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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Uncle Joe's, Inc. v. L.M. Berry and Company (04/06/2007) sp-6115

Uncle Joe's, Inc. v. L.M. Berry and Company (04/06/2007) sp-6115, 156 P3d 1113

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


UNCLE JOES INCORPORATED, )
) Supreme Court Nos. S- 11516/11545
Appellant and )
Cross-Appellee, ) Superior Court No.
) 3AN-03-06074 CI
v. )
) O P I N I O N
L.M. BERRY AND COMPANY, )
d/b/a THE BERRY COMPANY, ) No. 6115 - April 6, 2007
)
Appellee and )
Cross-Appellant. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   Jeffrey J.  Jarvi,  Anchorage,
          for Appellant and Cross-Appellee.  Douglas S.
          Parker,  Dennis  J.  Efta,  Preston  Gates  &
          Ellis, LLP, Anchorage, for Appellee and Cross-
          Appellant.

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

          MATTHEWS, Justice.


          Uncle  Joes,  Inc., appeals and L.M. Berry and  Company
cross-appeals in a case arising from errors in entries for  Uncle
Joes  Pizzerias in both the White and Yellow Pages of  the  2002-
2003  Anchorage  telephone directory.  Uncle Joes challenges  the
grant  of summary judgment to Berry on the interpretation  of  an
exculpatory tariff, the superior courts refusal to order Berry to
produce   attorney-client  communications,  and  the   award   of
attorneys fees and costs to Berry.  Berry appeals from  an  order
on   summary  judgment  declaring  the  limitation  of  liability
provision  in  its  pre-printed  order  form  for  Yellow   Pages
advertisements invalid.  We reverse the superior courts  decision
on  the  effect of the tariff.  This requires that the  award  of
attorneys fees also be vacated.  Uncle Joes discovery argument is
moot  as is Berrys argument regarding the limitation of liability
clause.
     The White and Yellow Pages Directory Errors
     
