  some
circumstances result in judgments that arguably under-compensated
plaintiffs,   this   is  the  process  the  controlling   statute
          Section  .080 can alternatively be interpreted to  call
for  a comparative reduction approach that respects the different
principles   underlying  the  two  subsections.   I  read   those
subsections   to   reflect  two  different,   but   reconcilable,
principles:  avoidance of overcompensation  or  double  recovery,
achieved  by  requiring  pro  tanto (subtractive)  reduction  for
amounts   previously  recovered  in  settlement  (per  subsection
.080(c)); and avoidance of joint liability, achieved by requiring
that  the  judgment  against  each  party  be  based  on  several
liability  (per  subsection .080(d)).  The two  subsections  thus
impose  different  limitations having  different  purposes.   And
because  they  impose limitations on the judgment,  applying  the
subsection requiring the greater limitation in a given case  does
not  conflict with the other subsection.  The advantage  of  this
approach is that it does not ignore statutory text (here, subject
to  a  reduction under AS 09.16.040) and considers the effect  of
both tort reform limitations.
          The  best  way  to reconcile the two provisions  is  to
apply  them  comparatively in cases to  which  they  both  apply.
Thus,  a  pro  rata reduction would occur if it  were  needed  to
satisfy  the several-liability-only policy of subsection .080(d).
And  a pro tanto reduction for a prior settlement would occur  if
it  were  needed to satisfy the requirement of subsection .080(c)
that makes an award of damages to each claimant . . . subject  to
a  reduction under AS 09.16.040.   To ensure that the judgment as
entered only reflected each defendants several liability and thus
satisfied  subsection  .080(d),  a  trial  court  following   the
comparative reduction approach would have compared the result  of
the  pro tanto reduction with the result of a pro rata reduction.
A pro tanto reduction required by subsection .080(c) insufficient
to   reduce  the  nonsettling  defendants  liability  below   its
proportionate share of the total damages would have the effect of
imposing  joint liability on the nonsettling defendant,  contrary
to  subsection .080(d).  To avoid that result, the final judgment
in  that  situation  would  have to be  based  on  the  pro  rata
calculation.  This calculation would also avoid overcompensation,
because  the  judgment would necessarily be no greater  than  the
amount  calculated  under subsection .080(c).   Similarly,  if  a
judgment based on pure several liability nonetheless exceeded the
amount   calculated  after  pro  tanto  reduction  for  a   prior
settlement, calculating the judgment per subsection .080(c) would
best reconcile the demands of both subsections.
          In  effect,  the two subsections can be  reconciled  by
applying  them  in  a  way that carries  out  the  policies  that
underlie them.
          A   hypothetical  example  illustrates  this  approach:
plaintiff settles with one of two joint tortfeasors for  $80,000.
A  jury  finds  plaintiff suffered damages totaling $100,000  and
finds  each  tortfeasor fifty percent responsible.  The  approach
first  discussed  above requires that the $80,000  settlement  be
subtracted  from the nonsettling tortfeasors proportionate  share
of  the  damages,  resulting in no recovery for the  plaintiff.10
Under  the  comparative  approach  next  discussed,  the  $80,000
settlement  amount is subtracted from the $100,000 total  damages
finding.   Because  the nonsettling tortfeasors  resulting  post-
offset  $20,000  liability is less than that tortfeasors  $50,000
proportionate share of the total damages, the purpose  underlying
subsection  .080(d)  protecting the tortfeasor  from  paying  for
harm  caused  by other tortfeasors  is fulfilled and  no  further
reduction is required.  The final recovery is $20,000.11
          And if the settling tortfeasor instead paid $20,000,  a
pro  tanto reduction from the total amount of damages would  only
reduce  the damages award to $80,000.  Because subsection .080(d)
prohibits  courts  from requiring tortfeasors to  pay  more  than
          their proportionate share of damages, the nonsettling tortfeasors
liability cannot exceed $50,000.12
          This  comparative approach trades the statutes  plainer
reading  first  discussed above for a process that respects  both
reductive principles reflected in the two subsections, and  leads
to  an arguably more equitable reduction formula.  It is also the
method  the  superior  court  applied in  Navistar  International
Transport Corp. v. Pleasant.13
          But either method of calculation I discuss has the same
effect on todays case: the claimant recovers nothing.  And either
method  requires  a pro tanto reduction.  The  problem  with  the
courts  opinion  is not that it adopts the incorrect  method  for
applying  the reduction required by subsection .080(c)s reference
to AS 09.16.040, but that it declines to apply subsection .080(c)
at all.
          Subsection .080(c)s continued reference to AS 09.16.040
until  1997 might seem problematic at first glance; AS 09.16.040,
after all, was repealed in 1988.14  But we are not free to ignore
the  express  words of AS 09.17.080(c) on a possible theory  they
had  no  meaning.   We dealt with a similar interpretive  problem
involving  AS 09.16.040 and AS 09.17.080 in Benner v.  Wichman.15
That case required us to interpret a reference in AS 09.17.080(a)
to  AS  09.16.040 after section .040 (and, indeed, all of Chapter
16)   had been repealed.  We there looked to the repealed statute
in  attempting  to carry out the drafters intentions  because  we
regarded  the  repealed statute as integral to understanding  the
disputed language in AS 09.17.080(a).16
          Todays  opinion advances several reasons for  declining
to apply subsection .080(c).  Its primary reason seems to be that
the subject to a reduction under AS 09.16.040 clause simply means
that  a  judgment  is  subject to reduction  under  that  statute
provided  that  the statute applies.17  And, per  the  court,  AS
09.16.040  does  not  apply because it was  repealed  before  the
settlement was reached.18
          The  court  is  looking at the wrong statute.   Section
.040  was  repealed in 1988, but the critical text of  subsection
.080(c) was not.  We cannot simply ignore the words of subsection
.080(c).  Until 1997 they provided that the award is subject to a
reduction under AS 09.16.040.
          The  courts opinion reads subsection .080(c) as  though
it  contains  qualifying words such as provided that the  statute
applies.  It does not, of course.  But if it had, it would  still
apply  here,  because  it  addresses the  topic  in  issue  here,
reduction for a prior settlement.   The courts opinion also reads
the  statute as though it merely states that an award is  subject
to  AS  09.16.040.   But it actually states  that  the  award  is
subject  to  a  reduction under AS 09.16.040.  (Emphasis  added.)
The difference is significant.19
          The   courts   opinion  advances  another   theoretical
explanation  for  the existence of the subject  to  clause  until
1997:  The  clause  usefully protected  contractual  expectations
arising  out  of  settlements reached before the 1988  initiative
became effective, until it was clear by 1997 that the clause  was
vestigial  and could be repealed.20  Given that imputed  purpose,
          the court seems to reason that there is no need for reduction for
post-1988 settlements.
          There is no basis for thinking that initiative adopters
or  the  legislature,  by retaining the subject  to  a  reduction
language   for  about  nine  years  after  voters  approved   the
initiative,  intended  to  protect  contract  expectations.    No
legislative  history supports that notion, and reality  seems  to
rebut  it.  The contracting parties in a tort settlement are  the
tort  plaintiff and the settling tortfeasor.  The latter  has  no
interest in how section .080 is applied and the former derives no
protectible    contractual   benefit   as   against   nonsettling
tortfeasors  (who are not party to the contract).    No  relevant
expectation  benefitting the plaintiff arises from  the  contract
itself.  (Even if a statute might give rise to expectations,  the
continued  existence of the subject to a reduction  clause  would
have rendered unreasonable any expectation that settlements would
no  longer reduce trial awards in Alaska after 1988.)  Settlement
incidentally benefitted the nonsettling tortfeasor, who had   the
statutory  right to a reduction for the amount of the settlement.
But that right derived from the fact of payment, not the contract
itself.  So it is hard to imagine that the reduction language was
retained  for  the  limited  purpose  of  protecting  contractual
rights.   It is therefore equally implausible to think  that  the
date of settlement is relevant to the statutory analysis required
here.   The  relevant date is the date when the cause  of  action
accrued.   By  accruing  before 1997, this  cause  of  action  is
governed by the subject to a reduction clause.
          The  courts  opinion, in alternatively suggesting  that
subsection  .080(c)s reference to the repealed AS  09.16.040  may
have  been  a  drafting  mistake,21  may  assume  that  the  1988
initiative  was  intended  to repeal the  reduction  language  in
subsection .080(c).  There was no such express repeal  and  there
was  no  expression of any such intention.22  Or the opinion  may
