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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Turner v. Municipality of Anchorage (11/16/2007) sp-6200

Turner v. Municipality of Anchorage (11/16/2007) sp-6200, 171 P3d 180

     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


EVADINE TURNER, )
) Supreme Court No. S- 11958
Appellant, )
) Superior Court No. 3AN-03-7550 CI
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
) No. 6200 - November 16, 2007
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Jeffrey J. Barber, Law  Offices
          of  Steve  Sims,  Anchorage,  for  Appellant.
          Scott  Hendricks Leuning, Clapp Peterson  Van
          Flein  Tiemessen & Thorsness LLC,  Anchorage,
          for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          Evadine  Turner sued the Municipality of Anchorage  for
injuries  she sustained when a municipal vehicle struck  her  car
from  behind.   The  case was tried to a  jury.   Turner  appeals
various trial court rulings.  We conclude that the court did  not
err  in  admitting into evidence expert testimony  that  went  to
causation;  that  it was not reversible error to  reject  Turners
requested  jury  instructions; that it  was  not  error  to  deny
Turners  directed verdict, JNOV, and new trial motions; and  that
it was not error to calculate attorneys fees from the date of the
municipalitys offer of judgment, because the offer was valid.  We
also   conclude   that   because  the   municipality   adequately
established that a pretrial payment it made to Turners subrogated
insurer  was  for medical expenses covered by the  jurys  damages
award,  it was not error to grant the municipality an offset  for
that payment.  We therefore affirm the judgment below.
II.  FACTS AND PROCEEDINGS
          In  July 2001 a Municipality of Anchorage vehicle rear-
ended a car driven by Evadine Turner.  Turner underwent treatment
over  the  next year for a series of medical and dental problems,
including headaches, neck and back pain, flare-up of her temporal
mandibular disease (TMD), loose crowns and porcelain fractures on
several teeth, and a false aneurysm.
          Her  TMD and dental procedures are of special relevance
here.   In  an August 14, 2001 visit with her regular  physician,
Dr.  John Hunter, Turner complained of loosening of dentition  or
left mandible.  She visited Dr. Richard Bell in Portland, Oregon,
in  October for problems relating to her temporomandibular  joint
(TMJ).   Turner  had a prior history of TMJ problems.   Dr.  Bell
recommended nonsurgical therapy.  Turner returned to Dr. Bell  on
November  15,  and  he  referred her  to  a  prosthodontist,  Dr.
Catherine Lach.  Turner did not see Dr. Lach, but on November  19
she  visited  a different prosthodontist, Dr. Nader Rassouli,  of
Portland,    Oregon.     Dr.   Rassouli    performed    extensive
reconstructive  dental  procedures  over  the  next  year.    Dr.
Rassoulis  total bill exceeded $60,000.  On January 4, 2002,  Dr.
Rassouli  sent a letter to Johanna Grasso at Ward North  America,
the  municipalitys  claims adjuster.  The letter  explained  that
Turner  had  multiple  loose crowns and  bridges  with  porcelain
fractures on several teeth with unstable occlusion following  the
accident.
          On  May 14, 2002, Ward North America paid $4,345.08  to
Turners  subrogated  auto  insurer,  United  Services  Automobile
Association (USAA).  The payment was for subrogated expenses  for
these  services: (1) Turners emergency room treatment  at  Valley
Hospital; (2) diagnostic tests of Turners chest, spine, and head;
and (3) an MRI of Turners TMJ and X-rays ordered by Dr. Bell.
          Turner  sued  the  municipality in May  2003,  alleging
damages  in  excess  of  $100,000.   On  October  27,  2004   the
municipality made a $45,000 offer of judgment under Alaska  Civil
Rule  68  .   Turner did not accept the offer, and the  case  was
tried to a jury.
          The  municipalitys trial brief admitted  liability  for
the  accident and disclosed that the municipality had compensated
Turner  for  damage to her car and had reimbursed  USAA  (Turners
insurer)  for  its  medical  payments.   The  municipality   also
acknowledged in its closing jury argument that the accident might
have  been  responsible  for  Turners  TMD  flare-up.   But   the
municipality contested causation and damages as to Turners dental
work and false aneurysm.
          The  jurys  verdict  awarded Turner  $12,895  for  past
medical costs and $10,500 for past non-economic damages (pain and
suffering).  After the verdict was announced but before the  jury
was  dismissed,  Turner asked the court to require  the  jury  to
allocate  past  medical expenses.  The court denied  her  motion.
Turner  also  asked  the court to consider her  directed  verdict
motion.  The court denied this motion as well.
          Turner moved for a judgment notwithstanding the verdict
(JNOV) and alternatively requested a new trial.  The municipality
moved for entry of final judgment and requested an offset for the
$4,345.08  it  had  paid  USAA.   It  also  requested  costs  and
attorneys  fees  dating from its offer of  judgment,  per  Alaska
Civil Rule 68.
          Turner  opposed the offset motion and argued  that  the
offer  of  judgment was invalid in part because the  municipality
had  not  disclosed the USAA payment.  The court  denied  Turners
JNOV  and  new trial motions and entered final judgment  granting
the  offset, naming the municipality as the prevailing party, and
granting   it  costs  and  attorneys  fees.   Turner  moved   for
reconsideration and asked the court to sanction the  municipality
under  Alaska  Civil  Rule 37 for failing to  disclose  the  USAA
payment.   The  trial court denied the sanctions motion  and  the
reconsideration request.  Turner appeals.
III. DISCUSSION
     A.    It  Was  Not  an  Abuse  of Discretion  To  Admit  Dr.
Trueloves Testimony           into Evidence.