          Uncle Joes operates five pizzerias in Anchorage.  It is
primarily a take-out and delivery business relying heavily on the
promotion  of  its  name and telephone number.   Berry  publishes
telephone  directories  for telephone  companies  throughout  the
United  States.   Berry  contracted  with  Alaska  Communications
Systems  (ACS)  in  the mid-1990s to publish Anchorage  telephone
directories.   By 2002 the ACS directory was used  by  eighty-six
percent of customers in the area.
          An  error  in Uncle Joes listing appeared in the  2002-
2003  White Pages Directory published by Berry.  The address  and
telephone number for each of Uncle Joes five pizzeria outlets was
listed, but the name Uncle Joes Pizzeria was omitted. Without the
business  name, Uncle Joes information was listed under the  name
Uncle  George the Clown.  As a result, Uncle Joes claims that  it
lost  revenues of $435,153.64 between June 1, 2002, and  June  1,
2003, and was forced to lay off three employees and relocate  its
corporate office to the home of its president.
          A minor error concerning Uncle Joes also appeared in an
advertisement  in  the  2002-2003 Yellow  Pages  Directory,  also
published by Berry.  Uncle Joes advertisement was published  with
the graphic designers digital watermark still included, resulting
in  a  faint cross within a circle design appearing in the middle
of  the  advertisement.  Uncle Joes had ordered the Yellow  Pages
advertisement  on  Berrys  Directory  Advertising  Order,   which
contained  standard  terms  and  conditions  pre-printed  on  the
reverse side.  Section 8 of these conditions limits the liability
of both ACS and Berry for errors in printed advertisements to the
amount  paid  by the advertiser for said item of advertising  and
further applies the limitation of liability to any and all claims
whether in contract, tort, strict liability or otherwise, and  to
any  loss  of business, profits, or additional advertising  costs
incurred.
     Proceedings
          Based  on  these errors, Uncle Joes filed suit  against
Berry  under  theories  of  negligence,  gross  negligence,   and
defamation,   seeking   compensatory   and   punitive    damages.
Subsequently,  Uncle  Joes  filed a motion  for  partial  summary
judgment.  In this motion Uncle Joes sought a ruling that  Berrys
affirmative  defense  that  its  liability  is  limited  by   the
provisions  of an exculpatory tariff filed by ACS1 lacked  merit.
Similarly, the motion challenged Berrys affirmative defense  that
its  liability is limited by section 8 of the conditions  in  its
Yellow  Pages order form.  Berry cross-moved for summary judgment
          on both affirmative defenses, seeking dismissal of Uncle Joes
claims.    While  these  motions  were  pending  and   as   trial
approached, Uncle Joes made a motion to compel the production  of
documents  that  Berry  had  withheld from  discovery  under  the
attorney-client  privilege.  Uncle Joes  argued  that  the  fraud
exception to the attorney-client privilege required production of
the  documents.   Uncle  Joes theory  was  that  Berry  had  been
deceiving  Alaska customers by using the limitation of  liability
clause  in  its Yellow Pages order form while knowing  that  such
clauses  had  been ruled invalid in Municipality of Anchorage  v.
Locker.2  This deceit, Berry argued, amounted to fraud under  the
fraud  exception to the attorney-client privilege  and  thus  the
documents in question were not shielded by the privilege.
          In  an  order dated April 22, 2004, the superior  court
denied  Uncle Joes motion for partial summary judgment concerning
the  tariff and granted Berrys cross-motion for summary  judgment
on  that issue.  The court denied Berrys cross-motion for summary
judgment concerning the Yellow Pages liability limitation  clause
and  implicitly  granted Uncle Joes motion  for  partial  summary
judgment on that issue.
          On April 26, 2004, the superior court denied Uncle Joes
motion to compel, ruling that the civil fraud exception does  not
apply in this case.
          On  May  14,  2004, the parties stipulated to  a  final
judgment,  which  provided that Uncle Joes would recover  nothing
from  Berry  for its claims based on the omission of  Uncle  Joes
name  from the White Pages and that Uncle Joes shall recover from
[Berry] nominal damages in the amount of $10.00 for [Uncle  Joes]
negligence  claim  based on the 2002-2003  ACS  Anchorage  Yellow
Pages.  The stipulation left for adjudication the question of the
award  of fees and costs and provided as follows with respect  to
appeals:   This  order  shall  constitute  an  appealable   final
judgment;  specifically, all rulings made  in  the  Courts  Order
dated  April 22, 2004, shall be appealable by either party.   The
stipulation was so ordered by the superior court.
          Subsequent  to entry of the stipulated judgment,  Berry
moved  for an award of attorneys fees and costs based on an offer
of judgment that it had made pursuant to Civil Rule 68 that Uncle
Joes  had  not  accepted.  The court granted  Berrys  motion  and
awarded attorneys fees of $54,266 and costs of $5,056 to Berry.
          Uncle  Joes now appeals from the courts ruling of April
22,  2004, that the exculpatory tariff applied to Berry, from the
courts  refusal  to  require  the production  of  attorney-client
communications, and from the award of attorneys fees and costs to
Berry.  Berry cross-appeals, claiming that the court erred in its
order  of  April 22, 2004, when it ruled that the  limitation  of
liability clause in the Yellow Pages order form was invalid.
     The April 22, 2004 Decision of the Superior Court
          The  superior courts decision with respect  to  whether
the  exculpatory  clause of the tariff applied to  Berry  was  as
follows:
               Uncle Joes argues that the Tariff Advice
          only  applies  to ACS and not  to  the  Berry
          company.   Berry on the other  hand  contends
          that  the  focus  should be on  the  activity
          regulated  and  not the entity that  performs
          the function.  It is undisputed that ACS does
          not  publish  its  own  telephone  directory.
          Instead,   ACS   has   had   a   longstanding
          relationship  with the Berry company  as  the