assume  a degree of inconsistency between subsection .080(c)  and
subsection  .080(d)  that can be resolved only  by  holding  that
there  was  an  implied  repeal.  Any such  assumption  would  be
          Because  we  can reconcile the text and the  effect  of
subsections .080(c) and (d), we cannot assume the implied  repeal
of  the  pro  tanto  reduction language  in  subsection  .080(c).
Reconciliation turns on recognition that the two subsections have
different  purposes and that they focus on different  aspects  of
tort damages.  Subsection .080(d), read literally, focuses on the
parties  who  are  being held liable at trial.   It  does  so  by
addressing  judgment against each party liable  and  by  adopting
several-only   liability,   fundamentally   limiting   defendants
liability.   In  comparison, the first two clauses of  subsection
.080(c) focus on what claimants may recover.  Thus, those clauses
address  the  award to each claimant as calculated in  accordance
with  the findings, and therefore take into account any fault  of
the  plaintiff as well as the fault of the tortfeasors.  The  two
subsections  can be reconciled by reading subsection  .080(c)  to
limit  what  a  plaintiff  can recover  (because  it  requires  a
reduction  of  the  plaintiffs award per  AS  09.16.040)  and  by
          reading subsection .080(d) to limit what a defendant can be made
to  pay  (because  entering judgment  on  the  basis  of  several
liability  under  that subsection does not necessarily  foreclose
any  other limitation, such as a reduction for amounts previously
received).  The two subsections can be read together to limit the
amount a plaintiff can recover from the defendants at trial, both
by  limiting  a plaintiffs total compensation and by  limiting  a
defendants individual exposure.  The two subsections can be  most
clearly   reconciled   by  applying  the  comparative   reduction
methodology discussed above on pages 7-10.
          If  we  ignore  this  method  of  reconciling  the  two
subsections,  they can be read to conflict, on a theory  the  pro
tanto reduction subsection .080(c) required was inconsistent with
the pro rata reduction subsection .080(d) seemed to require.  But
this  conflict  is  only implied, and it is not  obvious  how  it
should  be  resolved.   To  resolve  it  as  the  courts  opinion
implicitly seems to do (by declining to apply subsection .080(c))
reads  words  out  of the statute, and renders  them  not  merely
innocuously  superfluous,  but actively  irreconcilable.23   This
requires  us  to  ignore specific statutory text dealing  with  a
specific  topic  (subtractive reduction  for  amounts  previously
received) in favor of general language that unspecifically  calls
for  entry  of judgment on the basis of several liability.24   It
also  raises  questions  about the effect  of  the  1997  express
          It   is  theoretically  possible  to  surmise  that  an
intention  to  adopt several-only liability cannot be  reconciled
with the subtractive reduction subsection .080(c) requires.   But
the only (or main) perceived evil being addressed in 1988 was any
form of joint liability, i.e., any principle by which a defendant
at trial could be required to pay more than its pro rata share of
the  damages.   Avoiding  joint liability  does  not  necessarily
conflict  with a reduction for prior settlements,  nor  does  the
methodology conflict if the comparative approach is applied.
          I  am  not  prepared  to hold that the  1988  amendment
somehow  repealed the critical words of subsection .080(c).   The
courts  opinion  may  reason  that what  it  calls  pure  several
liability25  somehow  nullifies  subsection  .080(c)s   reduction
language.   To  the  extent the opinions analysis  turns  on  its
characterization  of the amendments purpose,  I  am  unconvinced.
The  1988  amendment had the purpose and effect of repealing  any
remaining possibility that defendants would be exposed  to  joint
liability.26   Ending defendants exposure to joint  liability  is
not   inherently  and  thematically  at  odds  with  reducing   a
plaintiffs award by the amount of a prior settlement or recovery.
Thinking that pure several liability had a purpose of benefitting
injured  plaintiffs ignores the history of tort reform in Alaska.
Several-only  liability was adopted in 1988 to  prevent  modified
joint  liability;27  plaintiffs loss of an  opportunity  to  hold
defendants   jointly  liable  was  regarded  as  detrimental   to
plaintiffs  and  beneficial  to  defendants.28   Throughout   its
history,  Alaska  tort reform has focused on limiting  defendants
liability   and  reducing  the  cost  of  liability  insurance.29
Supporters  of tort reform memorialized no concern about  whether
          tort defendants at trial might pay less than their share of
damages   or  that  trial  awards  might  under-compensate   tort
          In any event, several-only liability is not necessarily
at  odds  with  a policy choice of requiring reductions  per  the
language of subsection .080(c).  The concept of several liability
does  not  preclude a reduction for prior settlements.  Likewise,
pure  several  liability was adopted because even modified  joint
liability  was  considered  undesirable.31   Joint  and   several
liability (and, later, several and modified joint liability) were
features  of  Alaska  tort  law  for  many  years.32   Defendants
exposure   to   joint   liability  provoked   several   statutory
amendments.  Consequently, as of 1988 (and thus as of October  6,
1993)  a  drafter  could  have  both  rationally  intended   that
subsection  .080(d)  would  simply abolish  joint  liability  and
logically  reasoned  that several liability would  determine  the
maximum  amount  (not the final amount) of a judgment  against  a
defendant.    A   drafter  likewise  could  have  reasoned   that
subsection  .080(c), by requiring the specified reduction  before
entry   of   judgment,  was  not  inconsistent  with  foreclosing
judgments  based on joint liability.  The history of tort  reform
in  Alaska reflects a series of partial measures addressing a few
aspects  of  tort law at a time.  The 1988 interest in addressing
one  perceived  problem   joint  liability   does  not  prove  an
interest in addressing all other possible problems, as well.
          Moreover,  reading  subsection  .080(c)  to  require  a
subtraction  of  the  amount received notwithstanding  subsection
.080(d)  is consistent with our decisions interpreting  analogous
statutes.   The  superior court here applied what we  said  about
reduction  in Universal Motors, Inc. v. Neary (which arose  under
the  same  statutory regime).33  As the next part of  my  dissent
discusses,  subtractive reduction for prior tort settlements  was
long  a feature of Alaska law.  A drafter aware of our decisional
law  could  have  rationally intended  to  retain  the  reduction
feature expressed in former subsection .080(c).
          Indeed, as of 1993 (and until 1997), AS 09.17.080  also
contained  two  other references to AS 09.16.040  notwithstanding
that  sections repeal in 1988.34  Those other two references  and
our  treatment of one of them in 1994 argue against  any  implied
          In  short,  we are not free to disregard the  statutory
reduction language.
          3.     Our   Precedent.   Despite  periodic   statutory
changes, our decisions discussing the applicable statutory scheme
and  its  predecessors  consistently  recognized  that  an  award
against  a negligent tortfeasor had to be reduced by amounts  the
plaintiff  previously received as damages from other tortfeasors.
This  is  so  whether  the prior recovery was  by  settlement  or
judicial award.
          Navistar  International  Transport  Corp.  v.  Pleasant
illustrated  how  the  statutory reduction  was  to  work.36   It
confirms  that in Alaska, at least before 1997, a tort award  had
to  be  reduced  at  least by the amount of a  prior  settlement.
Pleasant  suffered personal injury in July 1986 and sued  several
          alleged tortfeasors.37  After the jury returned a verdict for the
plaintiff against some of the tortfeasors but before judgment was
entered, the plaintiff settled with one of the defendants  for  a
large  amount.38  The settlement agreement allocated some of  the
settlement  to punitive damages and the remainder to compensatory
damages.39   To  calculate the judgment against  the  nonsettling
tortfeasor, the superior court applied the comparative  reduction
approach I describe in Part 1.  Thus, it compared the result of a
pure pro tanto reduction per AS 09.17.080(c) with the result of a
proportionate  share  calculation under the  modified  joint  and
several  liability regime per AS 09.17.080(d)  as  it  read  when
Pleasant was injured.40  Because it found that the modified joint
and  several  liability  result  was  less  than  the  pro  tanto
result,41  it entered judgment based on the former result.42   We
reversed  because the superior court, in reducing pro tanto,  did
not  subtract  the  part of the settlement  amount  allocated  to
punitive damages; it therefore incorrectly concluded that the pro
tanto reduction result was larger than the modified proportionate
share result and therefore incorrectly entered judgment based  on
the  latter  method.43  We confirmed that it was  appropriate  to
reduce  pro  tanto;  indeed, we reversed because  the  pro  tanto
reduction  did  not  subtract  the  full  amount  of  the   prior
settlement.44   We raised no question about the  superior  courts