          A  tortfeasor  is  liable for injuries  to  the  victim
caused  by  the negligent actions of third parties  in  rendering
reasonably  necessary aid.1  Turner contends that this  principle
establishes  that the testimony of the municipalitys expert,  Dr.
Edmund  Truelove, was inadmissible as irrelevant and  prejudicial
because   its   purpose  and  effect  were  to  show   that   her
prosthodontist, Dr. Rassouli, rendered negligent treatment  after
the accident.2  She therefore argues that it was reversible error
to admit Dr. Trueloves testimony into evidence.
          When  admissibility  turns on a  question  of  fact  we
review the evidentiary ruling for abuse of discretion.3
          Dr. Trueloves testimony went to the disputed fact issue
of  whether  the  accident caused the conditions treated  by  Dr.
Rassouli; his testimony was therefore relevant, satisfying Alaska
Evidence Rule 402.4  Relevant evidence may be excluded if  it  is
unduly prejudicial, but Turner has not demonstrated that the risk
of  prejudice  outweighed the probative value  of  Dr.  Trueloves
testimony.5  There was no significant danger that the jury  would
misinterpret Dr. Trueloves testimony as accusing Dr. Rassouli  of
negligence because Dr. Truelove neither criticized Dr.  Rassoulis
care  nor  asserted  that  Dr. Rassouli had  negligently  treated
Turner.   Nor  did  the  municipality try to  use  Dr.  Trueloves
testimony  for an improper purpose; the municipality used  it  to
make  the  causal  argument  that the dental  work  Dr.  Rassouli
performed was not required by the accident and that his treatment
was  for wholly unrelated problems.6  We therefore conclude  that
the  trial  court did not abuse its discretion by  admitting  the
testimony into evidence.
     B.   Turner  Was  Not Harmed by the Trial Courts Refusal  To
          Give  a  Jury Instruction Based on Restatement (Second)
          of Torts  457.
          
          The  trial court gave the jury an instruction based  on
Alaska  Pattern Civil Jury Instruction 20.02, instructing  it  to
compensate the plaintiff for the reasonable expense of  necessary
medical  care related to the accident.7  Turner contends that  it
was  error not to give her suggested instruction, which was based
on  the  Restatement (Second) of Torts  457.8  Turners  requested
instruction  would have told the jury it could compensate  Turner
for  [a]ggravation  of  the original injury  resulting  from  the
failure of others to use reasonable care in providing medical  or
hospital treatment of the original injury.
          We  review  jury  instructions de novo  when  a  timely
objection is made.9
          Turner  asserts  that  her  suggested  instruction  was
necessary  because the jury could have understood  Dr.  Trueloves
testimony  as  implying that Dr. Rassouli was  negligent  in  his
medical  care.   But  as noted above, there  was  no  significant
danger  the  jury  would  draw such  an  inference.  Neither  Dr.
Trueloves testimony nor the municipalitys argument would have led
the jury to find that Dr. Rassouli had been negligent or to think
that  the  quality of his care had any bearing  on  jury  issues.
Furthermore,  the  trial  court  properly  instructed  the   jury
regarding the reasonable expense of necessary medical  care.   It
based  its  instruction on Alaska Pattern Civil Jury  Instruction
20.02,  which  correctly  states  Alaska  law  regarding  medical
expenses.  The courts instruction could not reasonably  have  led
the  jury  to  think  that the municipality was  not  liable  for
negligent medical care Turner necessarily received as a result of
the accident.
     C.   The Trial Court Did Not Err in Denying Turners Directed
          Verdict, JNOV, and New Trial Motions.
          Turner  asserts that because the municipality  admitted
that  it  was  liable for the accident and that the accident  may
have  caused  a flare-up of Turners TMD, there was no  reasonable
basis  for the jury to deny recovery for Dr. Rassoulis treatment.
Based on this assertion, Turner argues that it was error for  the
trial  court  to deny her motions for directed verdict,  judgment
notwithstanding the verdict (JNOV), or a new trial.
          In  reviewing  the  denial of  a  motion  for  directed
verdict  or JNOV, we apply an objective test to determine whether
the evidence, when viewed in the light most favorable to the non-
moving  party, is such that reasonable [persons] could not differ
in  their  judgment.10  We review denial of a new trial under  an
abuse  of discretion standard wherein we disturb the trial courts
discretion only in the most exceptional circumstances to  prevent
a miscarriage of justice.11
          We   are   unpersuaded   by  Turners   argument.    The
municipalitys  concession did not concede there  was  no  genuine
issue of disputed fact as to whether the accident was a cause  of
the  conditions  Dr.  Rassouli treated.  The  municipality  never
conceded  this  disputed  fact question.   The  jury  could  have
          permissibly found that the accident did not cause the conditions
treated  by  Dr.  Rassouli.  The trial court  therefore  properly
denied Turners motions.
          Weidner  v. Hibdon,12 on which Turner relies, does  not
compel  a different result.  Weidner explains that treatment  may
be   considered  reasonable  when:  (1)  the  plaintiff  presents
credible  evidence from her treating physician that the treatment
is  reasonably effective and necessary, (2) other medical experts
corroborate the evidence, and (3) the treatment falls within  the
realm  of medically accepted options.13  But the evidence  Turner
cites   testimony  from Dr. Rassouli and another medical  expert,
Dr.   Michael   Majchrowitz   was  disputed.   The   municipality
presented sufficient evidence to present a genuine issue of fact.
     D.   Even  if  the  Municipalitys Disclosure Was  Incomplete
          Under  Alaska Civil Rule 26(a), there Was No Reversible
          Error.
          