          publisher  of its directories.   It  is  also
          undisputed that the [Regulatory Commission of
          Alaska  (RCA)] is aware of this  relationship
          and   that  ACS  does  not  publish  its  own
          directories.   This  issue  is  substantially
          similar  to the one presented in Municipality
          of  Anchorage v. Locker, 723 P.2d 1261,  1262
          (Alaska    1986)[,]   where   Yellow    Pages
          advertisers   whose   ads   were    published
          incorrectly  sued the telephone  utility  and
          its  publisher for damages.  In  Locker,  the
          Court  treated the publisher as the  utilitys
          agent.   Id.  at 1261, fn 1.  In  Simpson  v.
          Phone Directories Co., 729 P.2d 578 (Or. App.
          1986),  the court drew a distinction  between
          the  regulated  service  of  published  phone
          listings  as  opposed  to  unregulated  phone
          listings.   Where the listing  is  regulated,
          limited  liability was imposed.   This  court
          finds that the publication of the White Pages
          is  governed  by the RCA and imposes  limited
          liability  on Berry.  Accordingly,  Berry  is
          subject  to  the limited liability protection
          contained in Tariff Advice 416-120.
          The  courts  decision with respect  to  the  liability-
limiting provision of the Yellow Pages order form was as follows:
               However, this liability limitation  only
          applies  to  statutorily  required  services,
          i.e.,  the  alphabetical  listings.   As  the
          Alaska Supreme Court stated in Locker:
               Yellow              Pages
               advertisements are not  a
               telecommunication
               service.   To  apply  the
               tariff provision to  such
               advertisements  we  would
               imply   that  [the   RCA]
               could regulate the Yellow
               Pages.   We  decline   to
               imply   such   regulatory
               authority.            The
               administrative
               regulations    explicitly
               make  publication of  the
               Yellow Pages optional.
          Id. at 1264.
               The  next  question,  then,  is  whether
          Berrys  contract for Yellow Pages advertising
          with Uncle Joes will shield it from liability
          for  the alleged mistake in the 2002/2003 ACS
          Yellow  Pages.  When presented with a similar
          question, the Court in Locker answered in the
          negative, reasoning that the contract entered
          into  between the utility  then ATU  and  its
          advertisers was unconscionable.  Id. at 1266-
          1267.
               Berry  invited  this court  to  overrule
          Locker.  At the time the Alaska Supreme Court
          decided  Locker, the court was aware that  it
          was adopting the minority position.  Although
          some of the jurisdictions relied on in Locker
          have  since changed to the majority position,
          it   is  not  the  place  of  this  court  to
          disregard clearly decided Alaska law.
               Further, the factors that led the  Court
          in  Locker  to  conclude that publication  of
          Yellow   Pages  is  affected  with  a  public
          interest  have  not  changed:   Yellow  Pages
          still  serve  the  public, and  Yellow  Pages
          advertising still provides an affordable  way
          for  small  businesses to advertise.   Courts
          are permitted to give heightened scrutiny  to
          businesses  that  hold  themselves   out   as
          willing    to    provide    such    services.
          Accordingly, Berry, as a provider of a public
          service, may not shield itself from  its  own
          negligence.   Whether  or  not  a  duty   was
          breached and the amount of damages,  if  any,
          are questions for a jury to decide.
               Therefore,  this  court  concludes  that
          Plaintiffs  damages for the omission  of  its
          name from the regular listings are limited by
          tariff,  while  any  provable  damages  as  a
          result of the blemish in the Yellow Pages are
          not so limited.
     The Exculpatory Clause in the Tariff Does Not Apply to Berry
          Uncle  Joes argues that the tariff does not  extend  to
Berry because exculpatory and limitation of liability clauses are
disfavored  in  Alaska  and are strictly  construed  against  the
drafter.   One consequence of the rule of strict construction  is
that  ambiguities  in exculpatory clauses will, where  reasonably
possible,  be  resolved against the drafter.  Uncle  Joes  argues
that  this  rule applies to tariffs and that the tariff  in  this
case  is  ambiguous with respect to whether it applies  to  Berry
because it mentions only ACS, not those with whom ACS contracts.
          Berry argues that the exculpatory tariff does apply  to
Berry  even  though  it  does  not refer  to  Berry  by  name  or
description.   In support of this position Berry argues  that  in
Municipality  of  Anchorage v. Locker,3 this  court  treated  the
liability of the telephone companys contract publisher  the  same
as  the  liability of the telephone company.  Berry  also  argues
that  the  RCA has jurisdiction over the White Pages  publication
and that a tariff should be construed like a statute, rather than
strictly  against  the  drafter.  Berry  contends  that  exposing
contract publishers to liability for mistakes would subject  them
to  inordinate  expenses,  which ultimately  would  be  borne  by
telephone  customers  in  the  form  of  elevated  rates.   Berry
concludes:
               In view of the statutory framework under
          which the RCA operates and the related policy
          concerns,  [the court] interpreting  the  ACS
          Tariff  should  determine if  the  Tariff  is
          consistent  with and reasonably necessary  to
          carry  out  the  purposes  of  the  statutory
          provisions,  and  whether  the  [Tariff]   is
          reasonable  and  not arbitrary.   (Quotations
