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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pagenkopf v. Chatham Electric, Inc. (08/24/2007) sp-6151

Pagenkopf v. Chatham Electric, Inc. (08/24/2007) sp-6151, 165 P3d 634

     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
                    
RONALD J. PAGENKOPF, )
) Supreme Court No. S- 11580
Appellant/Cross-Appellee, ) Superior Court No. 1JU-02-242 CI
)
v. )
) O P I N I O N
CHATHAM ELECTRIC, INC., )
HUGH DILBECK, individually and ) No. 6151 - August 24, 2007
d/b/a BEAR BODY WORKS, )
)
Appellees/Cross-Appellants. )
)
HUGH DILBECK, individually and )
d/b/a BEAR BODY WORKS, ) Supreme Court No. S- 11729
) Superior Court No. 1JU-02-242 CI
Cross-Appellant/Cross-Appellee, )
)
v. )
)
RONALD PAGENKOPF and )
CHATHAM ELECTRIC, INC., )
)
Cross-Appellees/Cross-Appellants. )
)
CHATHAM ELECTRIC, INC. )
) Supreme Court No. S- 11739
Cross-Appellant/Cross-Appellee, ) Superior Court No. 1JU-02-242 CI
)
v. )
)
RONALD J. PAGENKOPF, )
)
Cross-Appellee/Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Larry R. Weeks, Judge.
Appearances:   Gregory
          W.   Lessmeier  and  Michael  L.   Lessmeier,
          Lessmeier    &    Winters,    Juneau,     for
          Appellant/Cross-Appellee/Cross-Appellant
          Pagenkopf.  R.  N.  Sutliff,  Anchorage,  for
          Appellee/Cross-Appellant/Cross-Appellee
          Dilbeck.    Anthony   M.   Sholty,   Faulkner
          Banfield,  P.C.,  Juneau, for Appellee/Cross-
          Appellant/Cross-Appellee  Chatham   Electric,
          Inc.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh,  and  Fabe, Justices.   [Carpeneti,
          Justice, not participating.]
                    
          BRYNER, Chief Justice.
  
I.   INTRODUCTION
          Nick  Goddard,  an employee of Chatham Electric,  Inc.,
opened  an  overhead garage door while on a job at Hugh  Dilbecks
auto  body  shop  in  Juneau.  The opening  door  knocked  Ronald
Pagenkopf  off  a ladder, severely injuring him.  Pagenkopf  sued
Goddard  and  Chatham Electric (collectively  Chatham).   Chatham
filed  a  third-party complaint against Dilbeck.  After Pagenkopf
rejected  a  pretrial  offer of judgment  from  Chatham,  a  jury
awarded Pagenkopf damages against Chatham and Dilbeck.  The total
award exceeded Chathams pretrial offer, but Chathams share of the
damages  fell  well below the offer.  The superior court  awarded
attorneys  fees  to Chatham under Alaska Civil  Rule  68  because
Pagenkopf  won  less  from Chatham at trial than  he  would  have
received  under  Chathams pretrial offer.   All  parties  appeal.
Pagenkopf  asserts  that  Chathams  offer  of  judgment  was  too
uncertain to support an award under Rule 68; he also contests the
starting date for prejudgment interest to be paid by Dilbeck.  We
hold  that  the pretrial offer created apportionment difficulties
that made it an invalid Rule 68 offer and that Dilbeck should  be
required to pay prejudgment interest from the date he first  knew
that  a  claim  against  him was likely  to  be  filed.   Chatham
challenges   the   accuracy  of  several   monetary   adjustments
incorporated  in the final judgment.  We find these  points  moot
and  decline  to  decide them because our  disposition  of  other
points  will  require  a new judgment to be  entered  on  remand.
Dilbeck contends that a jury instruction improperly required  the
jury to apply negligence per se to decide if he was at fault.  We
conclude that the challenged instruction did not apply negligence
per se or otherwise prejudice Dilbeck.
II.  FACTS AND PROCEEDINGS
          On  February  24, 2001, Nick Goddard,  an  employee  of
Chatham  Electric,  Inc., was working  at  the  request  of  Hugh
Dilbeck  on  a control panel for a paint booth at the  Bear  Body
Shop,  an  auto  repair  shop owned and operated  by  Dilbeck  in
Juneau.  That same day Ronald Pagenkopf, a friend of Dilbeck, was
helping  Dilbeck install overhead fluorescent lights in the  work
area of the shop.
          While Pagenkopf was standing on a ladder working on the
lights,  Goddard  opened the overhead door to enter  the  garage.
The  garage door knocked Pagenkopf off his ladder, causing severe
injuries.   Pagenkopf  filed  suit against  Chatham  and  Goddard
(collectively  Chatham).  Chatham then filed a  third-party  suit
against  Dilbeck for equitable apportionment under  Alaska  Civil
Rule 14(c) and AS 09.17.080.
          In  March 2003 Chatham offered judgment to Pagenkopf in
the  total  amount  of  $525,000  in  complete  satisfaction   of
plaintiffs  claims  against [Chatham] in this  matter.1  Although
Chathams  offer  did  not mention Chathams third-party  complaint
against Dilbeck, Dilbecks insurance carrier had evidently  agreed
to  contribute $150,000 toward the amount Chatham offered.  After
contacting  Dilbeck and learning of his undisclosed participation
in  Chathams  offer, Pagenkopf passed up the offer and  the  case
proceeded to trial.
          The jury found that Pagenkopfs damages totaled $698,800
and  that  Pagenkopf,  Chatham, and Dilbeck  all  shared  in  the
fault;  the verdict allocated twenty-two percent of the fault  to
Pagenkopf, twenty-eight percent to Chatham, and fifty percent  to
Dilbeck.   Chatham  and  Dilbecks combined seventy-eight  percent
share  of  the damages gave Pagenkopf a net verdict  for  damages
totaling  $545,064   $195,664 representing Chathams  twenty-eight
percent   proportionate   share  of  the   fault   and   $349,400
representing Dilbecks fifty-percent share.
          Based  on  this  verdict, Chatham and  Pagenkopf  filed
several prejudgment motions.  Chatham moved for partial attorneys
fees  and  costs  under Civil Rule 68, arguing that  it  was  the
prevailing  party  under  Rule  68  because  its  pretrial  offer
substantially  exceeded  the amount  of  the  judgment  Pagenkopf
recovered  against  Chatham at trial.  After  denying  Pagenkopfs
request  to  compare the pretrial offer to the entire amount  the
jury  awarded  against  Chatham and Dilbeck   not  just  Chathams
proportionate share of the award  the court declared  Chatham  to
be  the  prevailing party and directed Pagenkopf to pay  Chathams
post-offer costs and attorneys fees, an amount totaling more than
$50,000.2
          Chatham  also  moved  under  AS  09.17.070  to   reduce
Pagenkopfs  judgment by amounts that Pagenkopf had received  from
his  health  insurance policy.  The superior  court  denied  this
motion,  ruling  that applying AS 09.17.070  would  not  actually
reduce  Pagenkopfs  judgment  because  his  attorneys  fees   and
payments  for the insurance exceeded the amount of the  insurance
benefits he received.
          Pagenkopf  separately moved for an award of prejudgment
          interest against Dilbeck, contending that the interest should be
calculated  from the date Dilbeck and his insurer first  received
notice of a potential claim  several days after the February  24,
2001  accident.   The trial court granted Pagenkopfs  motion  for
pretrial  interest but ordered the interest to run from the  date
Dilbeck received service of Chathams third-party complaint  April
2, 2002.
          Pagenkopf, Dilbeck, and Chatham now appeal, challenging
various aspects of the final judgment.
III. DISCUSSION
     A.   Rule 68 Claims
          