          1.    Turner  was  not  prejudiced by  any  failure  to
disclose.

          Turner  asserts  that  the  municipality  violated  its
Alaska Civil Rule 26 (a)(1) duty to disclose its payment to USAA.
She seems to argue that the disclosure violation was sanctionable
under Alaska Civil Rule 37(c) and that denying the offset was the
required  sanction.   Turner does not, however,  argue  that  the
trial  court committed reversible error by failing to grant  Rule
37  sanctions.  As an appellate court, we review the trial courts
rulings  for  legal error, but Turner has not specified  how  the
trial  court  erred.  Furthermore, it appears that  Turner  first
sought  Rule 37 sanctions when she sought reconsideration of  the
superior  courts final judgment.  She therefore did not  preserve
any  contention  that  it  was error not  to  impose  a  suitable
sanction below.14  She did argue below that the alleged failure to
disclose bore on both the offset and offer of judgment issues.
          Rule  26(a)(1) requires each party to disclose, without
awaiting  a discovery request, the factual basis of each  of  its
claims or defenses15 and to provide a copy of, or a description by
category  and location of, all documents . . . that are  relevant
to  disputed facts alleged with particularity in the pleadings.16
Rule  37(c)  allows the court to sanction parties for failing  to
disclose information required by Rule 26(a).
          The  municipality argues that it provided documentation
of   the  payment  in  its  Rule  26  initial  disclosures.   The
documentation it refers to consists of a ten-page fax  from  USAA
Subrogation  to  Ward North America, the municipalitys  adjuster.
One page of the fax bears a handwritten notation that appears  to
indicate  that a payment in the amount of $4,345.08 was  sent  to
USAA  on  May  14, 2002.  The notation was initialed  by  Johanna
Grasso, the Ward North America employee to whom the fax was sent.
Turner does not dispute that she received this document among the
municipalitys disclosures, but she contends that the notation  is
ambiguous and does not qualify as a disclosure.
          We  conclude that the municipalitys initial disclosures
were  incomplete,  and  also should have included  any  available
          canceled check or other evidence of payment.  But assuming that
the   municipalitys  disclosure  was  inadequate,  there  is   no
indication  the  failure  harmed Turner.   The  total  amount  of
damages  sought for medical expenses ($123,246.57) was  so  large
that  it is extremely unlikely a more complete disclosure of  the
$4,345.08 payment would have caused Turner to accept the  $45,000
offer of judgment.  Indeed, Turner did not assert in the superior
court,  and does not contend on appeal, that she would have  done
anything  differently had she been fully advised of the  payment.
Under these circumstances, there is no basis for concluding  that
the  municipalitys arguably inadequate disclosure  caused  Turner
prejudice  and that the trial court somehow abused its discretion
by denying sanctions.17
          2.    The  municipalitys Rule 68 offer of judgment  was
valid.
          Turner appeals the trial courts grant of attorneys fees
to  the  municipality under Alaska Civil Rule 68.  Turner asserts
that  the  municipalitys  failure to disclose  its  USAA  payment
invalidated  its  $45,000 Rule 68 offer of judgment  because  the
allegedly  undisclosed payment made the offer more valuable  than
it  appeared  to  be on its face.  Turner assumes  that  a  party
cannot  evaluate  an  offer of judgment if the  other  party  has
withheld  disclosable  information.  But Turners  argument  fails
because  the municipality did not altogether withhold information
of  the payment, and there is no suggestion that Turner should be
excused  from  the  consequences of rejecting the  offer  on  the
theory  that she would have acted differently had a more complete
disclosure been made.
          We  review  questions  of  law  such  as  an  offer  of
judgments  compliance with Rule 68 under an independent  de  novo
standard.18   The  court adopts the rule  of  law  that  is  most
persuasive in light of precedent, policy, and reason.19
          Under  Alaska  Civil  Rule 68(b) a  party  receiving  a
judgment  less  favorable than a rejected offer of judgment  must
pay  a percentage of costs and attorneys fees calculated from the
date  of the offer.  An offer of judgment is treated as an  offer
for  a  contract;  it  requires a meeting of  the  minds  on  the
essential terms of the offer.20  It also must specify a  definite
sum and must be unconditional.21
          The municipalitys offer of judgment was for $45,000.00,
plus  allowable costs pursuant to Alaska R.Civ.P. 79, prejudgment
interest  as  provided by law, and attorney fees as permitted  by
Alaska  R.Civ.P.  82.  The offer also specified that  the  amount
would  constitute complete satisfaction of all claims  for  money
which  are  made by the Plaintiff, Evadine Turner, including  all
medical   liens,  subrogation  claims,  and  other   claims   for
reimbursement.
          In  Jaso  v. McCarthy we held that an offer of judgment
was  not  conditional even though it included language obligating
the offeree to satisfy all liens from the proceeds of the offer.22
We  determined that there was no material difference between Jaso
and  Grow  v.  Ruggles,23 in which we held that an offer  is  not
conditional even though it acknowledges the existence of  a  lien
and  notes  that  a party is responsible for any liens  that  may
          exist against a settlement.24
          Turner  does  not argue that the offer was conditional,
but  rather  that it was ambiguous.  Turner relies on Thomann  v.
Fouse.25   In  Thomann  we held that an  offers  reference  to  a
possible  future  arbitration made the offer  ambiguous  and  too
indefinite to support an award under Rule 68.26  We reasoned that
even  if Fouse meant [the reference to future arbitration] to  be
irrelevant,  the  presence of this detail invited  confusion  and
could  reasonably  have  led Thomann to wonder  what  effect  the
subsequent arbitration might have on her medical claim.27
          Thomann is distinguishable.  Whereas Thomann dealt with
an  offers  reference to future arbitration regarding liens,  the
alleged ambiguity in the municipalitys offer of judgment lies  in
what  it  does  not say  namely that one of the  liens  has  been
satisfied.   This  is not enough to invalidate  the  offer.   The
offer  does not purport to lay out the various expenses for which
Turner  will  be responsible; it merely proposes to  release  the
municipalitys  responsibility for them.  The fact that  the  USAA
lien  had  already been paid, and therefore extinguished,  simply
means  that it was not among any unnamed liens and reimbursements
that  Turner would have to pay out of the offer.  The  offer  was
consequently not ambiguous.  We therefore affirm the trial courts
grant of post-offer attorneys fees.
     E.   The Municipality Adequately Demonstrated that the Jurys
          Award  Duplicated the Medical Expenses Covered  by  the
          Municipalitys Payment to USAA.
          