          and citation omitted.)
          The   tariff   explicitly  applies   only   to   Alaska
Communications Systems.  It does not purport to apply to entities
with  which ACS contracts.  Thus, under a literal application  of
the  tariff,  only ACS is exculpated from liability arising  from
errors or omissions in its directories.  Only if the tariff is to
be broadly read could contractors with ACS also be brought within
the  coverage  of the tariff.  We believe that either  a  literal
reading   in which the tariff applies only to ACS  or a broadened
reading  in which the tariff also applies to entities that  print
ACS  directories under contract with ACS  is reasonably possible.
In this sense, then, the tariff is ambiguous.
          Uncle  Joes is correct that in a non-tariff contractual
setting  this court has held that exculpatory language should  be
narrowly  construed.  Our case law teaches that the law disfavors
and   sometimes  positively  forbids4   contractual   exculpatory
clauses.5   As we stated in Bank of California v. First  American
Title Insurance Co.:
          [A]s  a general rule, contractual limitations
          on  liability for negligence must be  clearly
          set  forth.   Dresser  Indus.  Inc.  v.  Foss
          Launch  & Tug Co., 560 P.2d 393, 395  (Alaska
          1977).    If the defendant seeks  .  .  .  to
          escape responsibility for the consequences of
          his negligence, then [the disclaimer] must so
          provide,  clearly  and unequivocally,  as  by
          using  the word negligence itself.    Kissick
          v.  Schmierer,  816  P.2d  188,  191  (Alaska
          1991).[6]
In  Kissick  we stated that an agreement purporting to  exculpate
the drafter from liability for negligence or tortious conduct  is
not  effective  unless  the  agreement  is  clear,  explicit  and
comprehensible in each of its essential details.7
          There   are   a   number  of  reasons  why  contractual
exculpatory  clauses  are  disfavored  and  strictly   construed.
First, they alter the normal rule that a party is responsible  in
damages  for its negligent conduct.8  Second, they are  typically
imposed  on a take-it-or-leave-it basis, rather than negotiated.9
Third,  the  party benefitting from the clause  is  usually  much
stronger economically than the party left without legal recourse.10
Fourth, the party benefitting from the clause usually has drafted
it,  and  it is regarded as fair to construe ambiguities  against
the party that is responsible for them.11
          Here,  the clause is contained in a tariff rather  than
in  a  contract.   The  question is whether the  rule  of  strict
construction  that  we  have applied  in  a  contractual  setting
applies to tariffs.
          Tariffs in Alaska, as in most other jurisdictions,  are
drafted  by the utility.  They become applicable unless  rejected
by the RCA within forty-five days after they are filed.12  Tariffs
control the terms and conditions under which a utility offers its
services   to   the   public.13   Tariffs  containing   liability
limitations  or  exculpatory provisions are thus  like  contracts
containing  similar  provisions in at least two  respects.   They
purport to govern the relationship between the parties, and  they
are  drafted unilaterally by the party seeking the benefit of the
provision.
          Numerous  authorities  in other jurisdictions  indicate
that  when  a tariff is ambiguous it should be construed  like  a
contract  and  thus  favorably to the customer  and  against  the
drafter.   As the Supreme Court of Illinois has recently  stated:
[B]ecause  the utility company drafts a tariff, it  is  generally
accepted  that  language  in  a  tariff,  especially  exculpatory
language, is to be strictly construed against the utility company
and in favor of the customer.14  This rule is widely recognized.15
We think that it should be applied in Alaska.
          We  adopt the rule that exculpatory clauses in  tariffs
should be strictly construed against the utility and in favor  of
the customer because all the reasons for disfavoring such clauses
in  contracts also apply to tariffs.  Tariff exculpatory  clauses
alter  the  normal  rule that an entity is  responsible  for  the
consequences of its negligent conduct; they are imposed on a take-
it-or-leave-it  basis,  without the possibility  of  negotiation;
they benefit the typically economically stronger utility; and, as
they  are  also  drafted by the utility, it is fair  to  construe
uncertain   language   against  the   utility   whose   imprecise
draftsmanship has created the uncertainty.
          Berry  relies  heavily on one case, Waters  v.  Pacific
Telephone  Co.,  which  declined  to  follow  a  rule  of  strict
construction in connection with a liability-limiting clause in  a
tariff.  16  In Waters the California Supreme Court held  that  a
liability-limiting clause in a tariff should  be  enforced  in  a
negligence  claim even though it did not specify that it  applied
to  cases of negligence on the part of the utility.  The court so
held  because  the  California Public  Utilities  Commission  had
adopted a policy of limiting the liability of telephone utilities
          for acts of ordinary negligence and relied on the validity of
liability-limiting clauses in setting rates.17  In addition,  the
court  noted that subsequent to the events that led to the filing
of the Waters case, the Public Utilities Commission issued a rule
requiring telephone utilities to adopt a standard form limitation
of  liability provision in their tariffs.18  No similar situation
exists in Alaska.
          Berry  does not argue that the RCA has adopted a policy
of limiting the liability of utilities for acts of negligence or,
more  pertinent  to the present case, limiting the  liability  of
entities  that  contract  with utilities.   Further,  unlike  the
California  commission,  the  RCA  now  requires  that  utilities
publish  in  online  tariffs a statement that any  limitation  of
liability  clause does not prevent a court from  determining  the
validity  of  the limitation of liability provision,  or  of  any
exculpatory clause, under applicable law.19  The  RCA  thus,  far
from  approving  and  requiring the inclusion  of  limitation  of