use of the comparative reduction approach, and tacitly seemed  to
approve  it.   Nothing about the amendment to subsection  .080(d)
effective in 1989 renders the comparative reduction approach less
appropriate  or  justifies  complete failure  to  carry  out  the
subsection .080(c) reduction approved in Navistar.
           In  Norcon, Inc. v. Kotowski,45 Kotowski, claiming she
had  suffered  sexual  harassment in June and  July,  1989,  sued
Norcon  and  Exxon for, among other things, compensatory  damages
for  emotional  distress and lost earnings.46  She  settled  with
Exxon  before  trial for $20,000.47  The trial jury then  awarded
her compensatory damages of about $10,000 against Norcon,48 which
argued  on appeal that the amount of the Exxon settlement had  to
be  subtracted from the jury award to avoid a double  recovery.49
We agreed, citing Navistar.50
          In  Neary,  we  considered whether the one-action  rule
barred   Nearys  second  personal  injury  lawsuit  for  a   1994
accident.51   We  held that the statutory regime then  in  effect
(the  same  regime  that applies here) did not mandate  a  single
action  for each injury or accident.52  We also reasoned that  it
was   not  necessary  to  adopt  a  one-action  rule  to  prevent
inconsistent  results or double recoveries.53   We  so  concluded
because  we  recognized that the damages award at a second  trial
had  to be offset by what a plaintiff had already received  at  a
first trial.54  In support, we cited Norcon and Navistar.55
          In Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
we  held  that  consideration paid in  AS  09.16.040(1)  included
amounts  paid per a loan receipt even if plaintiff had  to  repay
the  amount  so  received.56  [A]nything received  by  way  of  a
covenant  not  to sue operates as a payment pro  tanto  upon  any
judgment obtained against the others. 57  We recognized that  the
reduction was pro tanto.58
          In  Chenega  Corp. v. Exxon Corp., we again  recognized
that  non-collateral source payments received by a plaintiff must
be deducted from a jury award against a tortfeasor.59
          The  courts opinion today distinguishes these  opinions
on  the  theory  they  turn on statutes that  predated  the  pure
several  liability regime enacted by initiative in  1988.60   But
the   1988  initiative  did  not  repeal  the  language   in   AS
09.17.080(c)  that  required a reduction in  accordance  with  AS
          Our  decisions  therefore confirm that  the  applicable
statutes require a pro tanto reduction, at least for purposes  of
applying  the  comparative reduction approach that  the  superior
court  used and that we tacitly approved in Navistar.61   Because
the pro tanto statutory reduction requirement recognized in those
cases  cannot be reconciled with the pro rata reduction  approach
adopted  here,  stare decisis forecloses the  result  the  courts
opinion would reach unless the court addresses and overrules this
          The  courts  opinion  does not  discuss  or  apply  the
analytical  standard that we use in deciding whether to  overrule
our  past  precedent.  But it is hard to see  how  that  standard
could  be  satisfied here.62  There is no basis for thinking  our
past decisions were wrong when we issued them; they appropriately
relied  on  AS  09.17.080(c) as it read until  1997.  The  policy
choice  between pro tanto and pro rata reduction is not  so  one-
sided that we can now say that our decisions applying a pro tanto
approach were wrong when decided.  After we issued those opinions
no  conditions  changed relative to when  this  cause  of  action
accrued in 1993.  It likewise cannot be said that more good  than
harm  would  result  from  departing  from  our  precedent:   The
statutory  issue  now before us seems unlikely  to  arise  again,
given  that  the 1997 amendment has now been in effect  for  nine
years.   It  seems unlikely the issue will recur.   There  is  no
pressing  reason  to  reinterpret statutory  text  that  has  not
existed  since 1997.  The harshness the courts opinion  perceives
in  applying  a  pro  tanto reduction cannot  justify  overruling
precedent  that  originates  in the policy  choices  the  statute
reflects.   But to the extent pro tanto reduction may lead  to  a
harsh  result,  harshness is avoided by reading  the  statute  to
provide for the comparative reduction approach discussed in  Part
2, above, and applied in Navistar.   The avoidable possibility of
a harsh result cannot justify overruling our prior decisions.
          4.    Tort Principles of Compensatory Damages.  Several
value  judgments  seem  to  underlie the  courts  analysis.   The
opinion  seems  to  reason that a central  purpose  of  the  1988
initiative  was  to ensure that tortfeasors are held  accountable
for the harm they cause.63  It perceives signs of this policy  in
expressions of an intention to make a tortfeasor pay for the harm
he  or  she  has  caused.64  It concludes that the potential  for
overcompensation is justified by the reciprocal risk of  settling
with  a defendant for less than that defendants comparative share
of  the harm.65  Its conclusion therefore turns on the weight  it
gives  the  policies it identifies.            I  discuss  public
policy only reluctantly here.  In my view the express words of AS
          09.17.080(c) before amendment in 1997 both specify what courts
must  do  in  this  case and prevent courts from invoking  public
policy  to make a policy choice different than that reflected  in
the  statutes  words.66  I discuss public  policy  here  only  to
demonstrate that for claims that arose in 1993, the reduction the
statute  required  until 1997 was consistent  with  a  valid  and
important principle of tort law that had long been recognized and
applied  in  Alaska, and that was not foreclosed  by  any  public
policy identified by the court today.
          The  policy choice underlying the courts analysis today
confuses  the  pertinent policies and misconceives  tort  law  in
context of claims by victims of negligence, at least as to claims
accruing  before 1997.  Thus, it is a controlling and fundamental
principle  of tort law, notwithstanding its Dickensian flavor  of
unreality,  that negligently inflicted personal injuries  can  be
fully  compensated  with money.67  Money can  make  the  personal
injury  plaintiff legally whole, whether or not  medical  science
can.   This  means that the harm to the plaintiff is measured  in
dollars.   And  it  means  that when the plaintiff  has  received
dollars  equal  to the monetary value of the harm  suffered,  the
plaintiff is no longer suffering harm.68  He is cured.  And if he
receives dollars equal to half the monetary value of his harm, he
is half-cured.  This means that his harm, in the eyes of the law,
is  only  half  what it was before he was paid.   Thus,  speaking
hypothetically, if the plaintiffs harm is valued at $400,000  and
he  receives  $100,000 from one tortfeasor in  a  settlement,  by
definition  only $300,000 of harm remains uncompensated.   Things
are  more  complicated in dealing with a settlement  and  then  a
subsequent trial at which a jury finds the amount of damages, but
the  complication is conceptually unimportant.  If the jury finds
that  the plaintiff suffered damages worth $400,000, his  receipt
of  the  prior $100,000 settlement proceeds means that the  post-
settlement value of plaintiffs harm is only $300,000.
          This  means  that  applying a  policy  of  requiring  a
tortfeasor  to pay for the harm he has caused necessarily  raised
this question (before 1997): what harm has the plaintiff suffered
after  he  has been made partly whole?  In the above hypothetical
the  uncompensated harm is $300,000, not $400,000.  Public policy
demands that the trial defendant pay for the harm attributable to
him;69  it does not demand that he pay for harm that has  already
been  remedied, and no legislative history or tort reform history
applicable  to this case supports a conclusion to the contrary.70
Policy does not require him to pay for harm that is already cured
by  partial  settlement  with another  tortfeasor.71   After  the
settlement,  the  second tortfeasor is no longer responsible  for
the  first $100,000 worth of harm; as to that harm, plaintiff has
already  been  fully compensated.72  Because dollars  define  the
harm, it is the uncompensated harm, and not the entire harm,  for
which  the  wrongdoer must pay.  That is as  far  as  the  public
policy  of making the tortfeasor pay  goes.73
          The  second problem is that the drafts perception of  a
broader  public  policy is almost certainly incorrect  given  the
improbability  that  any tort reforms from 1986  onward  had  any
purpose of requiring tortfeasors to pay plaintiffs more than  the
          amount of their uncompensated damages.
          Public policy in Alaska has long required a setoff  (or
reduction)  for  prior settlements.  In Luth v. Rogers  &  Babler
Construction  Co., we stated that common law principles  prohibit
double recovery:
          A  cardinal  common law principle establishes
          that  in  the absence of punitive  damages  a
          plaintiff can recover no more than  the  loss
          actually  suffered.  The doctrine prohibiting
          double  recovery  supports the  rule  that  a
          payment  received  by  the  plaintiff  for  a
          covenant   not  to  sue  someone  potentially
          liable  in  tort  must be deducted  from  the
          damages  recoverable from persons whose  tort
          liabilities   arise   out   of    the    same