          Turner asserts that it was error for the trial court to
give the municipality a $4,345.08 offset for its payment to USAA.
It  is  undisputed that the municipality repaid USAA for some  of
Turners  medical  bills, but Turner argues  that  to  receive  an
offset,  the  municipality had to establish that its  payment  to
USAA was for the same expenses covered by the jurys damage award.28
The  municipality does not dispute this proposition;  it  instead
argues  that  there  is  sufficient evidence  in  the  record  to
conclude  that  the  jury  award did include  the  same  expenses
covered by USAAs discharged subrogation lien.
          Under the common law a tort award may be offset by  any
amount  previously paid by a defendant (or its  insurer)  towards
its tort liability.29  This includes payments made to a plaintiffs
subrogated  insurer.30  Although few courts  have  addressed  the
issue, the trend seems to be towards granting an offset for prior
payments  only when they directly correspond to specific  damages
awarded by the jury.
          There  are  two  situations in  which  defendants  have
traditionally been required to show that a prior payment was  for
the  same  injury or expenses covered by damages awarded  by  the
jury:  when payment came from a joint tortfeasor and when payment
came from a collateral source.31  Although there is less case law
regarding  the  showing of same-injury or  same-expense  when  an
offset  is  sought for a defendants own prior payments, precedent
from several states supports such a requirement.
          1.     Common  law  burden  of  proving  offset:  joint
tortfeasors
          Defendants  have  typically been  granted  offsets  for
prior payments made by joint tortfeasors, although this offset is
no longer arguably available in Alaska.32  A defendant seeking an
offset for a joint tortfeasors payment must prove that the  prior
payment was for the same expenses for which it is liable.33  This
approach is instructive even though Turners case does not involve
a  joint  tortfeasors  payment, and even though  a  defendant  in
Alaska  no  longer  has  an arguable offset  claim  for  a  joint
tortfeasors payment.
          The  dissenting opinion in Falconer v. Adams considered
the  offset  question,  and argued that  a  defendant  should  be
granted  an  offset under the common law if it could  prove  that
damages  assessed  against  it  coincided  with  previously  paid
damages.34  The standard the dissent effectively urged is the one
that  pertains  to  prior  payments by  joint  tortfeasors.   The
dissent  cited to Wood v. Diamond M Drilling Co.35 and  to  cases
cited  by  Wood  to  support  the dissents  contention  that  the
defendant  must show that the prior payments were  for  the  same
expenses compensated by the trial court.  The cases cited in Wood
are  joint tortfeasor cases.  Wood primarily relied on  Cates  v.
United States.36  In Cates, the United States government sought an
offset  for prior payments made by another defendant, Reynolds.37
Cates  held  that the Government is not entitled to  a  reduction
equal   to   the  amounts  paid  by  Reynolds  specifically   for
maintenance and cure . . . since there is no affirmative  showing
on  the  record  that any of the $8,000 judgment  duplicated  the
maintenance  and  cure and medical expense items awarded  against
the government.38
          Other  jurisdictions have required such a showing  from
joint  tortfeasors,  especially  if  one  defendant  settles  and
another  defendant  seeks an offset for the amount  paid  by  the
settling  defendant.  For example, in Boyett v.  Keene  Corp.,  a
defendant  sought an offset in the amount of a joint  tortfeasors
prior  settlement.39  The United States District Court  in  Texas
held  that  [t]he burden of proving that the settlement  and  the
judgment  represented  common damages, such  that  the  plaintiff
would  receive a double recovery if no offset were allowed, rests
on the party seeking a credit.40  Likewise, in Phillips v. Liberty
Mutual  Insurance  Co., the Eleventh Circuit  Court  of  Appeals,
citing Georgia law, stated that a joint tortfeasor is entitled to
a  setoff  only  if  the amount is proved.41  And  in  Zivitz  v.
Greenberg,  the  Seventh  Circuit  Court  of  Appeals  held  that
[n]onsettling tortfeasors . . . are entitled to a setoff only for
damages  that  are  awarded for the same  injury  for  which  the
settling  defendants  compensated the plaintiff.42   These  cases
demonstrate   that,  at  least  for  prior  payments   by   joint
tortfeasors,  courts have required a same-injury or same-expenses
showing to grant an offset.
          2.    Statutory  burden of proving  offset:  collateral
sources
          In  Alaska  AS 09.17.070 allows defendants offsets  for
certain   collateral   source  payments   received   by   injured
plaintiffs.43  It provides that after the factfinder has rendered
an   award   a  defendant  may  introduce  evidence  of   amounts
          received . . . for the same injury from collateral sources.44