          Pagenkopf challenges the superior courts order awarding
attorneys fees to Chatham under Civil Rule 68.  Rule 68 allows  a
party  to  make an offer of judgment [a]t any time more  than  10
days  before the trial begins.3  If the judgment finally rendered
is  at least five percent less favorable to the offeree than  the
offer, the rule provides that the offeree shall pay all costs  as
allowed under the Civil Rules and shall pay [a percentage of the]
reasonable actual attorney fees incurred by the offeror from  the
date the offer was made.4
          Here, Chatham unsuccessfully offered Pagenkopf $525,000
before  trial  in  complete satisfaction of  his  claims  against
Chatham:
          Pursuant  to  Alaska Civil  Rule  68  and  AS
          09.30.065, defendants Chatham Electric,  Inc.
          and  Nick Goddard offer to allow judgment  in
          favor of the plaintiff in the total amount of
          $525,000   in   complete   satisfaction    of
          plaintiffs  claims against  Chatham  Electric
          and Nick Goddard in this matter.  This amount
          offered  includes  all prejudgment  interest,
          attorneys fees and costs incurred to the date
          of  this offer to which the plaintiff may  be
          entitled under Alaska law.  Nothing  in  this
          offer should be deemed an admission.
The  jury  found Chatham and Dilbeck liable for damages  totaling
$545,064,  allocating  $195,664 of that  amount  to  Chatham  and
$349,400  to  Dilbeck.   The  superior  court  compared  Chathams
$195,664  share  of  the total award to its  pretrial  offer  and
determined that the jurys award was  more than five percent  less
favorable  to  Pagenkopf than Chathams offer.   Accordingly,  the
court found Chatham to be the prevailing party under Rule 68  and
ordered Pagenkopf to pay Chathams post-offer costs and fees.
          Pagenkopf  argues  that the superior  court  mistakenly
compared Chathams pretrial offer to its share of the jurys  total
award  to  Pagenkopf.  He maintains that the proposed  settlement
with  Chatham  would have eliminated Chathams  third-party  claim
against Dilbeck; because he had claimed all of his damages in his
complaint  against Chatham and had never directly  sued  Dilbeck,
Pagenkopf  further  maintains that dismissal of  the  third-party
complaint  would  have  left him with no claim  against  Dilbeck.
Since  the deadline for amending his pleadings had passed by  the
time  Chatham offered to settle, Pagenkopf points out, he had  no
          further right to file a direct claim against Dilbeck.  In
Pagenkopfs  view,  then,  Chathams  pretrial  offer  of  judgment
effectively  asked  him  to resolve his entire  claim,  not  just
Chathams  share  of the liability.  He argues that,  under  these
circumstances,  the  superior  court  should  have  compared  the
pretrial  offer to his total award from the jury  an amount  that
exceeded  the pretrial offer and thus failed to justify an  award
of fees under Rule 68.
          Alternatively, Pagenkopf insists that Chathams offer of
judgment  was  too ambiguous to support an award under  Rule  68.
Given Chathams silence concerning the effect its offer might have
had  on the third-party claim against Dilbeck, Pagenkopf contends
that the offer generated too much uncertainty to support Chathams
motion for Rule 68 fees.
          In  response, Chatham defends the superior courts  Rule
68  award.   It insists that its pretrial offer did not  preclude
Pagenkopf from pursuing a direct claim against Dilbeck,  that  it
met  all  the  requirements of Rule 68, and that it unambiguously
sought  to  resolve  only  Pagenkopfs  liability  claims  against
Chatham.
          We  have  previously  observed   that   [a]n  offer  of
judgment  and acceptance thereof is a contract. 5  We  have  also
adopted  the  view that [t]he interpretation of a contract  is  a
question of law to which we apply our independent judgment.6  The
interpretation of Rule 68 also presents questions of law that  we
subject  to  independent  review.7   In  determining  whether   a
particular  offer complies with Rule 68, we must view the  offers
terms  as a reasonable offeree would have understood them at  the
time the offer was made.8
            Here,  Pagenkopf claims that Chathams offer  suffered
from  impermissible ambiguity; he also asserts that the  proposed
settlement  raised  apportionment problems by affecting  Chathams
third-party claim against Dilbeck.  In applying Rule 68, we  have
consistently  emphasized  that  an  enforceable  offer  must   be
unambiguous:
          One  of the protections afforded by the Civil
          Rule  68  procedure  is  that  the  offer  of
          judgment  must be definite.  This  protection
          is  designed  to avoid post-trial  litigation
          concerning  the  meaning of  the  offer.   In
          keeping with this purpose, we have recognized
          that,  to  comply with Rule 68, an  offer  of
          judgment must specify a definite sum and must
          be  unconditional.  Because this  requirement
          basically  concerns  the specificity  of  the
          offer  rather  than  its communication  of  a
          monetary  amount, however, we have recognized
          that  nonmonetary provisions in an  offer  of
          judgment can also be valid, so long  as  they
          are unambiguous and unconditional.[9]
          In  Johns  Heating  Service  v.  Lamb  we  described  a
specific,  two-factor approach for determining  whether  pretrial
offers are enforceable under Rule 68 in cases involving offers to
or  from multiple parties.10  The first factor requires the offer
          to be unambiguous in the sense that it includes  all the
relationships among the parties and their conflicting claims.  11
In  other words, the offer must indicate that  all claims between
the parties would be resolved if the offer were accepted. 12  The
second  factor requires the court to consider whether  the  offer
presents any apportionment difficulties.13
          With  this  framework in mind, we consider whether  the
offer disputed here could support an award under Rule 68.
          1.   Ambiguity
          In  asserting  that  Chathams  offer  of  judgment  was
ambiguous, Pagenkopf contends that Chatham failed to clarify  the
consequences of accepting its offer. Pagenkopf focuses his theory
of  ambiguity  on  the circumstances surrounding  Chathams  offer
rather  than  on  the  offer itself.  Because  Dilbeck  evidently
agreed  to  contribute $150,000 to Chathams  settlement  payment,
Pagenkopf  claims,  the  offer  of judgment,  although  nominally
extended  only  by Chatham, seems to have been a joint  offer  by
Dilbeck and Chatham.
          According  to  Pagenkopf,  this  ambiguity  created   a
dilemma:  because  his complaint asserted a  claim  only  against
Chatham  and,  in  turn, Dilbecks liability  turned  entirely  on
Chathams   third-party  complaint  for  equitable  apportionment,
Pagenkopf  had no way of ascertaining what effect Chathams  offer
might have on Dilbecks potential liability.  Pagenkopf points out
that  after Chatham extended its offer, Dilbeck acknowledged  his
agreement  to contribute to the proposed settlement payment;  and
Chatham  did  not  deny the agreement.  Pagenkopf  insists  that,
given   the   offers  silence  on  this  point,  the  uncertainty
surrounding  Chathams unexplained arrangement with  Dilbeck  made
its offer ambiguous, precluding the court from using the offer as
a  basis  for  Rule 68 fees.  If he had accepted Chathams  offer,
Pagenkopf  reasons,  Dilbeck would surely have  argued  that  the
settlement  with  Chatham  resolved its  equitable  apportionment
claim as well, even though the offer made no mention of the third-
party claim.
          We  disagree with Pagenkopfs theory of ambiguity.   The
theory  is  flawed  because it relies on uncertain  circumstances
external to the offer that concern the offers collateral  effects
rather  than  the  meaning of its terms.  As we  explain  further
below,  the  uncertainty  surrounding  Dilbecks  apparent   side-
agreement  with  Chatham  creates  apportionment  problems   that
implicate  the  second part of the Johns Heating test;  but  this
uncertainty does not make the offer itself ambiguous.
          The   terms   of   Chathams  offer  are  definite   and
unequivocal.   By offer[ing] to allow judgment in  favor  of  the
plaintiff   in   the  total  amount  of  $525,000   in   complete
satisfaction  of plaintiffs claims against Chatham  Electric  and
Nick   Goddard  in  this  matter,  Chathams  offer  unequivocally
proposed  to  resolve only the portion of damages that  Pagenkopf
was   entitled  to  recover  from  Chatham.   Under  Alaska  law,
Pagenkopf  could recover damages from Chatham only to the  extent
of Chathams proportionate share of the fault.14  Chathams proposal
thus  met  the threshold criteria for an unambiguous offer:  [T]o
comply with Rule 68, an offer of judgment must specify a definite
          sum and must be unconditional. 15  Moreover, because the offer
incorporated  no  nonmonetary conditions, it  left  no  room  for
ambiguity as to nonmonetary terms.  The offer also met the  first
part of the Johns Heating test governing multiple-litigant cases,
since   it  identified  the  parties  included  in  the  proposed
agreement  and  clearly indicated all claims between the  parties
would  be resolved if the offer were accepted. 16   In short,  we
conclude  that  Chathams offer met all relevant criteria  for  an
unambiguous offer.
          2.   Apportionment issues
          Although    Chathams   offer   was   unambiguous,    it
nevertheless  confronted  Pagenkopf with  apportionment  problems
that   placed  the  implications  of  accepting  the   offer   in
considerable  doubt.  As already mentioned, in Johns  Heating  we
adopted  the  position that an unapportioned  pretrial  offer  of
judgment involving multiple parties will not trigger Rule  68  if
the offer creates apportionment difficulties.17  We must initially
consider whether the Johns Heating test applies here.
          The  procedural setting in Johns Heating differed  from
the situation at issue in this case.  In Johns Heating, a married
couple,  the  Lambs,  sued  Johns Heating  Service  for  personal
injuries caused by negligent services performed by Johns Heating.18
Before trial, the Lambs sent Johns Heating an unapportioned joint
offer  of  judgment for $750,000; after Johns Heating  failed  to
accept the offer, the jury awarded damages to the Lambs exceeding
the  pretrial offer, and the trial court applied Rule  68.19   On
appeal,  Johns Heating challenged this ruling, citing Brinkerhoff
v.  Swearingen  Aviation Corp.20 for the proposition  that  joint
offers  of  judgment present apportionment issues that make  them
inappropriate for the penalty provision of Civil Rule  68.21   We
distinguished the Lambs situation, which involved an  offer  made
by  joint offerors to a single offeree, from the one addressed in
Brinkerhoff,  which involved an unapportioned  offer  made  by  a
single  offeror  to  joint offerees.22  We  emphasized  that  the
Brinkerhoff  situation invariably creates problems: Apportionment
difficulties are intrinsic to cases involving unapportioned joint
offers because the offerees must agree as to how proceeds are  to
be  divided  (or  how the responsibility for  payment  should  be
divided when the offerees are defendants).23  By contrast, because
we  found no comparable intrinsic danger in the Lambs joint offer
of  judgment  to  a single offeree, we adopted  a  more  flexible
approach   that  called  for  an  individualized  assessment   to
determine if apportionment difficulties actually existed.24
          We  drew  this approach from Chief Justice  Rabinowitzs
dispositional but non-precedential opinion in Taylor Construction
Services,  Inc.  v.  URS  Co.25  Our  opinion  in  Johns  Heating
described the approach as follows:
          Chief  Justice  Rabinowitz,  writing  for  an
          equally divided court, identified two factors
          that should be analyzed in deciding whether a
          joint  offer should trigger Rule 68 penalties
          in  the  context of an offer  made  by  joint
          offerors to a single offeree.  First, if  the
          offer  was inclusive of all the relationships
          among   the  parties  and  their  conflicting
          claims,   and  second,  if  no  apportionment
          difficulty  existed,  the  unaccepted   offer
          could  trigger Rule 68 penalties.   We  adopt
          the  Taylor  dispositional opinions  approach
          today.[26]
          Applying  this approach to the facts in Johns  Heating,
we  concluded that the Lambs pretrial offer was a valid  Rule  68
offer:  First, there is no question that the unapportioned  offer
