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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sidney v. Allstate Insurance Company (01/11/2008) sp-6220

Sidney v. Allstate Insurance Company (01/11/2008) sp-6220, 187 P3d 443

     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,


) Supreme Court No. S- 12083/S-12084
Appellant/ )
Cross-Appellee, )
) Superior Court No.
v. ) 3AN-04-11180 CI
Appellee/ )
Cross-Appellant. ) No. 6220 - January 11, 2008
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon Gleason, Judge.

          Appearances:   Leonard T.  Kelley,  Kelley  &
          Canterbury,      LLC,     Anchorage,      for
          Appellant/Cross-Appellee.   Barry  J.   Kell,
          Call,  Hanson  &  Kell, P.C., Anchorage,  for

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

          CARPENETI, Justice.

          A  passenger was injured in an automobile accident  and
entered into settlement with the drivers insurance carrier for  a
$50,000 Coughlin policy limits settlement  the face limits of the
drivers policy, but without additional add-ons of attorneys  fees
or  prejudgment  interest.  The passenger then  pursued  coverage
with  her  own underinsured motorist (UIM) insurer.  Her  insurer
disputed  the  amount  of damages and the  parties  proceeded  to
arbitration.   Following  entry of an arbitration  award  in  the
passengers  favor, her carrier paid the amount of the award  less
the   $50,000  settlement.   The  passenger  requested  that  the
superior court confirm the full amount of the arbitration  award,
arguing  that  her carrier had failed to raise the issue  of  the
$50,000  settlement at arbitration and claiming that the  carrier
was  therefore  not  entitled to an offset.  The  superior  court
ultimately allowed the carrier to reduce its UIM payment  by  the
amount  of  the  settlement, but ordered it  to  pay  prejudgment
interest  and  attorneys  fees on  the  $50,000.   The  passenger
appeals  the  reduction  of  the arbitration  award,  the  courts
calculations  of prejudgment interest and fees,  and  the  courts
refusal  to  award her enhanced fees.  Her insurer  cross-appeals
and  claims the court erred in requiring it to pay add-ons on the
settlement, finding the passenger to be the prevailing party, and
awarding her attorneys fees.
          Because  UIM  coverage does not apply until  underlying
liability  coverage is exhausted, we conclude that  the  superior
court  correctly reduced the arbitration award by  $50,000.   But
because we also conclude that the passenger elected to forgo add-
ons  on the settlement from the liability insurer, we reverse the
courts order finding her insurer liable for those sums in all but
one  respect:  The passenger is entitled to a pro rata  award  of
attorneys fees because her litigation efforts associated with the
settlement  procured a benefit for her insurer.   We  affirm  the
order of the superior court in all other respects.
     A.   Facts
          Joanne Sidney was riding as a passenger in a car driven
by  William  Sidney  on January 13, 2000.   The  Sidneys  vehicle
became disabled, and William Sidney got out of the vehicle in  an
attempt  to  divert traffic.  A car driven by Musa Kanteh  struck
the Sidneys vehicle, injuring Joanne Sidney.
          Joanne  Sidney was covered under an Allstate automobile
liability  policy  that provided $50,000 in  liability  coverage,
$25,000  in medical payments coverage, and underinsured  motorist
protection  of $50,000 per person/$100,000 per accident.   Sidney
also  maintained  a personal umbrella policy with  Allstate  that
provided  motor  vehicle  liability coverage  and  statutory  UIM
coverage.   That  policy provided a $1,000,000  liability  limit.
Following  the accident, Allstate paid Sidney $25,000  under  the
medical  payments  coverage of her automobile  liability  policy,
exhausting  her  medical payments coverage  and  resulting  in  a
subrogation  claim by Allstate against the driver  of  the  other
vehicle, Musa Kanteh.
          Kanteh   maintained  a  liability  policy  with  Safeco
Insurance Company that provided $50,000 in coverage.  In May 2003
Sidney  settled  her  claims against Kanteh by  entering  into  a
settlement  with Safeco, whereby Safeco paid Sidney  $25,000  and
assumed   responsibility  for  satisfying  the  $25,000   medical
payments  lien  asserted  by Allstate (the  $50,000  settlement).