Although  we have not directly addressed the issue,  two  of  our
opinions indicate that AS 09.17.070 requires a defendant to prove
that  prior collateral source payments were for the same  medical
expenses awarded by the jury.
            In  Falconer,  we  noted that one  problem  with  the
defendants offset claims was that it was entirely unclear whether
Allstates  check  reimbursed State  Farm  for  the  same  medical
expenses  awarded  by  the jury.45  We therefore  interpreted  AS
09.17.070 as requiring a same-expenses showing.46
          In  Liimatta  v.  Vest, the plaintiff argued  that  the
defendant could not receive an offset under AS 09.17.070  because
the  defendant  did  not establish that the funds  advanced  were
intended to compensate her for the same injury for which the jury
awarded damages.47  Although we expressed no disagreement with the
same  injury  standard under AS 09.17.070, we  did  not  have  to
address  the  issue because we held there that AS 09.17.070  does
not apply to payments by a non-collateral source.48
          Even  though AS 09.17.070 does not apply here, it  does
provide a useful model for dealing with offsets.  Its requirement
that the defendant show that any payments for which she seeks  an
offset  are  included in the jury award reflects in an  analogous
context  a  policy  choice  about a  defendants  burden  and  the
consequences of a failure of proof.
          Courts  have  good reason to require a  same-injury  or
same-expense  showing when prior payments are made  by  either  a
joint  tortfeasor or a collateral source.  The purpose of  offset
in both situations is avoiding double recovery; therefore, if the
prior payment was for a different injury than the one compensated
at  trial, no issue of double recovery arises.  It is logical  to
err  on  the  side of requiring the defendant to pay because  the
joint  tortfeasors prior payment or the collateral source payment
did not come out of the trial defendants own pocket.  Putting the
burden  of proof on the trial defendant to show that the  payment
was  for  the same injury or expense allows the court to  protect
the  plaintiffs  interests  without  risking  unfairness  to  the
defendant.  Either way, the defendant will not have to pay  twice
for the same expenses.
          If  the trial defendant made the prior payments,  there
are  two  primary  rationales for allowing  an  offset:  avoiding
double  recovery  by  the  plaintiff,  and  avoiding  making  the
defendant  pay twice.  If the jury has not been asked to  specify
what damage items it is compensating, the court risks both double
payment  by  the  defendant and inadequate  compensation  of  the
plaintiff.  There are thus competing interests on either side  of
the  scale, and it is not as clear that the defendant should have
the  burden  of proof on the same-expenses issue.  But  we  think
that  on balance, fairness favors requiring the defendant to show
that its prior payment covered the same expenses included in  the
jurys  award.   Defendants should be encouraged to  make  advance
payments  for injuries for which they are liable, but it  is  not
unreasonable  to require them to show that any amount  of  offset
directly  corresponds to the trial award.  This is especially  so
because  the  defendant  is in the best  position  to  know  what
          expenses it intended to reimburse when it made advance payments
to  the  plaintiff.  Requiring a same-expenses showing encourages
the defendant to be straightforward about advance payments and to
ask the fact-finder to make specific damages findings, or to take
the chance it may not receive a full offset.
          3.   Offsets for the trial defendants prior payments
          Courts  elsewhere  have indicated that  to  receive  an
offset  a defendant must prove that its own advance payments  are
for  the  same expenses compensated by the jury.  In  Douglas  v.
Adams  Trucking  Co.,  the Arkansas Supreme Court  addressed  the
question  of  how much offset to grant a defendant who  had  made
advance payments to the plaintiff.49  The court affirmed the trial
courts decision to offset the jury award by advances paid by  the
defendant but nonetheless remanded, holding that not all  of  the
expenses paid by the defendant should be offset.50
          The  plaintiff had been injured when he was  struck  by
defendants  truck.51   The defendants liability  carrier  made  a
series of advance payments to the plaintiff for medical expenses,
loss  of  property, and loss of income.52  On appeal,  the  court
first  held  that  despite  the defendants  failure  to  make  an
explicit  agreement  with the plaintiff that the  advances  would
count  towards future liability, the defendant was still entitled
to  an  offset.53  The court then determined the  amount  of  the
offset.54  Although the trial court had granted the defendant  an
offset  for  the  full  amount it had  paid,  the  supreme  court
declined  to  do so.55  Instead, the court considered  what  each
specific  payment had been for and whether the payment  coincided