          Alaska Statute 09.16.040, adopted after Luths accident,
embodied  the  same rule.  Nothing in the history of  chapter  17
suggests  that  its proponents intended to make it  possible  for
personal injury plaintiffs to recover more money than it took  to
make  them  whole.  Instead, it would appear that the legislature
intended  to reduce the possibility of overcompensation when,  in
1986,  it  broadened the categories of collateral  benefits  that
require  that  a judgment be reduced.75  Chapter  17  reflects  a
policy  choice  of  preventing plaintiffs  from  recovering  from
tortfeasors any unsubrogated health benefits the plaintiffs  have
received from the plaintiffs own insurance companies for the same
injuries.76   Nothing that happened in connection with  the  1988
initiative suggests a more plaintiff-oriented policy.
            In  short,  the  subtractive  reduction  that  former
subsection  .080(c)  requires in this  case  is  consistent  with
public policy.  The broad public policies discussed in the courts
opinion do not permit us to disregard the words of the statute.
          5.    Conclusion.  I therefore conclude that we  should
affirm the reduction made by the superior court.

     1    29 P.3d 838, 840-41 (Alaska 2001).

     2     But as required by the settlement agreement, Petrolane
was  ordered  to  pay ten percent of Gannaways  judgment  against
Robles directly.

     3    Robles, 29 P.3d at 844.

     4    Id. at 844 n.21.

     5    Id. at 846 n.30.

     6    984 P.2d 515 (Alaska 1999).

     7    Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).

     8     Sisters  of  Providence  in Washington  v.  A.A.  Pain
Clinic, Inc., 81 P.3d 989, 997 n.4 (Alaska 2003).

     9    Robles argues that AS 09.17.080 was amended in 1997 and
that  the  revised  statute  only applies  to  causes  of  action
accruing  on or after August 7, 1997, well after accrual  of  the
cause of action in this case.  Thus, he argues this provision  is
inapplicable.   While much of AS 09.17.080 was revised  in  1997,
the  language of subsection .080(d) was enacted by initiative  in
1988,  came into force on March 5, 1989, and was not affected  by
the 1997 amendment.  Consequently, subsection .080(d) was the law
in  1993,  when  the events underlying this case  occurred.   See
Herscher  v. State, Dept of Commerce, 568 P.2d 996, 1001  (Alaska
1977) (quoting 1A Sutherland: Statutes and Statutory Construction
22.23, at 191 (4th ed. 1972)):

          Provisions  of  the original act  or  section
          which  are  repeated  in  the  body  of   the
          amendment,  either in the same or  equivalent
          words,  are considered a continuation of  the
          original  law. . . .  The provisions  of  the
          original  act  or section re-enacted  by  the
          amendment are held to have been the law since
          they  were  first enacted, and the provisions
          introduced by the amendment are considered to
          have  been  enacted  at  the  same  time  the
          amendment took effect.
     10    Because the second jury found that Petrolane was 43.75%
responsible  for  the accident, Petrolane owed Robles  43.75%  of
Robless    already-determined   damages   of   $871,216.19,    or
$381,157.08, plus pre-judgment interest, costs, and fees,  if  no
offset applied.

     11     Kodiak  Island  Borough v. Roe, 63  P.3d  1009,  1013
(Alaska 2003) (internal citations omitted).

     12    Id.; Alaska Gen. Alarm Inc. v. Grinnell, 1 P.3d 98, 100
(Alaska 2000).  The changes effected by the 1988 initiative  went
into effect in 1989.

     13     See  1988  Election  Pamphlet for  Initiative  87TOR2
(statement in support).

     14    Id.

     15    Id.

     16    828 P.2d 745 (Alaska 1992).

     17    887 P.2d 951 (Alaska 1994).