Sidney  tendered  the settlement offer to Allstate,  stating  she
intended to accept the offer thereby triggering UIM coverage with
          Following the liability settlement with Safeco,  Sidney
pursued  UIM benefits from Allstate.  Sidney and Allstate  failed
to  reach agreement and they proceeded to arbitration.  A one-day
arbitration hearing was held on August 15, 2004.  The arbitration
panel ultimately entered an award of $118, 432.1
     B.   Proceedings
          On September 21, 2004, Sidney filed a complaint seeking
to  confirm  the  full  arbitration award.   She  contended  that
Allstate  had  not  pled or tried any offset to  the  arbitration
panel  and  had  not yet paid her the full amount due  under  the
award.   She requested confirmation of the full award plus costs,
attorneys  fees, and prejudgment interest as well as  payment  of
arbitrators fees, post-award fees, costs, and interest.
          On  October  26, 2004, Allstate forwarded a  $95,727.82
payment to Sidney.  That amount consisted of $68,432 (the  amount
of  the  original arbitration award less the $50,000  settlement)
plus interest and attorneys fees.2
          Allstate  then answered Sidneys complaint.  It  alleged
that  Sidney  was entitled only to the amount of the  arbitration
award  over and above the $50,000 settlement and that Sidney  was
not  entitled to additional payments (or add-ons) of  prejudgment
interest,  attorneys  fees, or costs on the settlement.   Shortly
thereafter, Allstate filed an application to vacate,  modify,  or
remand  the arbitration award for clarification.  Sidney filed  a
limited  opposition, noting that Allstate had not made  a  timely
request to the arbitration panel to offset the $50,000 award.
          In  March  2005  Allstate moved for  summary  judgment,
arguing  that  (1)  Alaskas UIM statutory  scheme  required  that
Sidneys  $50,000 settlement be deducted from the full arbitration
award  before determining the principal amount due under her  UIM
coverage; (2) Sidney was not entitled to prejudgment interest  or
attorneys fees on the settlement; and (3) Sidney was not entitled
to costs incurred in the arbitration proceeding.
          In   April  2005  Sidney  moved  to  reduce  the   full
arbitration  award to judgment.  She asserted that  (1)  she  was
entitled  to add-ons on the full amount of the arbitration  award
prior  to  any claimed offset; (2) Allstate waived any claim  for
reduction or offset by failing to raise the issue at arbitration;
and  (3) alternatively, Allstate was only entitled to offset  the
$25,000  liability  payment portion of the  settlement  from  the
award.    She  also  requested  costs  and  fees  for  both   the
arbitration and the confirmation proceedings.
          On  May  23,  2005,  following oral argument,  Superior
Court  Judge Sharon Gleason issued an order deducting the $50,000
settlement  from  Sidneys  gross arbitration  award.   But  Judge
Gleason  also  concluded  that  Sidney  was  first  entitled   to
prejudgment interest, costs, and attorneys fees calculated on the
full amount of the award.  The court declined to award Sidney the
costs she incurred during the arbitration proceedings.
          Allstate then moved for partial reconsideration on  the
issue of add-ons on the $50,000 settlement.  Judge Gleason denied
the  motion,  citing  our  analysis  in  Coughlin  v.  Government
Employees  Insurance Co. (GEICO)3 and Ruggles ex rel.  Estate  of
          Mayer v. Grow4 but also readily acknowledge[d] that reasonable
minds could differ on this issue.
          Sidney requested entry of final judgment, determination
of  prevailing party status, and an award of attorneys  fees  and
costs.   Allstate cross-moved for a determination  of  prevailing
party status.  The superior court entered judgment for Sidney  in
the  amount  of  $15,440  plus  post-judgment  interest.   Sidney
objected  to  the  courts calculations and  moved  to  amend  the
judgment.   Allstate filed a partial opposition, but agreed  that
the  court  had erred in its calculations and submitted  its  own
proposed calculations.