with  costs  awarded by the jury.56  It determined that  although
most of the advance payments could be offset, there should be  no
offset as to the $100,000 pain and suffering award because  there
was  no  evidence  any  of the defendants advance  payments  were
intended  to  compensate the plaintiff for pain and  suffering.57
The  court  also declined to recognize an offset for  an  advance
payment intended to reimburse the plaintiff for one damages  item
because it concluded that this advance does not correspond to any
of the jurys special verdicts.58  Thus, the court applied offsets
only  for those expenses that could be linked to specific damages
awarded by the jury.
          In Cottrell v. Burlington Northern Railroad the Montana
Supreme  Court  considered  whether  the  plaintiffs  lost  wages
previously  paid  by  the defendant were included  in  the  jurys
damages  award.59  Although we face a slightly different  inquiry
here  (where  the question is not about the type of damages,  but
rather  the  type of injury), both issues present similar  policy
choices between undercompensation and overpayment.
          The  Cottrell court held on appeal that the lower court
had  erred in refusing to grant an offset for prior amounts  paid
by  the  defendant for wage loss.60  The court on appeal did  not
specifically  say that the defendant was or was not  required  to
make  a same-damages showing, but its reasoning seems to indicate
that  such  a  showing was required.  In holding that  the  lower
court  had  erred in denying the offset, the court did  not  hold
that  an  offset  was always required, but rather  that  in  that
particular case it was logical to conclude that at least part  of
          the jurys award was for the same expenses previously paid by the
defendant.61   This was so because the jury had  awarded  damages
totaling  more than $1.3 million, and the plaintiff  had  claimed
wage  loss  damages  of $862,230 and general pain  and  suffering
damages   of  between  $700,000  and  $1,000,000.62   By  logical
deduction  at  least  $300,000  of  [the]  recovery  had  to   be
compensation  for  wage  loss.63   The  court  remanded   for   a
determination  of the exact amount of offsets to which  defendant
[was] entitled.64  By going through the steps to prove that  some
of  the  jury award had to be for the same damages sought by  the
defendant,  the  court  indicated that an  offset  would  not  be
granted  absent some positive proof that the defendants  payments
coincided with the jury award.
          These  courts  have all indicated that a defendant  has
the  burden of showing that its prior payment and the jury  award
were  for  the same injury or expense.  We agree.  If a defendant
intends  to  seek an offset, it is responsible for ensuring  that
the jurys verdict is sufficiently specific for the trial court to
determine  whether the jury awarded the same expenses  for  which
the  offset is sought.  Although Turner argued that it was unfair
for  the  municipality  to seek an offset after  objecting  to  a
damages  allocation by the jury, the municipalitys opposition  to
the   post-verdict   allocation  sought   by   Turner   was   not
inappropriate,  given  its legitimate interest  in  avoiding  the
appearance  of  an inconsistent verdict.65  But even  though  the
municipality  legitimately opposed Turners  post-verdict  request
for  an allocation in this case, it still bore the responsibility
for  showing  that  its past payment covered  the  same  expenses
awarded by the jury.
            In  the Montana case, the jury awarded enough damages
that  the  court could logically deduce that there was  at  least
some overlap between the prior payment and the award.
          Here,  the  jurys  award of $12,895  for  Turners  past
medical  costs  was  for a small fraction of  the  total  medical
damages Turner claimed.  Nonetheless, we think it important  that
in  final  argument the municipality conceded liability  for  the
medical expenses covered by its pretrial payment, and also argued
that  about $8,000 of past medical expenses were attributable  to
the  accident.   There  was  consequently  no  dispute  that  the
municipality  owed  these  conceded  amounts  for  these  medical
services.  Indeed, there would have been no basis for the jury to
fail  to  award  the  full  amount of  the  conceded  items.   We
therefore must assume that the jurys past medical cost  award  of
$12,895 included the expenses for which the municipality seeks an
offset.   Consequently, the trial court did not err  in  granting
the municipality the $4,345.08 offset.
IV.  CONCLUSION
          We therefore AFFIRM the judgment below.
_______________________________
     1     See Restatement (Second) of Torts  457 (1965) (If  the
negligent tortfeasor is liable for anothers bodily injury, he  is
also   subject  to  liability  for  any  additional  bodily  harm
resulting  from normal efforts of third persons in rendering  aid
which  the  others  injury reasonably requires,  irrespective  of
whether such acts are done in a proper or a negligent manner.).