liability clauses as in Waters, has recognized that limitation of
liability provisions and exculpatory clauses included in  tariffs
might  not  be valid or enforceable and that questions concerning
their validity are subject to judicial determination.20
          Berrys  reliance on the fact that in Locker this  court
noted that we would treat the utilitys contract publisher of  the
Yellow Pages directory the same as the utility does not mean that
the tariff in this case protects Berry.  In Locker the tariff  in
question  was  similar to that in this case.   It  provided  that
there would be no liability to the utility arising from errors in
its directories except for charge listings and in charge listings
its  liability should be limited to a refund of the monthly  rate
paid.   The  error complained of in Locker was an  error  in  the
Yellow Pages, a charge listing.  We decided, despite the language
of  the tariff, that the tariff did not apply to the Yellow Pages
because   the  RCA  lacked  the  power  to  regulate   classified
advertisements.21  The tariff therefore did not apply to  protect
either  the  utility  or  the directory  publisher.   We  had  no
occasion  to  decide  the  question  presented  here,  which  is,
assuming  that  the  tariff protects the utility,  does  it  also
protect  the publisher with which the utility contracts.   Locker
thus is not helpful to Berrys position.
          Berrys  argument  that the tariff should  apply  to  it
because  otherwise  telephone rates will  increase  resembles  an
argument that was made and rejected in Locker.  There the utility
argued  that  the limited liability clause should  be  considered
part  of its tariff because such limitation directly affects  the
rates  it  charges. Without such a limitation,  it  asserts,  the
overall  rates  for its service might increase.  Therefore,  [the
utility] reasons, the [RCA] properly accepted the tariff limiting
Yellow  Pages  liability under its authority to regulate  overall
rates.22   We  did not take issue with the proposition  that  not
applying the clause could have an effect on the utilitys revenues
and  costs and thus influence rates.  But we held that  any  such
effect was not in itself sufficient to require application of the
tariff  to  Yellow  Pages advertising:  A mere tangential  effect
upon  overall rates will not suffice to limit categorically  [the
          utilitys] liability for negligence.23
          Here,  similarly,  imposing  liability  on  Berry   for
negligent   mistakes  made  in  publishing  a   directory   might
ultimately mean that it is more costly or less profitable for ACS
to  issue telephone directories.  But this is only a possibility.
Under  the  existing contract between ACS and Berry the  risk  of
publishing errors is allocated to Berry, and Berry is required to
carry liability insurance to guard against such errors.  ACS  and
Berry  have  therefore  already  taken  steps  to  guard  against
liability  for  publishing  errors.  They  have  presumably  also
already  absorbed  the costs associated with  these  steps.   The
possibility  that there will be increased costs to ACS  resulting
from not applying the tariff to Berry that will ultimately affect
rates  seems  here to be not only tangential, as in  Locker,  but
distinctly speculative.
          For  these  reasons we conclude that a rule  of  strict
construction  should  be  employed to  construe  the  exculpatory
tariff.   When  such  a rule is employed it  is  clear  that  the
exculpatory  tariff does not protect Berry.   As  already  noted,
Berry  is not mentioned either by name or by description  in  the
tariff.  With reference to Berry, therefore, the tariff is not an
instrument in which the intent to release a party from  liability
for   future   negligence  is  conspicuously  and   unequivocally
expressed.24
     Other Issues
          Because  as  the  case  now stands  Berry  is  not  the
prevailing party, the award of attorneys fees and costs  must  be
vacated.
          Uncle  Joes has waived the right to appeal the superior
courts   refusal   to   compel  production   of   attorney-client
communications.   Parties  generally  cannot  appeal   stipulated
judgments.25  In a civil case, at most, a party may appeal from a
stipulated  judgment where the stipulation expressly reserves  an
issue  for  appeal.26  The stipulated judgment here reserves  the
right  to appeal only the April 22, 2004 summary judgment  order,
not  the  April 26, 2004 denial of the motion to compel.  Without
an  indication that the parties intended to reserve the right  to
appeal this order, this court will not consider it.
          Berrys  contention that the court erred in refusing  to
enforce the Yellow Pages liability limitation clause is moot.   A
case  is  moot  if  the party bringing the action  would  not  be
entitled to any relief even if it prevailed.27  If Berry prevailed
on  this claim, it would still be liable under its contract  with
Uncle  Joes for the cost of the ads.  The nominal damages awarded
Uncle  Joes  by stipulation, $10, are less than the amount  Uncle
Joes paid Berry for the ad.  Therefore, even if the limitation of
liability  clause  were valid the award to Uncle  Joes  would  be
sustained and Berry would be entitled to no relief.
     Conclusion
          For  the  reasons stated, the judgment of the  superior
court  dismissing Uncle Joes claim with respect to the  error  in
the  White Pages is REVERSED and the award of costs and attorneys
fees  to  Berry  is  VACATED.  The judgment awarding  Uncle  Joes
nominal  damages  for an error in the Yellow Pages  is  AFFIRMED.
This   case  is  REMANDED  to  the  superior  court  for  further
proceedings consistent with this opinion.
_______________________________
     1    The exculpatory tariff provided:
          Errors   No liability arising from errors  or
          omission  [sic] in the making up or  printing
          of  its  directories  shall  be  attached  to
          Alaska  Communications Systems except in  the
          case  of  charge listings.  After  reasonable
          notice  is  provided  in  writing  to  Alaska
          Communications  Systems  in  connection  with
          these,  its liability shall be limited  to  a
          refund at the monthly rate for each listing.
          