was  inclusive of all relationships among the parties  and  their
conflicting  claims.  That is, had the offer been  accepted,  all
claims between the parties would have been resolved.  Second,  no
apportionment  difficulties  existed  since  the  offeree,  Johns
Heating, was a single entity.27
          The  procedural  situation in Pagenkopfs  case  differs
markedly from the situation at issue in Johns Heating.  In  Johns
Heating  we  applied Taylors two-factor approach  to  assess  the
validity  of an unapportioned joint offer made by two plaintiffs,
a  married couple, to one defendant.  By contrast, the offer here
came from an individual defendant, Chatham,28 and was extended to
an  individual plaintiff, Pagenkopf.  Nominally, then, it was not
a  joint  offer  purporting to resolve  the  rights  of  multiple
parties;   yet  functionally,  the  offer  created  apportionment
difficulties  involving  another  party,  Dilbeck.    The   offer
neglected  to  address  Chathams  pending  third-party  equitable
apportionment  claim against Dilbeck; at the same  time,  Chatham
had  apparently failed to disclose a side-agreement  calling  for
Dilbeck to contribute to Chathams proposed settlement payment.
            Although this procedural setting can be distinguished
from  the  one  in  Johns  Heating, the offer  of  judgment  here
nonetheless   raises  serious  concerns  grounded  in   potential
difficulties  arising  from the offers effect  on  other  parties
whose  share of the damages remained unapportioned.   We  see  no
reason  why  the  approach articulated in Taylor and  adopted  in
Johns  Heating  should not apply in determining whether  Chathams
pretrial  settlement offer was a valid Rule 68 offer of  judgment
in  this  context.          Given Alaskas system  of  comparative
fault,  Chathams offer raised unique apportionment  difficulties.
In  cases  involving  the fault of more than one  person,  unless
otherwise agreed by all parties, AS 09.17.080 requires the  court
to  instruct the jury to allocate a percentage of the total fault
to  each  claimant, defendant, third-party defendant, person  who
has been released from liability, or other person responsible for
the damages.29  We have interpreted this provision to require that
third parties must be joined for purposes of allocating fault and
liability, or not at all.30  But we have also recognized that  AS
09.17.080  itself establishes no . . . procedure to  allow  named
defendants  to allocate fault to potentially responsible  parties
that  the plaintiff ha[s] not sued.31  We discussed this omission
in  Benner  v.  Wichman and concluded that, absent  any  explicit
statutory  procedure, defendants must be allowed to  file  third-
party   claims   for   equitable  apportionment   against   other
potentially responsible parties.32
          After  Benner was decided, its holding was  implemented
          by a provision in Alaskas civil rules that established the
procedure  that defendants could use for equitable  apportionment
of  damages to third parties who had no direct liability  to  the
defendant  but  were potentially responsible to the  plaintiff.33
Civil   Rule   14(c)  now  explicitly  provides   for   equitable
apportionment through third-party claims. Under this provision, a
defendant  may  add as a third-party defendant any  person  whose
fault  may  have  been  a  cause of the damages  claimed  by  the
plaintiff; if the third-party claim succeeds, then the court  may
enter  judgment in favor of the plaintiff in accordance with  the
third-party defendants respective percentage of fault, regardless
of  whether the plaintiff has asserted a direct claim against the
third-party defendant.34
          Since  promulgating Rule 14(c), we have  described  its
equitable  apportionment procedure as  a  cause  of  action  that
stands  apart from the plaintiffs claim against the defendant   a
mechanism   for  spreading  damages  that  bears  a  far   closer
relationship to [a traditional contribution action] than  to  the
underlying tort action[].35  But in addition to recognizing  that
equitable  apportionment claims are distinct actions designed  to
help  defendants apportion liability and damages,  we  have  also
emphasized   that  these  claims  provide  a  vital  benefit   to
plaintiffs  by  vindicating not just the right of  defendants  to
have damages apportioned in accordance with their fault, but  the
commensurate duty of responsible third parties to pay plaintiffs.36
          Thus, Rule 14(c)s provision directing that judgments on
defendants third-party claims are to be entered in favor  of  the
plaintiff  rather than in favor of the named defendant   plays  a
vital  role  in harmonizing the defendants benefit  of  spreading
damages  according to fault with the plaintiffs right to  recover
full  proportionate  payment from all  responsible  parties.   By
taking advantage of Rule 14(c)s equitable remedy allowing damages
to  be  apportioned fairly among third parties, the defendant  in
effect consents to let the apportioned damages inure directly  to
the plaintiffs benefit.  In other words, the defendant undertakes
the  burden of proving the third-party claim; but the undertaking
results  in  a  twofold benefit: it provides  a  benefit  to  the
defendant   in  the  form  of  reduced  damages  reflecting   the
defendants proportionate fault and to the plaintiff in  the  form
of a third-party judgment ensuring full payment.
          Chathams  offer  in  this case fundamentally  distorted
Rule  14(c)s carefully drawn balance of benefits and  burden;  if
accepted,   the  offer  promised  to  leave  Pagenkopf   with   a
substantial apportionment burden not contemplated by the rule.
          As  already  pointed  out, Chathams  nominal  offer  to
settle   only  its  proportionate  share  of  Pagenkopfs   claims
evidently  masked an undisclosed arrangement calling for  Dilbeck
or Dilbecks insurer to contribute to Chathams settlement payment.
This  arrangement threatened to undercut Pagenkopfs  right  to  a
Rule 14(c) judgment for whatever amount Chatham might be able  to
recover  against  Dilbeck by pursuing the third-party  complaint.
As noted above, Rule 14(c)s procedure for equitable apportionment
was  not designed as a mechanism to allow a named defendant  like
Chatham  to reduce its own fair share of the damages by  claiming
          and keeping contributions from a responsible third-party
defendant like Dilbeck.
          At  the time of its offer, Chatham had evidently agreed
upon a separate arrangement with Dilbeck or Dilbecks insurer that
might have blocked or diminished Pagenkopfs right, under Chathams
third-party  claim, to recover a direct judgment against  Dilbeck
for  his  proportionate  share of the  fault.   Because  of  this
unrevealed  side-agreement, Chathams offer created  apportionment
problems  that made it fundamentally unfair to draw a  comparison
between  the lump sum Chatham offered before trial to the  amount
the   jury  ultimately  awarded  against  Chatham  alone.    This
unfairness  flows  from  two sources: the  lump  sum  offered  by
Chatham  before trial carried an unknowable cost by  jeopardizing
Pagenkopfs  procedural right to recover apportioned damages  from
Dilbeck under Chathams third-party claim; and the damages awarded
by  the  jury against Chatham for its share of the fault excluded
the  apportioned damages Pagenkopf gained by holding  Chatham  to
its original decision to pursue a third-party claim.
          A  similar apportionment difficulty would have  existed
even without any side-agreement for contributions from Dilbeck or
Dilbecks insurer.  As we have seen, by enabling Chatham  to  file
an equitable apportionment claim against Dilbeck, Rule 14(c) gave
Chatham  the  significant  advantage of  reducing  its  potential
damages  by apportioning fault and damages to Dilbeck; in  return
for this benefit, Chatham assumed the burden of proving its third-
party  claim against Dilbeck  a quid pro quo designed to  benefit
Pagenkopf as well as Chatham.
          Without Chathams third-party claim, Pagenkopfs decision
not  to  sue Dilbeck would have left the parties in agreement  to
exclude  Dilbeck  from the lawsuit.  Alaska Statute  09.17.080(a)
allows  potentially responsible parties to be excluded  from  the
jurys  apportionment  of fault and damages  when  agreed  by  all
parties  participating in the action.  So if Chatham had  elected
at  the  outset  not to proceed against Dilbeck, Pagenkopf  could
have  sought to recover all of his alleged damages directly  from
Chatham,  and  Chatham  would have been unable  to  allocate  any
portion of the fault or damages to anyone other than Pagenkopf.37
In  other words, Chatham was able to divide Pagenkopfs claim  and
shift  liability  to Dilbeck only by undertaking  the  burden  of
attempting to prove Dilbecks fault in its third-party complaint.
          Yet  by later proposing a settlement covering only  its
limited portion of the freshly divided claim, Chatham created  an
obvious   problem  from  Pagenkopfs  perspective:  the   proposed
settlement would have dismissed Chatham from the case completely,
thus  leaving  no  basis  for pursuit of  the  third-party  claim
between Chatham and Dilbeck.38  This offer left Pagenkopf with  a
lose-lose  proposition.   On the one hand,  if  he  settled  with
Chatham  for  part of his losses and then sought  to  pursue  the
remainder from Dilbeck, Pagenkopf would have had to shoulder  the
burden  of  proving Dilbecks fault  the very burden that  Chatham
had   elected  to  assume  in  return  for  the  opportunity   of
apportioning  part  of the damages to Dilbeck;  in  addition,  of
course,  Pagenkopf  would have had to assume the  risk  of  being
blocked from pursuing a direct claim against Dilbeck because,  by
          the time Chatham made its offer, the deadline for amending the
pleadings had already passed.  On the other hand, by declining to
settle  so  that  he  could preserve his right  to  benefit  from
Chathams equitable apportionment claim against Dilbeck, Pagenkopf
exposed  himself  to  the prospect of a Rule 68  claim  demanding
payment  of Chathams fees for performing the work of proving  its
claim  against Dilbeck  again, the very burden that  Chatham  had
voluntarily  undertaken as a necessary cost of apportioning  part
of its damages to Dilbeck.
          Chatham has offered no justification that would explain
why  it  should be allowed to use Rule 68 as a lever  to  push  a
settlement  that would have shifted to Pagenkopf Chathams  freely
undertaken  burden  of  proving Dilbecks  fault,  while  offering
Pagenkopf nothing for his cost of assuming that burden.  Like the
prospect of an undisclosed side-agreement calling for Dilbeck  to
contribute to the settlement, this apportionment difficulty added
incalculable  costs  and  risks to the lump-sum  payment  Chatham
offered for its limited share of Pagenkopfs damages.  Thus,  both
difficulties preclude a fair comparison between the amount of the
lump-sum  offer  and  the amount Pagenkopf later  recovered  from
Chatham  at trial.  By passing up the offer, Pagenkopf undeniably
obtained  more from Chatham than just the amount awarded  against
Chatham at trial.
          We   therefore   conclude  that   these   apportionment
difficulties prevented Chathams offer from triggering an award of
fees  and  costs under Rule 68.  In so ruling we do  not  suggest
that  a  voluntary settlement incorporating Chathams offer  would
have  been invalid or unenforceable; that issue is not before  us
here,  and  we  express no view on it.  We  hold  only  that  for
purposes of Rule 68s fee-shifting provisions, Chathams offer  did
not  present  a  fair  basis for comparing  the  offers  monetary
provision  to  the  amount Pagenkopf actually  recovered  against
Chatham  in  the  judgment.   Rule 68 is  designed  to  encourage
reasonable settlements and avoid protracted litigation.39   These
aims  can  only  be  attained when the offer advanced  is  clear,
unambiguous,  and  does not saddle the offeree with  unfathomable
complexities  relating to apportionment.  Because  the  offer  in
this  case  created  unfair apportionment difficulties,  we  must
vacate the superior courts order awarding Rule 68 costs and  fees
to Chatham.
     B.   Judgment-Related Claims
          Pagenkopf  and  Chatham  both  appeal  certain   issues
involving  calculations of the final judgment.  Pagenkopf  argues
that  he  was entitled to prejudgment interest from Dilbeck  from
the  time  Dilbeck  and his insurance carrier  had  notice  of  a
potential claim, shortly after the accident.  Chatham argues that
the  trial court erred in denying its post-trial motion to reduce
the  jury  award under AS 09.17.070 by the amount  of  Pagenkopfs
nonsubrogated collateral benefits.
          1.   Pagenkopfs  claim  for prejudgment  interest  from
               Dilbeck
               