     2    See Alaska R. Evid. 402 (Evidence which is not relevant
is  not  admissible.);  Alaska R. Evid. 403  (Although  relevant,
evidence may be excluded if its probative value is outweighed  by
the  danger  of  unfair prejudice, confusion of  the  issues,  or
misleading the jury. . . . ).

     3     Laidlaw  Transit, Inc. v. Crouse, 53 P.3d  1093,  1097
(Alaska 2002).

     4     Alaska R. Evid. 402.  Alaska Evidence Rule 401 defines
relevant  evidence as evidence having any tendency  to  make  the
existence of any fact that is of consequence to the determination
of  the  action more probable or less probable than it  would  be
without the evidence.

     5    Alaska R. Evid. 403.

     6     Referring  to  Dr. Rassoulis treatment  in  its  final
argument  to the jury, the municipalitys attorney contended  that
it all raises questions as to was all of that work related at all
to  the auto accident and I tell you that it wasnt.  All of  that
reconstructive work had nothing to do with the accident . . . .

     7     The  relevant part of the courts instruction told  the
jury: The first item of economic loss claimed by the plaintiff is
the  reasonable expense of necessary medical care from  July  19,
2001  to  January  31,  2005  [and]  the  reasonable  expense  of
necessary medical care reasonably probable to be received in  the
future.

     8     As  noted  above,  457 embodies the principle  that  a
tortfeasor  is  liable for any additional bodily  harm  resulting
from  normal efforts of third persons in rendering aid which  the
[victims] injury reasonably requires, even if the aid is rendered
in a negligent manner.

     9     Reich  v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002).

     10    Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska
1999)  (quoting City of Whittier v. Whittier Fuel & Marine Corp.,
577 P.2d 216, 220 (Alaska 1978)).

     11    Bierria v. Dickinson Mfg. Co., 36 P.3d 654, 656 (Alaska
2001).

     12    Weidner v. Hibdon, 989 P.2d 727 (Alaska 1999).

     13    Id. at 732.

     14     DeNardo  v. GCI Commcn Corp., 983 P.2d 1288,  1292-93
(Alaska  1999) (holding that appellant waived issue first  raised
in superior court in motion for reconsideration).

     15    Alaska R. Civ. P. 26(a)(1)(A).

     16    Alaska R. Civ. P. 26(a)(1)(D).

     17     Turner also asserts that the municipality was required
to plead offset as an affirmative defense under Alaska Civil Rule
8(c).   In  Alaska we have not yet addressed whether  Rule  8(c),
which  requires  a defendant to plead payment as  an  affirmative
defense,  applies to claims of offset, such as the municipalitys.
But  Turners Rule 8(c) claim fails for the same reason  her  Rule
26(a)  and  Rule 37(c) claims fail: she has not shown,  nor  even
claimed,  that the outcome of the case would have been  different
had the municipality more thoroughly disclosed the payment or had
its  answer pled for offset.  She has not demonstrated  that  any
possible trial court error in this regard requires reversal.