     2    723 P.2d 1261 (Alaska 1986).

     3    723 P.2d 1261, 1262 n.1 (Alaska 1986).

     4     We  have  indicated  that exculpatory  provisions  are
prohibited,  as  distinct from being merely  narrowly  construed,
where  they are imposed on consumers by a business affected  with
the  public  interest.   Thus, in Bank  of  California  v.  First
American  Title  Insurance Co., we held  that  a  title  companys
effort  to  disclaim  liability for  negligence  was  ineffective
because [a] title company is engaged in a business affected  with
the   public  interest  and  cannot,  by  an  adhesory  contract,
exculpate  itself from liability for negligence.  826 P.2d  1126,
1130 (Alaska 1992) (quoting White v. Western Title Ins. Co.,  710
P.2d   309,  315-16  (Cal.  1985)).   In  support  of  the   same
proposition we also cited Locker, 723 P.2d at 1265-66, giving the
following  parenthetical explanation:  [E]xculpatory clauses  are
unconscionable where circumstances indicate a vast  disparity  of
bargaining power coupled with terms unreasonably favorable to the
stronger party.   Bank of Cal., 826 P.2d at 1130.

     5     See Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004);
Bank  of Cal., 826 P.2d at 1130; Dresser Indus. v. Foss Launch  &
Tug Co., 560 P.2d 393, 395-96 (Alaska 1977).

     6    826 P.2d at 1130.