          Determining the starting date for prejudgment  interest
presents  a  question  of  law that we resolve  by  applying  our
          independent judgment.40  We review interpretations of statutes de
novo,  adopting the rule of law that is most persuasive in  light
of precedent, reason, and policy.41
          Pagenkopf  argues  that  the superior  court  erred  in
ruling  that  prejudgment interest should accrue  from  April  2,
2002,  the  date  that the third-party complaint  was  served  on
Dilbeck.   Pagenkopf  claims that the court should  have  ordered
prejudgment interest to begin much sooner  within several days of
the  accident,  when Dilbeck and his insurer first  became  aware
that  a  claim  was  likely to be filed.  Dilbeck  responds  that
Pagenkopf  is  not  entitled to interest from the  earlier  date,
since  he failed to give proper written notice of a claim against
Dilbeck as required by AS 09.30.070(b).
          The relevant portion of AS 09.30.070(b) provides:
          Except  when the court finds that the parties
          have  agreed otherwise and except as provided
          by   AS  45.05.111(d),  prejudgment  interest
          accrues from the day process is served on the
          defendant  or the day the defendant  received
          written  notification  that  an  injury   has
          occurred  and  that a claim  may  be  brought
          against   the  defendant  for  that   injury,
          whichever    is    earlier.    The    written
          notification must be of a nature  that  would
          lead a prudent person to believe that a claim
          will be made against the person receiving the
          notification, for personal injury, death,  or
          damage to property.
          Under  this provision, a potential defendant  does  not
need  to receive notice of an actual claim, but rather only needs
to  receive notice that a claim may be brought.42  In  Lloyds  v.
Fulton  we  stated that AS 09.30.070(b) establishes an  objective
test providing that interest begins to accrue upon written notice
that would lead a prudent person to believe that a claim will  be
made  against the person receiving the notification. 43    Direct
notice from the potential claimant is not required.44
          In  McConkey v. Hart we further held that,  despite  AS
09.30.070(b)s express reference to written notice, the  statutory
requirement of written notice may be satisfied by proof of actual
notice.45   While Dilbeck argues that there is no  evidence  that
Pagenkopf  ever  intended  to make a direct  claim  against  him,
AS  09.30.070(b)  does  not require the  defendant  to  know  the
claimants  identity; it only requires knowledge that a claim  may
be brought against the defendant for th[e] injury.
          Dilbecks  actions  in the immediate  aftermath  of  the
accident  appear to show that he actually believed a claim  might
be  brought  against him.46  He was present during the  accident,
realized  that  Pagenkopf  was injured,  and  promptly  sent  his
insurer a written Notice of Incident form describing the accident
in  a  manner  that  ascribed negligence  to  Chatham.   Dilbecks
insurance agent notified the insurance carrier that there was  no
claim as of yet and added that Dilbeck believes there may not  be
one.  At a minimum, Dilbecks optimistic belief reveals his actual
knowledge that a claim might be filed; and his hopeful subjective
          view that there may not be one would hardly preclude a finding
that,  objectively viewed, the information Dilbeck actually  knew
would  lead  a prudent person to believe that a claim [would]  be
made against him.47
          The  record  thus  contains reliable proof  capable  of
supporting  a  finding  that Dilbeck had  actual  notice  of  the
potential  claim  soon after Pagenkopf was  injured.48   Moreover
Dilbecks  ensuing communications with Chathams insurance  carrier
and  his  later  participation  in  mediation  with  Chatham  and
Pagenkopf would seem to establish the existence of actual  notice
by  the  time  the mediation occurred  still well before  he  was
served   with   Chathams  third-party  complaint.   Under   these
circumstances   we  hold  that  AS  09.30.070(b)s  written-notice
requirement  does  not control in this case and that  prejudgment
interest began to accrue no later than the date of the mediation.
Because  an  even earlier starting point is arguable,  the  exact
date  must  be  determined in the first instance by the  superior
court on remand.
          2.   Chathams  claim that the court erred in addressing
               Pagenkopfs nonsubrogated collateral benefits
               