          The  parties then entered into a stipulation  that  the
judgment  and  calculations  as set forth  in  Allstates  partial
opposition  reflect[]  the  correct  calculation  of  the   final
judgment  in view of the courts rulings on the merits.   Pursuant
to  the  parties stipulation, the court issued an  amended  final
judgment  on  August   31,  2005,  generally  adopting  Allstates
calculations  and entering judgment for Sidney in the  amount  of
          Both parties now appeal the amended final judgment  and
the  superior courts order on summary judgment.  Sidney  contends
that  the trial court erred in (1) reducing her arbitration award
by  $50,000;  (2) offsetting the $25,000 medical payments  claim;
(3)  calculating  fees  and interest on  the  $50,000  settlement
rather  than  on  the  full arbitration  award;  (4)  calculating
interest  on past damages; (5) refusing to award Sidney attorneys
fees  based  on  the total arbitration award plus  interest;  (6)
refusing  to  award  her  the costs of the  arbitration  and  the
confirmation  proceedings;  and  (7)  refusing  to  award  Sidney
enhanced or full attorneys fees.
          Allstate  cross-appeals, contending the court erred  in
(1)  ordering Allstate to pay prejudgment interest and  attorneys
fees  on  the  $50,000 settlement; (2) awarding interest  on  the
$25,000  in medical payments; and (3) finding Sidney  to  be  the
prevailing party.
          We review the superior courts grant of summary judgment
de  novo,5  and  will affirm if there are no  genuine  issues  of
material fact and the winning party was entitled to judgment as a
matter of law.6
          Judicial  review  of  arbitration  awards  is   closely
circumscribed.7   The  superior court has  limited  authority  to
correct  and  review  arbitration awards  and  may  only  vacate,
modify,  or  correct  an  arbitration award  pursuant  to  narrow
statutory parameters.8  We review a superior courts review of  an
arbitration decision de novo when it deals with questions of  law
and contract interpretation.9
          Whether a dispute is arbitrable10 and whether a superior
courts  decision to affirm an arbitration award is correct11  are
both  questions of law that we also review de novo.
          In the absence of evidentiary dispute, the existence of
an offset presents a question of law.12  We apply our independent
determination   to   questions   of   statutory   and    contract
interpretation,13  and adopt the rule of law most  persuasive  in
          light of precedent, reason, and policy.14
          The  determination  of whether a  prevailing  party  is
entitled to prejudgment interest is a question of law to which we
apply  our independent judgment, keeping in mind that such awards
should be denied only to avoid an injustice.15
          We   review   the  superior  courts  determination   of
prevailing party status, as well as its awards of costs and fees,
for  abuse  of discretion.16  We will find an abuse of discretion
only  where the courts determination is manifestly unreasonable17
or when our review of the entire record leaves us with a definite
and firm conviction the trial court erred.18
          In  1990 Alaska adopted an excess coverage approach  to
underinsured motorist insurance.19  The excess approach seeks  to
maximize  the  potential for full compensation  by  allowing  the
purchaser  of  UIM  insurance to supplement  available  liability
payments  with UIM payments to the extent necessary to cover  all
actual  damages.20   Alaska Statute 28.20.445 provides  that  UIM
coverage  cannot be drawn upon until the limits of  liability  of
all  bodily  injury  and  property  damage  liability  bonds  and
policies  that apply have been used up by payments, judgments  or
settlements.21   Thus,  an  insured  must  use  up,  or  exhaust,
available  underlying  liability policy  limits  before  she  can
pursue UIM benefits.22  In this case, neither party disputes that
Sidneys settlement with Safeco exhausted the Safeco policy limits
and triggered Sidneys right to pursue UIM benefits.
     A.   The  Superior  Court Correctly Reduced the  Arbitration
          Award by the $50,000 Liability Settlement.
          We  first  turn to the question of whether the superior
court  correctly  deducted the $50,000 liability settlement  from
Sidneys  arbitration  award  in determining  the  amount  of  UIM
benefits  Allstate  was required to pay.   Sidney  contends  that
because  Allstate failed to present evidence of  this  offset  or
raise  the  issue  of  the  $50,000  settlement  at  arbitration,
Allstate is required to pay the full arbitration award.  Allstate
counters  that  the arbitration panel was asked to determine  the
amount  of  total  damages Sidney incurred as  a  result  of  her
accident,  rather than what portion of her damages  were  payable
under  her UIM coverage, and thus the court properly reduced  the
full arbitration award by the amount of the settlement.  Allstate
further  argues that the panel lacked the authority to  determine
the  effect  of  the liability settlement or to  consider  offset
claims,   and  that  the  reduction is required  under  statutory
limits  regarding UIM recovery.  We need not address the  precise
question  of  whether the arbitration panel had the authority  to
consider the effect of the $50,000 settlement because we conclude
that  the arbitration panel determined a single issue  the amount
of  Sidneys total damages  that did not require nor implicate the
panels consideration of any offsets or reductions.