     7    816 P.2d at 191.

     8     E.g.,  Valhal Corp. v. Sullivan Assocs., 44 F.3d  195,
202  (3d  Cir. 1995) (holding exculpatory clauses are  disfavored
and  strictly  construed  since parties  should  not  be  lightly
permitted to shed their liability for negligence).

     9     See,  e.g.,  Kissick, 816 P.2d at  191  (holding  that
exculpatory provisions should be strictly construed when found in
contracts of adhesion).

     10    E.g., Locker, 723 P.2d at 1265 (holding that the party
invoking exculpation possesses a decisive advantage of bargaining
strength  against  any  member  of  the  public  who  seeks   his
services).

     11     E.g., Restatement (Second) of Contracts  206  cmt.  a
(1981)  (stating that construing ambiguities against the  drafter
discourages  them from surreptitiously including terms  to  which
the non-drafting party did not agree).

     12    AS 42.05.361(c).

     13    AS 42.05.371.

     14     Adams v. N. Ill. Gas Co., 809 N.E.2d 1248, 1271 (Ill.
2004).

     15     See, e.g., Komatsu, Ltd. v. States S.S. Co., 674 F.2d
806,  811 (9th Cir. 1982) (As the carrier is the tariffs  author,
ambiguities  in  its language must be strictly construed  against
the  carrier.); Norfolk & W. Ry. Co. v. B. I. Holser &  Co.,  629
F.2d  486,  488 (7th Cir. 1980) ([T]he tariff should be construed
strictly  against  the  carrier since  the  carrier  drafted  the
tariff;  and  consequently,  any ambiguity  or  doubt  should  be
decided  in  favor  of the shipper.); Contl  Can  Co.  v.  United
States,  272  F.2d  312, 315 (2d Cir. 1959) (holding  [a]mbiguity
should  be resolved against the carrier where the tariff,  having
been written by the carrier, is vulnerable against the carrier if
the  tariffs  meaning is ambiguous) (quotations omitted);  United
States v. Interstate Commerce Commn, 198 F.2d 958, 966 (D.C. Cir.
1952)   (Since  the  tariff  is  written  by  the  carrier,   all
ambiguities  or  reasonable doubts as  to  its  meaning  must  be
resolved against the carrier.); Natl Telecomms. Assn v. Am.  Tel.
&  Tel.  Co.,  1997 WL 466556, at *4 (S.D.N.Y.  1997)  (A  tariff
between  a carrier and its customer is a contract and as such  is
to  be  interpreted according to general principles  of  contract
law.   Under  general principles of contract law, I must  resolve
ambiguities  in  the tariff language against the carrier  and  in
favor  of the customer.) (citations omitted); Pink Dot,  Inc.  v.
Teleport  Commcns Group, 107 Cal. Rptr. 2d 392,  397  (Cal.  App.
2001)  (The rule has been stated many times that if there  is  an
ambiguity in a tariff any doubt in its interpretation  is  to  be
resolved  in favor of the [nondrafter and against the utility].);
S.  Pac. Co. v. U.S. Steel Corp., Consol. W. Steel Div., 40  Cal.
Rptr. 135, 139 (Cal. Dist. App. 1964); Transmix Corp. v. S.  Pac.
Co.,  9  Cal. Rptr. 714, 719 (Cal. Dist. App. 1961) (Tariffs  are
strictly  construed . . . .);  State Farm Fire & Cas. Co.  v.  S.
Bell  Tel.  & Tel. Co., 262 S.E.2d 895, 897 (Ga. 1980) (referring
to  tariffs,  the court stated:  Prepared by [the utility],  they
must  be  strictly  construed in favor of  the  customer.   If  a
contract  is  of doubtful meaning, it is to be construed  against
the party who drew it.  Generically, the Tariff must be viewed as
a  contract between [the utility] and its customers, affirmed  on
behalf   of   the  latter  by  the  Public  Service  Commission.)
(quotations  and  citation omitted); Estate of  Pearson  ex  rel.
Latta  v. Interstate Power & Light Co., 700 N.W.2d 333, 343 (Iowa
2005)  (If  a  tariff  is  ambiguous, we  strictly  construe  the
language of a tariff against the drafter, the utility.); Marriott
Corp. v. Chesapeake & Potomac Tel. Co. of Md., 723 A.2d 454,  460
(Md.  Spec. App. 1998) (In the event of an ambiguity,  a  tariff,
like  any other contract, must be strictly construed against  the
drafting party.); Info Tel Commcns, LLC v. U.S. W. Commcns, Inc.,
592 N.W.2d 880, 884 (Minn. App. 1999) ([I]n interpreting a tariff
.  . . . where there is ambiguity, the tariff language should  be
construed strictly against its author . . . .); Krasner  v.  N.Y.
State  Elec. & Gas Corp., 457 N.Y.S.2d 927, 929 (N.Y.  App.  Div.
1982)  ([T]ariffs of a public utility are considered as  part  of
the  contract between the customer and the utility. .  .  .   The
tariff  attempts  to  limit  defendants  liability  for  its  own
negligence  and  such exculpatory clauses are strictly  construed
against the party seeking exemption from liability.  Such  strict
construction  is  even  more  necessary  in  view  of  defendants
superior bargaining position.) (citations omitted); Josephson  v.
Mountain Bell, 576 P.2d 850, 852 (Utah 1978) ([Tariffs] should be
construed strictly against the utility . . . .).