     18    Thomann v. Fouse, 93 P.3d 1048, 1050 (Alaska 2004).

     19     Jaso  v.  McCarthy, 923 P.2d 795, 801  (Alaska  1996)
(citations omitted).

     20    Davis v. Chism, 513 P.2d 475, 481 (Alaska 1973).

     21    Id.

     22    Jaso v. McCarthy, 923 P.2d 795, 801-02 (Alaska 1996).

     23    Grow v. Ruggles, 860 P.2d 1225 (Alaska 1993).

     24    Jaso, 923 P.2d at 801-02.

     25    Thomann v. Fouse, 93 P.3d 1048 (Alaska 2004).

     26    Id. at 1049.

     27    Id. at 1051.

     28     Both parties cite to Falconer v. Adams, 974 P.2d  406
(Alaska  1999), in discussing whether the municipality must  make
an  affirmative  same-injury showing to receive an  offset.   But
Falconer is not directly on point.  In Falconer we indicated that
a  party  seeking an offset under AS 09.17.070 for payments  from
collateral sources must show that the payments were for the  same
expenses  compensated by the jury award.   974  P.2d  at  412-13.
This  case  concerns not a collateral source payment  by  another
payor, but a prior payment by the defendant itself.  AS 09.17.070
therefore has no direct application here.

     29    Chenega Corp. v. Exxon Corp., 991 P.2d 769, 791 (Alaska
1999).  See also Restatement (Second) of Torts  920A (1979).

     30    See Brinkerhoff v. Swearingen Aviation Corp., 663 P.2d
937,  942 (Alaska 1983) (holding that plaintiff could not recover
for subrogated claim subrogee had already settled).

     31     Joint  tortfeasors  are  not  treated  as  collateral
sources;  a defendant typically has a common law right to  offset
for  any  joint  tortfeasors  prior  contribution  for  the  same
expenses,  while  offsets for collateral source payments  require
statutory authorization.  See Restatement (Second) of Torts  920A
(1979).  Defendants in Alaska have no right to receive an  offset
for  payments  made  by a joint tortfeasor.   Petrolane  Inc.  v.
Robles, 154 P.3d 1014 (Alaska 2007).  Nonetheless, the procedures
by  which  joint tortfeasors elsewhere may seek an offset  remain
instructive in the case before us.

     32     Compare Restatement (Second) of Torts  920A(1) (1979)
(A  payment  made by a tortfeasor . . . to a person whom  he  has
injured  is credited against his tort liability, as are  payments
made  by  another who is, or believes he is, subject to the  same
tort liability.) with Petrolane Inc. v. Robles, 154 P.3d at 1020-
21.

     33    See, e.g., Phillips v. Liberty Mut. Ins. Co., 813 F.2d
1173,  1176 (11th Cir. 1987); Boyett v. Keene Corp., 815 F. Supp.
204, 209 (E.D. Tex. 1993).

     34     Falconer  v. Adams, 974 P.2d 406, 416  (Alaska  1999)
(Matthews, C.J., dissenting).

     35     Wood  v. Diamond M Drilling Co., 691 F.2d 1165,  1171
(5th Cir. 1982).

     36    Cates v. United States, 451 F.2d 411, 417-18 (5th Cir.
1971).  Wood itself concerns whether a jury award for lost  wages
duplicates the same jurys award for maintenance and cure.   Wood,
691 F.2d at 1171.

     37    Cates, 451 F.2d at 417-18.

     38    Id. at 417.

     39    Boyett v. Keene Corp., 815 F. Supp. 204, 209 (E.D. Tex.
1993).

     40    Id.

     41    Phillips v. Liberty Mut. Ins. Co., 813 F.2d 1173, 1176
(11th Cir. 1987) (citations omitted).

     42    Zivitz v. Greenberg, 279 F.3d 536, 539 (7th Cir. 2002).

     43    Although both parties refer to AS 09.17.070 on appeal,
the  statute  is not directly on point because the  municipalitys
payment to USAA is not a collateral source.  But the statute does
serve as a useful model for considering whether to require a same-
injury showing.

     44    AS 09.17.070(a).

     45    Falconer, 974 P.2d at 412-13.

     46    Id.

     47    Liimatta v. Vest, 45 P.3d 310, 319-20 (Alaska 2002).

     48    Id. at 320.

     49     Douglas  v. Adams Trucking Co., 46 S.W.3d  512  (Ark.
2001).

     50    Id. at 519.

     51    Id. at 513.

     52    Id. at 513-14.

     53    Id. at 516-17.

     54    Id. at 518-19.

     55    Douglas v. Adams Trucking Co., 46 S.W.3d 512, 519 (Ark.
2001).

     56    Id. at 518-19.

     57    Id. at 519.

     58    Id.

     59     Cottrell v. Burlington N. R.R., 863 P.2d  381  (Mont.
1993).

     60    Id. at 389.

     61    Id. at 388-89.

     62    Id.

     63    Id. at 389.

     64    Id.

     65     Just  before  moving for allocation of  past  medical
expenses,  Turners counsel  asked that the jury  be  required  to
reexamine  its award of past medical expenses on the ground  that
it was inconsistent.

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