          Arbitrators  are afforded broad discretion  to  fashion
remedies,23   and  we  recognize  that  courts  considering   the
arbitrability  of  offsets and reductions have  routinely  upheld
arbitrators  authority  to  determine  these  issues  in  similar
          contexts.24  In Wing v. GEICO Insurance Co.25 we held that where an
insurance  policy granted the arbitration panel the authority  to
determine the amount payable under the policy, the panel properly
adjusted the preliminary award downward by providing for  offsets
of  the  insurers previously awarded damages. But  we  have  also
expressed deference to arbitrators determinations of the issue(s)
before  them and held that an arbitrators interpretation  of  the
question  presented  .  . . should not be  subjected  to  plenary
review.26  We therefore accord arbitrators interpretations of the
issues significant weight.27
          Generally, the terms of the endorsement are controlling
in  the  determination  of  what matters  or  issues  are  to  be
submitted  to  arbitration between the insured claimant  and  the
insurance   carrier,  except  as  mandated  by  statute   or   by
regulation.28  The UIM insurance provision of the Allstate policy
provides: [T]he right to benefits and the amount payable will  be
decided by agreement between the insured person and Allstate.  If
an  agreement  cant  be reached, the decision  will  be  made  by
arbitration.   The  policy later provides that [i]f  the  insured
person  or  we  dont agree on that persons right to  receive  any
damages  or the amount . . . the disagreement will be settled  by
arbitration.   (Emphasis added.)  The language  of  the  Allstate
policy  grants  the arbitration panel authority to determine  two
different and distinct concepts: (1) the total amount of  damages
to  which  an insured is entitled (from the tortfeasor)  and  (2)
amounts  payable under the insurance policy (by the UIM insurer).
While  these  policy  terms are related, they  are  not  mutually
          In  her  appeal,  Sidney conceded (as she  did  in  her
arguments before the arbitration panel) that [t]he only issue  to
be  determined at arbitration was Sidneys damages resulting  from
the January 13, 2000 car wreck.  In her arbitration brief, Sidney
asserted that the sole issue for the panel to determine  is  that
of  damages.  How much.  Neither party contends  that  the  panel
considered   or  was  asked to consider  the amount  of  benefits
payable   (or   amounts  payable)  under  the  Allstate   policy.
Moreover, the panels award plainly stated that Joanne Sidney  has
been  damaged  and  is entitled to an award  of  damages  .  .  .
[totaling] $118,432.
          The  scope  of  the  panels award  was  confined  to  a
determination  of  damages that did not require consideration  of
any alleged offsets.30  And unlike in Wing v. GEICO Insurance Co.,31
where we held an arbitration panel had acted within its authority
in  reducing  a  partys award following receipt  of  briefing  on
costs,  fees,  and  offsets, here it appears  the  panel  neither
invited briefing on nor was asked to consider any such issue.
          While the panel may very well have had the authority to
consider the effect of the $50,000 settlement on Sidneys  damages
awards,  it did not do so in this case.  As a result, we conclude
that Allstate did not waive its right to assert this issue.32
          Moreover, the trial courts reduction was plainly proper
in  light  of the UIM statutory framework, the purpose underlying
UIM coverage, and the plain terms of the Allstate policy.  Alaska
Statute  28.20.445(e)(1) provides that underinsured coverage  may
          not apply . . . until the limits of liability of all bodily
injury  and  property damage liability bonds  and  policies  that
apply have been used up by payments, judgments or settlements . .
.  .   And AS 28.20.445(a)(1) provides that the maximum liability
of  a UIM carrier is the lesser of (1) the difference between the
amount  of the covered persons damages . . . and the amount  paid
to  the  covered person by or for a person who is or may be  held
legally  liable for the damages; and (2) the applicable limit  of
liability  of  the uninsured and underinsured motorist  coverage.