          Chatham  contends  that  the trial  court  should  have
reduced  the  jury  award under AS 09.17.070  by  the  amount  of
Pagenkopfs nonsubrogated collateral benefits.  Chatham attributes
the  trial courts refusal to allow a reduction to three  separate
errors,  complaining  that  the court  miscalculated  the  proper
amount  of  the  offset by (1) using Pagenkopfs actual  attorneys
fees  instead  of the fees he would have paid if he had  accepted
Chathams  pretrial  offer; (2) failing to reduce  the  amount  of
Pagenkopfs  out-of-pocket medical expenses by his  percentage  of
fault;  and  (3)  including  certain  impermissible  health  club
expenses  in  its  calculation  of  Pagenkopfs  costs.    Chatham
separately faults the trial court for failing to award to Chatham
costs it incurred from the start of the lawsuit rather than  from
the date of its pretrial offer of judgment.
          Because  our decision vacating Chathams Rule  68  award
will require the superior court to redetermine all issues of fees
and  costs between Chatham and Pagenkopf and to enter a  modified
judgment  reflecting its rulings on remand, we conclude that  the
various  calculational errors asserted by Chatham  are  moot  and
need not be decided.
     C.   Jury Instruction Claim
          Dilbeck argues that the jury used an incorrect standard
of negligence in finding that he acted negligently and was partly
liable  for Pagenkopfs injuries. Specifically, Dilbeck points  to
Jury Instruction 22, which referred to an Occupational Safety and
Health  Administration (OSHA) regulation directing that [l]adders
shall  not be placed in front of doors opening toward the  ladder
unless  the  door is blocked upon, locked or guarded.49   Dilbeck
asserts  that  the language of Instruction 22 referring  to  this
directive erroneously suggested that if Dilbeck failed to  comply
with  the  OSHA  regulation, his noncompliance  would  amount  to
negligence per se.50
          Jury Instruction 22 stated:
               There  is a workplace safety law of  the
          State of Alaska which provides that:
               Ladders shall not be placed in front  of
          doors  opening toward the ladder  unless  the
          door is blocked upon, locked or guarded.
               Chatham  Electric, Inc. claims that  the
          owner,  Hugh Dilbeck, violated this law.   If
          you  decide that it is more likely true  than
          not  true that Hugh Dilbeck violated any part
          of  this  law  and that the violation  was  a
          legal  cause  of the accident, then  you  may
          find Hugh Dilbeck negligent.
               If  you  decide it is more  likely  true
          than  not true that Hugh Dilbeck obeyed  this
          law,   you   may  still  find  Hugh   Dilbeck
          negligent  if  you decide that  a  reasonable
          person  under circumstances similar to  those
          shown   by  the  evidence  would  have  taken
          precautions in addition to those required  by
          the statute.
               Instructions  on the verdict  form  will
          tell  you what to do if you decide that  Hugh
          Dilbeck was negligent.
          