     18    Bohna, 828 P.2d at 758 (citing AS 09.16.040); Navistar,
887  P.2d at 958 n.9 (citing former AS 09.17.090 and noting  this
statute  was  identical  to  AS  09.16.040(1)).   The  former  AS
09.17.090 stated in relevant part:

          (1)  it  does not discharge any of the  other
          tortfeasors from liability for the injury  or
          wrongful  death unless its terms so  provide;
          but  it  reduces the claim against the others
          to the extent of any amount stipulated by the
          release or the covenant, or in the amount  of
          the  consideration paid for it, whichever  is
          the greater.
          Robles  also  cites to Luth v. Rogers &  Babler  Const.
Co., 507 P.2d 761, 766 (Alaska 1973) (internal citations omitted)
where our analysis depended upon the now-abrogated common law:

          A  cardinal  common law principle establishes
          that  in  the absence of punitive  damages  a
          plaintiff can recover no more than  the  loss
          actually  suffered.  The doctrine prohibiting
          double  recovery  supports the  rule  that  a
          payment  received  by  the  plaintiff  for  a
          covenant   not  to  sue  someone  potentially
          liable  in  tort  must be deducted  from  the
          damages  recoverable from persons whose  tort
          liabilities   arise   out   of    the    same
          circumstances.   This  rule   is   applicable
          regardless of whether the covenantee, under a
          covenant not to sue, is a party to the suit.
     19     Krieser v. Hobbs, 166 F.3d 736, 740 (5th Cir.  1999).
See  also  Waite  v. Morisette, 843 P.2d 1121, 1123  (Wash.  App.
1993)  (pro  tanto  rule logical so long  as  joint  and  several
liability  remained  in  effect, because a nonsettling  defendant
could be liable for 100 percent of the damages regardless of  the
degree  to  which  that  party was at  fault.   Thus  with  joint
liability,  fairness dictated that credit be  given  for  amounts
paid to the claimant by settling defendants.).

     20     Duncan  v. Cessna Aircraft Co., 665 S.W.2d  414,  431
(Tex.  1984).   See  also  Krieser,  166  F.3d  at  743  ([W]here
liability  is  not joint-and-several, and each defendant  instead
bears  liability for damages only proportionate to his own fault,
there  is  no assessment of liability for damages common  to  the
settling   and   non-settling   defendants.    Accordingly,   the
settlement  has  an entirely separate basis from the  apportioned
damages, and the one-recovery rule does not apply.).

     21    Robles also cites to Norcon, Inc. v. Kotowski, 971 P.2d
158  (Alaska  1999), where we offset the plaintiffs  compensatory
damages  award against Norcon by the value of a prior  settlement
with another defendant.  Id. at 171.  Norcon was governed by  the
1988  initiative,  but in applying an offset, we  cited  only  to
Navistar  Intl  Transp. Co. v. Pleasant,  887  P.2d  951,  957-58
(Alaska  1994),  which  was governed by the  pre-1989  joint  and
several  liability regime.  Because full offsets are  limited  to
joint and several liability systems, and because in Norcon we did
not  examine or discuss which type of offset is appropriate under
several  liability,  we decline to apply Norcon  to  the  present
case.   Moreover, Norcon is distinguishable in that it   required
full  offset in order to avoid double recovery by the  plaintiff,
whereas  in  the  present  case full offset  will  only  allow  a
wrongdoing defendant to escape accountability.
          In  Chenega Corp. v. Exxon Corp., 991 P.2d 769  (Alaska
1999), we approved a full offset of a $6,000,000 judgment against
a $23,000,000 payment plaintiffs received from the federal Trans-
Alaska  Pipeline Liability Fund.  Id. at 790-92.  Chenega  is  at
best  inapposite and at worst actually undercuts Robless argument
for   two  reasons.   First,  in  Chenega  we  did  not  consider
apportionment  of  damages  under AS 09.17.080(d)  and  expressly
declined  to  consider  the propriety of a  full  offset  of  the
judgment  against  Exxon by the settlement  payment  tendered  by
Exxons  co-defendant, the Alyeska Pipeline Service Company.   Id.
at  790-92 and n.96.  Second, our primary concern in Chenega  was
double  payment,  not  double recovery; an offset  was  justified
because Exxon would have had to pay the Fund for its payments  to
the  same  plaintiffs for the same damages: This . . . is  not  a
situation in which denying a set off is necessary to prevent  the
wrongdoer  from escaping accountability.  Id. at  792.   In  this
case,  however, Robles is not exposed to double payment.  Indeed,
allowing   a   full  offset  would  allow  Robles   to   escap[e]
accountability completely. Id.

     22     McDermott  v. AmCylde, 511 U.S. 202,  208-217  (1994)
(discussing  various approaches and adopting proportionate  share

     23     See  Krieser, 166 F.3d at 743 (noting that courts  in
sixteen  states have deemed full offsets to be incompatible  with
several  liability regimes); Wells v. Tallahassee Meml Regl  Med.
Ctr.,   Inc.,  659  So.  2d  249,  252  (Fla.  1995)  (describing
proportionate  share  rule  as  clearly  the  majority  rule  and
adopting same); Thomas v. Soldberg, 442 N.W.2d 73, 77 (Iowa 1989)
(applying  proportionate offset rule and listing  cases  reaching
same conclusion).

     24      Restatement  (Third)  of  Torts:  Apportionment   of
Liability   16 (1999) (recommending proportionate share  approach
under  joint  and  several  liability).  See  also  id.  at   B19
(recommending   proportionate  share   approach   under   several

     25     Id.  at   16  cmt. e (1999).  Although  16  generally
discusses joint and several liability, the Restatement adopts the
same  rule  regarding the liability of nonsettling defendants  in
both  the  joint and several liability and pure several liability
contexts.   See  id.  at   16,  cmt. h.  ([T]he  liability  of  a
nonsettling  defendant  remains the  same  whether  a  credit  is
provided  pursuant to this Section in the case  of  a  joint  and
severally  liable defendant or . . . in the case of  a  severally
liable  defendant.).  See also id. at  B19 cmt. k (As when  joint
liability  and  several  liability is  the  governing  rule,  the
plaintiff  may recover more than the total damages determined  by
the factfinder as a result of making a beneficial settlement with
some tortfeasors.).

     26    See id. at  16 Reporters Note cmt. e. (Providing such a
windfall  to  the nonsettling defendant also has the  detrimental
effect  of  discouraging settlements, both by the  plaintiff  who
will  not  obtain the benefit of a favorable settlement with  the
first  settling tortfeasor and by defendants who were not initial
settling tortfeasors, because they can obtain the benefits  of  a
less  favorable settlement by the plaintiff with earlier settling
tortfeasors  only  if  they  refuse to  settle  and  continue  to
trial.).   See  also  Roland v. Bernstein, 828  P.2d  1237,  1239
(Ariz.  App.  1991) (noting full offsets discourage settlements);
Kussman  v.  City  & County of Denver, 706 P.2d 776,  782  (Colo.
1985) (same).

     27    Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d
1191,  1193  (Alaska  1989) (We recognize  the  important  public
policy  served  by  those measures which encourage  settlement.);
Interior  Credit  Bureau,  Inc. v. Bussing,  559  P.2d  104,  106
(Alaska  1977) (Stipulations and settlements are favored  in  law
because  they  simplify,  shorten and settle  litigation  without
taking up valuable court resources.).

     28    See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 431
(Tex. 1984) (citations omitted) ([S]ettlement dollars are not the
same  as  damages.   Settlement dollars represent  a  contractual
estimate  of the value of the settling tortfeasors liability  and
may  be  more  or  less  than  the  proportionate  share  of  the
plaintiffs  damages.  The settlement includes not  only  damages,
but  also  the value of avoiding the risk, expense,  and  adverse
public  exposure  that accompany going to  trial.   There  is  no
conceptual inconsistency in allowing a plaintiff to recover  more
from a settlement or partial settlement than he could receive  as

     29    984 P.2d 515 (Alaska 1999).