     16    523 P.2d 1161 (Cal. 1974).

     17    Id. at 1162, 1167.

     18    Id. at 1165-66.

     19      3  Alaska  Administrative  Code  (AAC)  52.367(c)(6)
provides:
               (c)  A  registered entitys online tariff
          must  include  a  table  of  contents  and  a
          section  for  setting  out  notices  of   any
          proposed tariff revisions, and must  set  out
          in   plain  language  a  statement   of   the
          following:
               . . .
                    (6) a statement that any limitation
               of  liability  provision in  the  online
               tariff is subject to the following:
                         (A)  a  registered entity  may
                    not  disclaim liability for its own
                    gross    negligence   or    willful
                    misconduct;
                         (B)  inclusion of a limitation
                    of   liability   provision   in   a
                    registered  entitys  online  tariff
                    does   not   prevent  a  court   of
                    competent jurisdiction from
                           (i) determining the validity
                         of the limitation of liability
                         provision,    or    of     any
                         exculpatory   clause,    under
                         applicable law; or
                           (ii) adjudicating negligence
                         and    consequential    damage
                         claims.
                         
     20     Although 3 AAC 52.367 did not become effective  until
2003  and the acts giving rise to the present case took place  in
late  2001 and 2002, the regulation is evidence that the RCA  has
not   adopted   a  policy  holding  that  liability-limiting   or
exculpatory clauses are either essential or necessarily valid.

     21    Locker, 723 P.2d at 1264.

     22    Id.

     23    Id.

     24    Moore v. Hartley Motors, Inc., 36 P.3d 628, 633 (Alaska
2001)  (quoting Kissick v. Schmierer, 816 P.2d 188,  191  (Alaska
1991)).    Further,  the  tariff  does  not  explicitly  disclaim
liability due to negligence, either of ACS or other entities,  as
required  by  our case law.  See Moore, 36 P.3d at 633;  Kissick,
816 P.3d at 191.

     25    See, e.g., Legge v. Greig, 880 P.2d 606, 607-09 (Alaska
1994)  (no right to appeal from voluntary dismissal following  an
adverse  ruling where neither the opposing party nor the superior
court  agreed to appealability); Singh v. State Farm  Mut.  Auto.
Ins.  Co., 860 P.2d 1193, 1197 (Alaska 1993) ([A] right to appeal
is waived by stipulating to judgment.).

     26     Legge, 880 P.2d at 608-09; cf. Pratt & Whitney  Can.,
Inc.   v.   Sheehan,  852  P.2d  1173,  1174-75   (Alaska   1993)
(considering  on  appeal,  without  discussing  appealability,  a
strict  liability  claim  that  Pratt  had  not  contested  in  a
stipulated judgment where Pratt expressly reserved the  right  to
appeal  this claim); City of Kenai v. Kenai Peninsula Newspapers,
Inc.,  642  P.2d 1316 (Alaska 1982) (allowing, without discussing
appealability, appeal of a stipulated preliminary injunction that
the parties expressly reserved for appeal).

     27    OCallaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)
(citing Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328,
1329 n.2 (Alaska 1995)).

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