          Dilbeck  acknowledges that he did not comply  with  the
OSHA  regulation.  But  he claims that because  Pagenkopf  was  a
volunteer and not a shop employee when the accident occurred, the
regulation did not apply to Dilbecks conduct.  He argues that  by
referring  to  the regulation and suggesting that it  applied  to
him,  Instruction  22  unfairly  condemned  him  to  being  found
negligent per se for violating an OSHA requirement that he had no
legal duty to obey.
          Dilbeck  also  faults  the  instruction  for  including
language telling the jury how to proceed if it found that Dilbeck
had  complied with the OSHA requirement.  According  to  Dilbeck,
the  court  mistakenly  drew this language  from  a  pattern-jury
instruction  dealing  with the defense  of  compliance.   Dilbeck
insists  that  this  instruction is meant to  be  given  only  in
negligence  per  se  cases  where the defense  of  compliance  is
actually  raised.   Dilbeck emphasizes that he never  asserted  a
defense based on compliance  he simply took the position that the
OSHA  regulation  did  not  apply.   Given  these  circumstances,
Dilbeck reasons that the instruction virtually directed a verdict
against him by suggesting that he had claimed compliance and  was
required to prove his defense.  In Dilbecks view, the instruction
held  him to an impossibly high standard  that would have allowed
the   jury  to  absolve  him  of  negligence  only  if  it  found
[c]ompliance with the statute and more.
          In  our  view,  Dilbeck misreads  Instruction  22.   To
explain this conclusion, we begin with a brief review of our case
law  on negligence per se.  We have recognized that the violation
of  a regulation or statute amounts to negligence as a matter  of
law   that  is, negligence per se  when the statute or regulation
at  issue defines a standard of conduct that a reasonable  person
is  expected to follow under the circumstances presented.51   For
purposes  of determining whether a particular law sets a standard
that  justifies applying negligence per se, we have  adopted  the
four  criteria set out in section 286 of the Restatement (Second)
of Torts.52  When these criteria are met, the court instructs the
jury  on negligence per se, informing jurors that if they find  a
violation, they must find the defendant negligent.53
          But  we  have  also recognized that trial  courts  have
discretion  to  treat  the requirements  of  a  law  as  relevant
evidence  of  negligence  even if  the  law  fails  to  meet  the
Restatements criteria for applying negligence per se.54  In  such
cases, we have held, if the trial court deems a provision of  law
relevant to the standard-of-care inquiry, the court is authorized
to  permit  the  introduction of testimony showing  violation  as
evidence  of  negligence and to instruct the  jury  that  it  may
consider a violation of the law to be evidence of negligence.55
          The Alaska Civil Pattern Jury Instructions reflect this
distinction between a regulations use to establish negligence per
se  and  its use as mere evidence to help the jury decide how  to
assess  the  conduct  at  issue under  the  general  standard  of
reasonable  care.   Pattern  Instruction  03.04A  addresses   the
stringent requirement of negligence per se;56 Pattern Instruction
03.04B   deals   with  the  more  lenient  evidence-of-negligence
concept;57 and Pattern Instruction 03.04C informs the jury how to
proceed  if it finds that the defendant has complied with  a  law
that applies to the case.58
          As   can  be  seen,  Instruction  22,  the  instruction
disputed  here, does not use the language of Pattern  Instruction
03.04A,  Alaskas  pattern  instruction  on  negligence  per   se.
Instead,  by  stating  that if the jury found  that  Dilbeck  had
violated  the  OSHA  regulation, then you may find  Hugh  Dilbeck
negligent,  Instruction  22  mirrored  the  language  of  Pattern
Instruction 03.04B  the instruction dealing with use of a law  as
evidence  of  negligence.  As the superior court aptly  noted  in
response to Dilbecks objection to the instruction at trial, I did
not  say that you shall find Hugh Dilbeck negligent, but that you
may.  I think that gives you the opportunity to argue.
          Dilbeck does correctly observe that Instruction 22 also
incorporates language from Pattern Jury Instruction 03.04C, which
tells  the  jury how to proceed when a defendant claims  to  have
complied  with  a  law  that applies to the  case.   Yet  Dilbeck
mistakenly suggests that Pattern Instruction 03.04C is limited to
cases involving negligence per se.  By its express terms, Pattern
Instruction 03.04C covers all situations  in which [t]here  is  a
law  .  .  . that applies to this case and an issue of compliance
might  be raised.59  Nothing in the instructions title or wording
confines  its use to cases involving compliance with a  law  that
applies  under the doctrine of negligence per se; and nothing  in
the  instruction implies that it may not also be  used  in  cases
involving  laws  that apply under the more flexible  evidence-of-
negligence theory.
          Nor  do  we  read either Pattern Instruction 03.04C  or
Instruction  22  as  given  here  to  imply  that  a  defense  of
compliance has actually been raised.  Similarly, we do  not  read
          these instructions as suggesting that the defendant must bear the
burden of proving compliance and must rule out other grounds  for
finding  negligence  as well.  In our view,  a  reasonable  juror
reading  Instruction 22 in a commonsense manner would  understand
it  to  say only that if the defendant claims compliance with  an
applicable law and the evidence establishes that claim, the  jury
is  not  precluded from finding negligence on other grounds  when
the  evidence  supports such a finding.   While  this  aspect  of
Instruction  22  may have been superfluous  and  arguably  should
have  been  omitted   because  Dilbeck  did  not  actually  claim
compliance,  we  fail to see any reasonable likelihood  that  its
unnecessary   inclusion  resulted  in  the  risk  of  substantial
prejudice to Dilbeck.60  Accordingly, we find no reversible error
in Instruction 22.61
IV.  CONCLUSION
          For  the foregoing reasons we REVERSE the award of Rule
68   attorneys  fees  to  Chatham  and  also  REVERSE  the  order
establishing  that prejudgment interest on Dilbecks claim  begins
to  run  on the date Dilbeck received service of Chathams  third-
party  complaint.   We  REMAND for entry of a  modified  judgment
conforming to our ruling on these points.  We AFFIRM the superior
courts judgment in all other respects.
_______________________________
     1     Chatham actually made two identical offers of judgment
in  March  2003   one  on March 11 and the  other  on  March  28.
Because  the second offer simply renewed the first, we  refer  to
them as a single offer.