     30    Id. at 516.

     31    Id. at 518.

     32    Id.

     33    Id.

     34    Id.

     35    Id.

     36    Id. at 518 n.14.

     37      Id.   (quoting   Restatement   (Third)   of   Torts:
Apportionment of Liability.  33 cmt. f (Proposed Final Draft Mar.
22, 1999)).

     38    McLaughlin v. Lougee, 137 P.3d 267, 279 (Alaska 2006).

     39    874 P.2d 949, 957 n.18 (Alaska 1994).

     40     Id.  Contrary to the dissents assertion,  nothing  in
Benner  required  this court to interpret  the  reference  in  AS
09.17.080(a) to AS 09.16.040.

     41     Brian Garner seems to support this reading; he  views
the  phrase subject to as essentially redundant when  used  in  a
statute to refer to other provisions of law:

          subject to the provisions of this Act.   This
          redundancy  appears frequently in  common-law
          statute-drafting.  A variation is subject  to
          any contrary provision of this Act.  As often
          as not, it signals poorly organized drafting;
          certainly  it makes the interpreters  job  no

Bryan  A.  Garner,  A  Dictionary of Modern Legal  Usage  at  840
(Oxford University Press 1995).

     42    821 P.2d 714 (Alaska 1991).

     43    Id. at 717.

     44     Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 844
n.21, 846 (Alaska 2001).

     45    See the discussion supra at pp. 20-22.

     46    Robles, 29 P.3d at 846.

     47    K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702,
718 (Alaska 2003) (citations omitted).

     48    City of Kodiak v. Samaniego, 83 P.3d 1077, 1082 (Alaska
2004) (citation omitted).

     49     Jackson v. American Equity Ins. Co., 90 P.3d 136, 141
(Alaska 2004) (citing Reich v. Cominco Alaska, Inc., 56 P.3d  18,
25 (Alaska 2002)).

     50    General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214
(Alaska 1998) (citing Vincent By Staton v. Fairbanks Meml  Hosp.,
862 P.2d 847, 851 (Alaska 1993)).

     51     Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 841
(Alaska 2001).

     52    Id. at 846.

     53     Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (Alaska
1977) (internal citations omitted).

     54    State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d  851,  859 (Alaska 2003) (internal quotations and  citations

     55     Conner  v.  Stelly, 830 So. 2d 1102, 1110  (La.  App.
2002).  See also Watts v. Seward School Bd., 421 P.2d 586 (Alaska
1966)  (Rabinowitz,  J.,  dissenting in part  and  concurring  in
part),  vacated on other grounds, 391 U.S. 592 (1968) (explaining
that law of case promotes judicial efficiency by narrowing issues
in successive stages of litigation).

     56    Robles, 29 P.3d at 842-44.

     57    Id. at 846.

     58     Petrolane also cites AS 09.17.080(b), which  provides
that [i]n determining the percentages of fault, the trier of fact
shall  consider both the nature of the conduct of each  party  at
fault,  and the extent of the casual relation between the conduct
and  the  damages claimed.  Petrolane argues that  the  statutory
language  supports its argument that the second jury was required
to  make new determinations regarding the parties negligence  and
related causation.  However, this statute only requires that such
determinations be made by a fact-finder.  Where, as here, a prior
fact-finder made determinations of negligence that are unaffected
on  remand,  these determinations should not be  revisited.   Cf.
State  v. Kaatz, 572 P.2d 775, 785 n.11 (Alaska 1977) (If  a  new
trial  on the issue of apportionment is granted, the court should
instruct the jurors that (1) they must assign some percentage  of
the  negligence to each party, (2) the total damages are  in  the
sum found by the previous trier of fact (unless the same jury  is
also retrying the damages issue), and (3) their sole function  is
to apportion the negligence between the parties.).

     59    48 P.3d 1170 (Alaska 2002).

     60    Id. at 1173.

     61    Id. at 1175-76.

     62    Id. at 1176.

     63    Id.

     64      Petrolanes  argument  also  contradicts  the   Neary
hypothetical discussed above.  See supra Part IV.A.1, pp.  14-15.
In  Neary  we noted that in a second trial by the same  plaintiff
against a different defendant, there should be a determination of
the  comparative  fault  of  all parties,  but  that  the  second
defendant  would  be  entitled to a ruling  based  on  collateral
estoppel that P and D1 are negligent, although the percentage  of
their  total fault . . . cannot be specified, for that issue  has
not  been  litigated.  Universal Motors, Inc. v. Neary, 984  P.2d
515, 518 (Alaska 1999).

1    Slip Op. at 10, 11-12, 16.

     2    Slip Op. at 7.

     3     In  Robless  case, two different juries  returned  the
corresponding  findings;  the  first  determined  the  amount  of
damages  and  the  second allocated fault.  This circumstance  is
irrelevant to the issue presented.

4    Slip Op. at 16.

     5     More accurately, it appears that the appellant asks us
to  apply  the  1988 initiative that amended AS 09.17.080(d)  and
adopted pure several liability.

     6     Bohna  v. Hughes, Thorsness, Gantz, Powell &  Brundin,
828 P.2d 745, 758 (Alaska 1992).

7     As  first  enacted  in  1986, subsection  .080(c)  referred
to  AS  09.17.090.   Ch.  139,   1, SLA  1986.   The  legislature
substituted AS 09.16.040 in 1987.  Ch. 14,  16, SLA 1987.

     8      The 1988 initiative repealed chapter 16, including AS
09.16.040,  but  did not delete the three references  to  section
.040 in AS 09.17.080(a) and (c).  1987 Initiative Proposal No. 2,
adopted  in  1988.   The initiatives amendments became  effective
March 5, 1989.

     9     Ch.  26,  13, SLA 1997.  The legislature also  amended
subsections .080(a) and (b), but not subsection .080(d).  Ch. 26,
1112,  SLA  1997.  The 1997 changes applied to causes  of  action
accruing on or after August 7, 1997.  Ch. 26,  55, SLA 1997.  The
text  of subsection .080(c) deleted in 1997 therefore applies  to
this case because the cause of action accrued in 1993.

10    The  math  is  as follows: ($100,000 x  0.50)    $80,000  =
$30,000.  Because no negative award is possible here, there is no

     11    The  math  for the comparative approach requires  dual
calculations.  The first calculates the maximum amount  that  the
nonsettling  tortfeasor should be required  to  pay  as  follows:
$100,000  x  .50  = $50,000.  The second calculates  the  maximum
amount that the plaintiff may receive without receiving a partial
double  recovery  as  follows:  $100,000  -  $80,000  =  $20,000.
Taking  the lower of the dual calculations will ensure that  both
policies  the avoidance of joint liability and the avoidance of a
double recovery  are satisfied.

12    The  dual  calculations  here would  be  as  follows.   The
first  would be: $100,000 x .50 = $50,000.  The second would  be:
$100,000 - $20,000 = $80,000.  Again, selecting the lower of  the
two results will ensure that the nonsettling tortfeasor pays only
for  the  damages  he  has caused while also  ensuring  that  the
plaintiff does not receive a double recovery.

     13    Navistar Intl Transp. Corp. v. Pleasant, 887 P.2d 951,
956 (Alaska 1994).

     14   The voters approved the 1987 Initiative Proposal No.  2
repealing chapter 16 in 1988.

     15   Benner v. Wichman, 874 P.2d 949 (Alaska 1994).

     16     Id.   at  957  n.18  (interpreting  AS  09.17.080(a)s
reference to AS 09.16.040).

     17   Slip Op. at 18.

     18   Id.

     19   The clause is not a mere redundancy, unlike the generic
phrase (subject to the provisions of this Act) condemned by Brian
Garner.   Bryan A. Garner, A Dictionary of Modern Legal Usage  at
840 (Oxford University Press 1995).  The clause here is specific:
it specifies the topic and the required action (reduction) and it
also provides a specific statutory cross-reference.