     2     The  trial  court  also denied Pagenkopfs  request  to
allocate  part  of  Chathams costs to  Dilbeck  for  purposes  of
applying  Rule  68.   This  ruling  did  not  affect  the  courts
prevailing-party determination.

     3    Alaska R. Civ. P. 68(a).

     4    Alaska R. Civ. P. 68(b).

     5     Jaso  v.  McCarthy, 923 P.2d 795,  801  (Alaska  1996)
(quoting Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973)).

     6     Id. (citing Alaska Energy Auth. v. Fairmont Ins.  Co.,
845 P.2d 420, 421 (Alaska 1993)).

     7     Id.  (citing Toney v. Fairbanks N. Star  Borough  Sch.
Dist. Bd. of Educ., 881 P.2d 1112, 1114 (Alaska 1994)).

     8     Thomann  v.  Fouse, 93 P.3d 1048, 1050  (Alaska  2004)
(citing  Bayly,  Martin  & Fay, Inc. of  Alaska  v.  Arctic  Auto
Rental, Inc., 517 P.2d 1406, 1407 (Alaska 1974)).

     9    Id. (internal quotations omitted).

     10    Johns Heating Serv. v. Lamb, 46 P.3d 1024, 1042 (Alaska
2002).

     11     Id. (quoting Taylor Constr. Servs., Inc. v. URS  Co.,
758 P.2d 99, 102 (Alaska 1998)).

     12    Id. at 1042 n.85 (quoting Taylor Constr. Servs., Inc.,
758 P.2d at 102).

     13    Id. at 1042.

     14    See AS 09.17.080(a).

     15     Thomann, 93 P.3d at 1050 (quoting Davis v. Chism, 513
P.2d 475, 481 (Alaska 1973)).

     16     Johns  Heating Serv., 46 P.3d at 1042  n.85  (quoting
Taylor Constr. Servs., Inc., 758 P.2d at 102).

     17    Id. at 1042.

     18    Id. at 1028-29.

     19    Id. at 1029-30.

     20    Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d 937,
943 (Alaska 1983).

     21    Johns Heating Serv., 46 P.3d at 1041-42.

     22    Id. at 1042.

     23    Id. at 1042.

     24    Id.

     25     Taylor Constr. Servs., Inc. v. URS Co., 758 P.2d  99,
102 (Alaska 1988).

     26     Johns  Heating Serv., 46 P.3d at 1042 (citing  Taylor
Constr. Servs., Inc., 758 P.2d at 102).

     27    Id.

     28     Although  the offer in his case literally  sought  to
settle  Pagenkopfs claims against both Chatham Electric  and  its
employee,  Goddard, we assume for purposes of this analysis  that
Chatham  and  Goddard  can be treated as  an  individual  offeror
because  Chatham is vicariously liable on the basis of respondeat
superior for Goddards fault, so that Chathams and Goddards  share
of  the  damages  would  have  been coextensive.   We  note  that
Pagenkopf  has  not  asserted the existence of any  apportionment
difficulties arising from this aspect of the offer.

     29    AS 09.17.080(a)(2).  AS 09.17.080 provides in relevant
part:

          (a)   In all actions involving fault of  more
          than   one   person,  including   third-party
          defendants  and persons who have  settled  or
          otherwise  been released, 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; and
          
          (2)   the percentage of the total fault  that
          is  allocated  to  each claimant,  defendant,
          third-party  defendant, person who  has  been
          released  from  liability,  or  other  person
          responsible for the damages unless the person
          was  identified as a potentially  responsible
          person,  the person is not a person protected
          from  a civil action under AS 09.10.055,  and
          the  parties had a sufficient opportunity  to
          join that person in the action but chose  not
          to; in this paragraph, sufficient opportunity
          to join means the person is
          
          (A)  within the jurisdiction of the court;
          
          (B)  not  precluded from being joined by  law
               or court rule; and
               
          (C)  reasonably locatable.
          
     30     Alaska Gen. Alarm, Inc., v. Grinnell, 1 P.3d 98,  104
(Alaska 2000).

     31    Id. at 101.

     32     See  Benner v. Wichman, 874 P.2d 949, 956-57  (Alaska
1994); see also Alaska Gen. Alarm, Inc., 1 P.3d at 101.

     33    Alaska Gen. Alarm, Inc., 1 P.3d at 101.

     34    Alaska R. Civ. P. 14(c) provides :

               Equitable  Apportionment.  For  purposes
          of  apportioning damages under  AS 09.17.080,
          a  defendant, as a third-party plaintiff, may
          follow the procedure of paragraph (a) to  add
          as  a  third-party defendant any person whose
          fault  may  have been a cause of the  damages
          claimed  by the plaintiff.  Judgment  may  be
          entered  against a third-party  defendant  in
          favor of the plaintiff in accordance with the
          third-party defendants respective  percentage
          of fault, regardless of whether the plaintiff
          has  asserted  a  direct  claim  against  the
          third-party defendant.
          
     35    Alaska Gen. Alarm, Inc., 1 P.3d at 105.

     36    Id. at 102 (citing Benner, 874 P.2d at 956 & n.17).

     37     See  Alaska  Gen.  Alarm,  Inc.,  1  P.3d  at  102-04
(recognizing  that  Civil Rule 14(c)s purpose of  limiting  fault
allocation  to  joined  parties  more  specifically,  to  parties
potentially  liable  to the plaintiff, rather  than  empty  chair
defendants   was  to ensure that fault was accurately  litigated,
and  holding  that  this  purpose  does  not  conflict  with  the
requirements or intent of AS 09.17.080).

     38     See  Restatement (Third) of Torts:  Apportionment  of
Liability  24 cmt. e (2000) (When a settlement is reached between
the  plaintiff and a potentially liable tortfeasor that  releases
only  the settling tortfeasor, the settling tortfeasor ordinarily
should  be  dismissed from the lawsuit or, if no  suit  has  been
initiated, not joined in any action that is subsequently brought.
Dismissal  occurs  even  if contribution claims  have  been  made
against or by the settling tortfeasor.).

     39     Cook  Schuhmann & Groseclose, Inc. v. Brown  &  Root,
Inc.,  116  P.3d  592,  598 (Alaska 2005)  (citing  Fernandes  v.
Portwine, 56 P.3d 1, 8 (Alaska 2002)).