     20   Slip Op. at 19.

21   Slip Op. at 19.

     22   1987 Initiative Proposal No. 2.  The initiative amended
AS  09.17.080(d),  repealed  AS 09.16,  and  made  these  changes
applicable  to all causes of action accruing after the  effective
date  of the act.  Id.  The initiative did not amend, or mention,
AS 09.17.080(c).

23    See  In  re  Adoption  of  Missy  M.,  133  P.3d  645,  650
(Alaska  2006) (holding that effect should be given to all  words
of   statute  so  that  none  are  rendered  superfluous);  Mech.
Contractors  of  Alaska, Inc. v. State, Dept of Pub.  Safety,  91
P.3d  240,  248  (Alaska 2004) (presuming  that  the  legislature
intended every word, sentence, or provision of a statute to  have
some  purpose, force, and effect, and that no words or provisions
are  superfluous  (quoting Kodiak Island Borough v. Exxon  Corp.,
991 P.2d 757, 761 (Alaska 1999))).

     24    See  City of Cordova v. Medicaid Rate Commn,  Dept  of
Health & Soc. Servs., State, 789 P.2d 346, 352 (Alaska 1990)  (It
is a maxim of construction that specific statutes should be given
precedence over more general ones.).

     25   Slip Op. at 8, 10.

     26    See  McLaughlin v. Lougee, 137 P.3d 267,  277  (Alaska
2006)  (The  scant  legislative  history  demonstrates  that  the
initiatives  supporters  were concerned almost  exclusively  with
ensuring that defendants would be liable only for their share  of
fault.  (quoting Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d  98,
106 (Alaska 2000))).

     27    See Election Pamphlet for 1987 Initiative Proposal No.
2 (87TOR2) (statement in support).

     28   See id. (statement in opposition).

     29    See  House  Floor  Debate on  SB  337  (May  8,  1986)
(statement of Rep. Pearce) (noting that the real victims  that  I
think  were  all  here working for are the people  who  cant  get
insurance  because their rates have gone out of  sight  and  that
society  has  gone  overboard for the  victims),  transcribed  in
Respondents Brief, FMC Corp. v. Craig Taylor Equip. Co.,  No.  S-
2261 (Alaska 1988), App. B, at 2425; id. at 57 (statement of Rep.
Pignalberi) (rebutting criticism that tort reform proposal  would
have no effect on insurance rates); id. at 109 (statement of Rep.
Miller)  (arguing that anything less than pure several  liability
is  unfair to defendants); id. at 111 (statement of Rep. Boucher)
(arguing  that tort reform is necessary because of general  greed
of  our  society); id. at 116 (statement of Rep. Hanley)  (noting
that  I think there are members among us who, perhaps, even think
that  the  simple  several liability . .  .  is  .  .  .  a  fair
approach); Senate Floor Debate on SB 337 (May 5, 1986) (statement
of  Sen.  Faiks) (noting that Director of Division  of  Insurance
believed  that  limitations on joint and several liability  would
allow division to gain rate reductions, new markets and increased
capacity), transcribed in Respondents Brief, FMC Corp.  v.  Craig
Taylor Equip. Co.,  No. S-2261 (Alaska 1988), App. A, at 33;  id.
at  67  (statement of Sen. Kelly) (arguing that  the  bill  would
lower  insurance  premiums and increase insurance  availability);
see  also  Letter from Governor Bill Sheffield to Sens.  Faiks  &
Sackett,  Co-Chairs, Senate Finance Committee  and  Rep.  Miller,
Chairman, House Judiciary Committee, at 1 (Apr. 28, 1986) (noting
that  the  real  goal  of  tort reform is affordable  insurance);
Election  Pamphlet for 1987 Initiative Proposal  No.  2  (87TOR2)
(statement in support) (arguing that joint and several  liability
is  unfair because it forces people to pay for damages caused  by
somebody  else); id. (statement in opposition) (arguing  that  if
several liability is enacted, the insurance company wins and  the
victim loses); cf. ch. 26,  1, SLA 1997 (explaining that purposes
of   1997   tort  reform  act  included  discouraging   frivolous
litigation, alleviat[ing] the high cost of malpractice  insurance
premiums,  and  fostering an environment likely  to  control  the
increase of liability insurance rates).

30     Some  legislators  reluctantly  supported  the  1986  tort
reform   bill   that  introduced  partial,  or  modified,   joint
liability,  because this represented a compromise  seen  as  less
harmful  to  plaintiffs  than pure several  liability  ultimately
adopted in 1988.  See Senate Floor Debate, supra note 29,  at  34
(statement  of Sen. Josephson) (explaining that many  of  us  who
would  prefer  to  continue to have the  doctrines  of  tort  law
developed  in the courts arising out of concrete fact  situations
with  advocacy on both sides are yielding, in a sense, our better
judgment  and saying were willing to legislate because  there  is
that  crisis or the perception of a crisis); id. at 25 (statement
of  Sen.  Rodey) (describing his proposal for modified joint  and
several  liability as a middle ground).  One legislator  reasoned
that  a  benefit  of  tort reform would be  that  more  potential
tortfeasors  could  afford liability insurance,  and  thus  might
increase the chances tortfeasors would be able to respond to tort
claims.  See id. at 6768 (statement of Sen. Eliason).

     31    See Election Pamphlet for 1987 Initiative Proposal No.
2 (87TOR2) (statement in support).

     32    See  ch. 80,  1, SLA 1970 (codified as amended  at  AS (codifying joint and several liability); ch.  139,
11, SLA 1986 (establishing several and modified joint liability);
see also Kodiak Island Borough v. Roe, 63 P.3d 1009, 1013 (Alaska
2003)  (explaining  history of joint  and  several  liability  in

     33    Universal Motors, Inc. v. Neary, 984 P.2d 515  (Alaska

     34    See former AS 09.17.080(a) and .080(a)(2) (1993) (both
referring to parties and persons released from liability under AS

     35    See  Benner, 874 P.2d at 958 n.18 (consulting repealed
AS 09.16.040 in interpreting AS 09.17.080(a)).

     36    Navistar Intl Transp. Corp. v. Pleasant, 887 P.2d  951
(Alaska 1994).

     37    Id. at 95354. When Pleasant was injured, Alaska had  a
system  of  modified  joint and several liability,  which  capped
joint  liability against a tortfeasor less than fifty percent  at
fault   at  twice  its  percentage  of  fault.   See  former   AS
09.17.080(d) (1987).

     38   Navistar, 887 P.2d at 954.

     39   Id.

     40   Id. at 956.  The specific facts of Navistar are complex
because  of the number of alleged tortfeasors.  Here is  how  the
superior court calculated the judgment.  It first subtracted  the
portion  of  the  settlement allocated  to  compensatory  damages
($1,525,046) from the jurys total damages verdict and prejudgment
interest  ($3,431,459.61).  Id.  The court then  further  reduced
the  award by the amount of a settlement with a second tortfeasor
($200,000)  and  plaintiffs  ten percent  comparative  negligence
($342,510.10)  for  a  total of $1,357,544.94.   Id.   The  court
compared  this  total to the amount called for  by  the  modified
joint  and  several liability system in force at the  time.   Id.
For  the  modified  joint and several liability calculation,  the
court  deducted  the  enhanced prejudgment interest  on  the  two
settlements  from  $3,431,459.61 and multiplied  this  amount  by
twice  the proportion of Navistars fifteen percent share  of  the
fault (.15 x 2 = .30) for a total of $1,027,530.31.  Id.  Because
this  modified pro rata approach yielded an amount less than  the
$1,357,544.94  called  for by the pure pro  tanto  approach,  the
court  entered  judgment for the smaller amount.   Id.   Had  the
superior  court subtracted the entire $2.1 million in making  the
first  calculation,  the  result  would  have  been  lower   than
$1,027,530.31  and  the  superior  court  presumably  would  have
entered judgment for that lower amount.

     41    Id.   It tested the pro rata reduction result  against
the  pro  tanto  reduction result and based the judgment  on  the
lower of the two.  Id.  It thus applied both AS 09.17.080(c)  and
AS  09.17.080(d) (as it then read) by reading each as setting the
remaining defendants maximum liability.

     42   Id.

     43   Id. at 958.

     44    Id.  Because the superior court also failed to make  a
second,  unrelated reduction, the result of our holding was  that
the defendant owed nothing to the plaintiff.  Id.

     45   Norcon, Inc. v. Kotowski, 971 P.2d 158 (Alaska 1999).

     46   Id. at 163, 171.

     47   Id. at 171.

     48   Id. at 163.

     49   Id. at 171.

     50   Id.

     51    Universal  Motors, Inc. v. Neary, 984  P.2d  515,  516
(Alaska 1999).

     52   Id. at 516.

     53   Id. at 518.

     54   Id.

     55   Id. at n.13.

     56    Bohna  v. Hughes, Thorsness, Gantz, Powell &  Brundin,
828 P.2d 745, 75859 (Alaska 1992).

     57   Id. at 758 (quoting Cullen v. Atchinson, Topeka & Santa
Fe Ry. Co., 507 P.2d 353, 362 (Kan. 1973) (alteration in Bohna).

     58   Id. at 75859.

59    Chenega  Corp.  v. Exxon Corp., 991 P.2d 769,  790  (Alaska
1999)  ([P]ayments made to the victim from non-collateral sources
such  as  the tortfeasors insurance company or a joint tortfeasor
reduce the tortfeasors liability.).

     60    Slip  Op. at 10.  The regime was enacted in 1988  when
voters  approved the 1987 initiative proposal; the regime  became
effective in 1989.  See 1987 Initiative Proposal No. 2.

     61   Navistar, 887 P.2d at 956.

     62    We  overrule our decisions only when clearly convinced
that  the  rule  was originally erroneous or is no  longer  sound
because of changed conditions, and that more good than harm would
result  from  a departure from precedent.  State v. Fremgen,  914
P.2d  1244, 1245 (Alaska 1996) (quoting State v. Dunlop, 721 P.2d
604,  610  (Alaska 1986) (internal quotation marks omitted);  see
also  Thomas v. Anchorage Equal Rights Commn, 102 P.3d  937,  943
(Alaska  2004)  (The  stare decisis doctrine  rests  on  a  solid
bedrock  of  practicality: no judicial system could  do  societys
work  if it eyed each issue afresh in every case that raised it.)
(quoting Pratt & Whitney Canada, Inc. v. United Techs., 852  P.2d
1173, 1175 (Alaska 1993) (internal quotation marks omitted).   In
recognizing the importance of this doctrine, we have consistently
held  that  a  party raising a claim controlled  by  an  existing
decision  bears  a  heavy threshold burden of showing  compelling
reasons for reconsidering the prior ruling.  Id. at 943.

     63   Slip Op. at 8.

     64    Slip  Op.  at  8  (citing Election Pamphlet  for  1987
Initiative Proposal No. 2 (87TOR2) (statement in support)).

     65   Slip Op. at 12.

66      The   history   of   the   initiative,   including    the
explanation on the ballot, is not so clear on the reduction topic
as to nullify the words of AS 09.17.080(c).

     67    See McDougald v. Garber,  536 N.E.2d 372, 37475  (N.Y.
1989)  (noting that recovery of noneconomic damages rests on  the
legal  fiction  that money damages can compensate for  a  victims
injury. We accept this fiction, knowing that although money  will
neither  ease  the pain nor restore the victims  abilities,  this
device is as close as the law can come in its effort to right the
wrong. (internal quotation marks omitted)).

     68   See Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas.
25,  39 (U.K.) (famously defining the measure of damages as  that
sum  of  money which will put the party who has been injured,  or
who  has suffered, in the same position as he would have been  in
if he had not sustained the wrong for which he is now getting his
compensation or reparation), quoted in Harvey McGregor,  McGregor
on Damages 10 (14th ed. 1980).

     69   See W. Page Keeton, et al., Prosser and Keeton on Torts
1,  at  6 (5th ed. 1984) (The purpose of the law of torts  is  to
adjust  [losses  or  injuries  sustained  as  a  result  of   the
activities  of others], and to afford compensation  for  injuries
sustained by one person as the result of the conduct of  another.
(quoting  Cecil A. Wright, Introduction to the Law  of  Torts,  8
Cambridge L.J. 238 (1944))).

     70    See  Noffsinger v. State, 850 P.2d  647  (Alaska  App.
1993)  (suggesting that legislature may have switched to  several
liability system because of inequity that results from joint  and
several  liability,  where among several independently  negligent
parties whose conduct combines to cause an injury, the party  who
is  capable of paying  although only partially responsible   will
end  up paying the full award); Laubach v. Morgan, 588 P.2d 1071,
1075   (Okla.   1978)  (noting  that  legislative  enactment   of
comparative  negligence statute required judicial abolishment  of
joint   and  several  liability  because  [h]olding  a  defendant
tortfeasor,  who is only 20 percent at fault, liable  for  entire
amount  of  damages is obviously inconsistent with the  equitable
principles  of  comparative negligence), quoted  in  3  Stein  on
Personal Injury Damages Treatise  14:24 (3d ed. 1997).

     71    As the United States Court of Appeals for the District
of Columbia has explained:

          [A]  cardinal principle of law is that in the
          absence  of punitive damages a plaintiff  can
          recover   no  more  than  the  loss  actually
          suffered.    For   when  the  plaintiff   has
          accepted satisfaction in full for the  injury
          done him, from whatever source it may come  .
          .  . he is so far affected in equity and good
          conscience, that the law will not permit  him
          to  recover  again for the same damages.  The
          office of compensatory damages is to make the
          plaintiff whole, but certainly not more  than
Kassman  v. American Univ., 546 F.2d 1029, 1033 (D.C. Cir.  1976)
(internal footnotes and quotation marks omitted).

     72    See  Keeton supra note 69,  1, at 7 (The civil  action
for  a  tort  .  . . is commenced and maintained by  the  injured
person,  and its primary purpose is to compensate for the  damage
suffered, at the expense of the wrongdoer.).

     73    See  id.   1,  at  9 (The idea of  punishment,  or  of
discouraging other offenses, usually does not enter into tort law
. . . .).

     74    Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 766
(Alaska 1973).

     75    See ch. 139,  1, SLA 1987 (codified as amended  at  AS

     76    In  Chenega  Corp. v. Exxon Corp., 991 P.2d  769,  791
(Alaska  1999),  we  explained  that  AS  09.17.070  limits   the
circumstances  in  which  a victim can receive  double  recovery,
while  enhancing the chances that a tortfeasor may  not  be  held
fully accountable.

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