     40     Beaux  v.  Jacob,  30  P.3d  90,  100  (Alaska  2001)
(citations omitted).

     41     Id.  (citing Sosa v. State, 4 P.3d 951,  953  (Alaska
2000)).

     42    AS 09.30.070(b).

     43    Lloyds & Inst. of London Underwriting Cos. v. Fulton, 2
P.3d 1199, 1210 (Alaska 2000) (quoting Himschoot v. Shanley,  908
P.2d 1035, 1042-43 (Alaska 1996)).

     44    Id.

     45     McConkey  v.  Hart, 930 P.2d 402, 404  (Alaska  1996)
(citations omitted).

     46    Cf. Lloyds & Inst. of London Underwriting Cos., 2 P.3d
at  1210-11 ([T]he only relevant question is whether a reasonable
person  in Lloydss position would believe, upon receiving  Walter
Clarks  September  22  letter and Property  Marines  accompanying
memo,  that  the Clarks would claim policy coverage  for  Fultons
injuries.  Our review of the letter and the cover memo  leads  us
to answer this question in the affirmative.) (footnote omitted).

     47    AS 09.30.070(b).

     48     Cf.  McConkey,  930 P.2d at 404-05 (determining  that
written note in doctors file provides reliable proof of notice of
[potential malpractice claim] and when it was given).

     49    8 Alaska Administrative Code (AAC) 61.1010(b), adopting
29 C.F.R.  1910.25(d)(2)(iv).

     50    Assessing the validity of jury instructions presents a
question of law that we review de novo.  Reich v. Cominco Alaska,
Inc.,   56  P.3d  18, 25 (Alaska 2002) (We review  de  novo  jury
instructions  to  which  timely objection  was  made.)  (citation
omitted).   An  error in jury instructions will  be  grounds  for
reversal  only if it caused prejudice.  State, Dept of  Corr.  v.
Johnson, 2 P.3d 56, 59 (Alaska 2000).

     51     See,  e.g., Bachner v. Rich, 554 P.2d 441-42  (Alaska
1976).

     52    Bachner, 554 P.2d at 443 (quoting Restatement (Second)
of Torts  286 (1965)).  Under the Restatements standard, in order
to  serve  as  the standard of care, the purpose of the  relevant
statute must be:

          (a)    to  protect a class of  persons  which
          includes  the one whose interest is  invaded,
          and
          
          (b)  to protect the particular interest which
          is invaded, and
          
          (c)   to  protect that interest  against  the
          kind of harm which has resulted, and
          
          (d)   to  protect that interest  against  the
          particular   hazard  from  which   the   harm
          results.
          
Id.

     53    See Alaska Civil Pattern Jury Instruction 03.04A (Apr.
2006).

     54    Bachner, 554 P.2d at 442.

     55    Id.; Alaska Civil Pattern Jury Instruction 03.04B (Apr.
2006).

     56    Pattern Instruction 03.04A provides:

          VIOLATION OF STATUTE - NEGLIGENCE PER SE
          
               There  is a law of the (State of Alaska)
          (City  of ________) which provides:   (Insert
          applicable     statute,    regulation,     or
          ordinance.)
          
               If  you  decide that it is  more  likely
          true  than  not  true  that  the  (plaintiff)
          (defendant) violated any part of this law and
          that  the violation was a legal cause of  the
          accident, then you are required to  find  the
          (plaintiff) (defendant) negligent [unless you
          also find the violation was excused].
          
     57    Pattern Instruction 03.04B provides:

          VIOLATION OF STATUTE - EVIDENCE OF NEGLIGENCE
          
               There  is a law of the (State of Alaska)
          (City  of  _______) which provides:   (Insert
          applicable     statute,    regulation,     or
          ordinance.)
          
               If  you  decide it is more  likely  true
          than not true that the defendant violated any
          part  of this law, you may consider that fact
          along  with all the other evidence [including
          any  evidence tending to show why the law was
          violated]  in  deciding  whether  under   the
          circumstances of this case the defendant used
          reasonable care.
          
     58    Pattern Instruction 03.04C provides:

          COMPLIANCE WITH STATUTE
          
               There  is a law of the (State of Alaska)
          (City  of _______) that applies to this case.
          It  provides:   (Insert  applicable  statute,
          regulation, or ordinance.)
          
               If  you  decide it is more  likely  true
          than    not   true   that   the   (plaintiff)
          (defendant)  obeyed this law, you  may  still
          decide  (he) (she) is negligent if you decide
          that   a  reasonably  careful  person   under
          circumstances similar to those shown  by  the
          evidence  would  have  taken  precautions  in
          addition  to those required by the  (statute)
          (ordinance).
          
     A  use  note appended to Pattern Instruction 03.04C explains
its  purpose:  This instruction may be used in appropriate  cases
where  it  is claimed that a party was not negligent because  the
party  complied  with  a  statute.  Alaska  Civil  Pattern   Jury
Instructions  With Use Notes and Comments 03.04C (Apr. 2006).

     59     Alaska  Civil Pattern Jury Instruction  03.04C  (Apr.
2006).

     60    We note that the only mention of the instruction to the
jury  during  the  parties final arguments was made  by  Chathams
attorney,  who  argued that Dilbecks failure to comply  with  the
regulation  supported a finding of negligence and refrained  from
suggesting  that  the  violation  established  the  existence  of
negligence as a matter of law:

          The  other instruction concerning Mr. Dilbeck
          is instruction number 22 and that says, There
          is  a  workplace safety law of the  State  of
          Alaska  which  provides that,  and  I  quote,
          Ladders shall not be placed in front of doors
          opening toward the ladder unless the door  is
          blocked  upon,  locked or  guarded.   Chatham
          Electric,   Inc.  claims  the   owner,   Hugh
          Dilbeck,  violated this law.  If  you  decide
          that  it  is more likely true than  not  true
          that  Hugh Dilbeck violated any part of  this
          law  and that the violation was a legal cause
          of  the  accident,  then you  may  find  Hugh
          Dilbeck   negligent.   Well,  there   is   no
          question,  no  question whatsoever  that  Mr.
          Dilbeck  didnt lock the door.  And there  can
          be  no  question  that  the  law  which  says
          ladders shall not be placed in front of doors
          opening toward the ladder unless the door  is
          locked, there is no question that he violated
          that  law.   And  there can be  no  question,
          also,   that   this  accident  wouldnt   have
          happened  had  he obeyed that law.   If  Hugh
          Dilbeck  had  done that, had he  obeyed  that
          law,  none  of  us would be here  today.   So
          again, under instruction number 22, I suggest
          to you, that Mr. Dilbeck is negligent.
          
     61      Dilbeck  has  consistently  argued  that  the   OSHA
regulations did not apply to him in the circumstances surrounding
Pagenkopfs  accident.  Our disposition makes  it  unnecessary  to
address the issue; we have assumed that the contention is correct
without  attempting  to resolve the point.   We  also  note  that
Dilbecks  argument challenging Instruction 22  is  based  on  the
mistaken  premise that it instructed the jury to apply negligence
per  se.  Dilbeck has not separately asserted that using the OSHA
regulation  as  permissive  evidence of negligence  independently
amounted to an abuse of discretion.

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