Allstates policy mirrors this same language:
          [Allstates]  limit of liability will  be  the
          lesser of:
               1.    The  difference  between  the
               amount   of   an  insured   persons
               damages  . . . and the amount  paid
               to  that  insured person  for  such
               damages, by or for a person who  is
               or  may be held legally liable  for
               damages     .     .      .      and
               2.    The   applicable   limit   of
               liability for this coverage.
The  Allstate policy further notes that amounts payable under the
policy  apply over and above any amounts available to the insured
person  . . . [b]y or for a person who is or may be held  legally
liable  for  damages.  This language makes clear  that  Allstates
maximum  liability in this case is the difference between Sidneys
total damages  $118,432   and the amount previously satisfied  by
the Safeco settlement  $50,000.
          It  would  be  unreasonable  to  conclude  that  Sidney
incurred  damages  of $118,432, but that upon exhausting  $50,000
policy  limits  she was entitled to a UIM award  that  failed  to
reflect her receipt of the underlying benefits. It would also run
counter  to  Alaskas  excess  approach  to  UIM  coverage.33   We
therefore affirm the superior courts decision to reduce Allstates
payment by the amount of the liability settlement.
     B.   Allstate Is Not Estopped from Reducing Its UIM  Payment
          by the $25,000 Medical Payments Coverage.
          Sidney  alternatively contends that even if  the  court
could have reduced her award, Allstate is estopped from receiving
an offset of the $25,000 in medical payments coverage it provided
because  it never conceded those funds were an undisputed  aspect
of  Sidneys  damages  at  arbitration.   Allstate  responds  that
because  Sidney  is required to exhaust liability  policy  limits
before  pursuing UIM benefits, and because the $25,000 in medical
payments  is  part  of  the  underlying $50,000  settlement,  the
medical payments are a necessary component of Sidneys UIM  claim.
We conclude that Sidneys argument fails.
          The elements of equitable estoppel are the assertion of
a  position  by conduct or word, reasonable reliance  thereon  by
another  party, and resulting prejudice.34  We have also  adopted
the doctrine of quasi-estoppel, which applies where the existence
of facts and circumstances makes the assertion of an inconsistent
position unconscionable.35  Sidney contends that allowing Allstate
          to offset the $25,000 in medical payments results in a windfall
to  Allstate  because there is no evidence that the past  medical
expenses  awarded  by  the arbitration panel  are  for  the  same
medical expenses Allstate originally paid.
          As  discussed above, Sidney is precluded from  pursuing
UIM  coverage unless and until she exhausts underlying  liability
policy  limits.    If Sidney had received $25,000  directly  from
Safeco  and  nothing more, she would have failed to  exhaust  the
policy  limits and would be precluded from pursuing UIM  coverage
altogether.   But  Safeco assumed responsibility  for  satisfying
Allstates  subrogated  claim, and in  so  doing  the  $25,000  in
medical  payments  became  a requisite  element  of  Sidneys  UIM
coverage  claim.  We  therefore  reject  Sidneys  argument   that
Allstate  is not entitled to offset the $25,000 it paid  for  her
medical expenses.36
     C.   Sidney  Is  Not  Entitled to Prejudgment  Interest  and
          Attorneys  Fees  on  the $50,000 Settlement,  with  One
          1.   Sidney  was not underinsured as to add-ons to  the
               Safeco policy.
          Allstates cross-appeal contends that the superior court
erred  in  ordering  it  to pay Sidney prejudgment  interest  and
attorneys  fees  on the underlying $50,000 liability  settlement.
Allstate  makes a number of arguments in support  of  its  claim,
including  that  (1) the add-ons are amounts  payable  under  the
Safeco  liability  policy  and are therefore  excluded  from  UIM
recovery under Alaskas UIM statutory scheme; (2) allowing  Sidney
to recover these sums undermines the purpose of UIM coverage; and
(3)   allowing   claimants  to  recover   add-ons   under   these
circumstances will ultimately increase the cost of UIM insurance.
Sidney  responds  that  under Coughlin  v.  Government  Employees
Insurance Co. (GEICO)37 and the UIM statutory framework,  she  is
entitled to recover add-ons on the settlement from Allstate.  For
the  reasons set forth below, we reject her argument and  reverse
the award of add-ons in all but one respect.
          In  Coughlin  we  concluded that costs,  interest,  and
attorneys  fees  are  not to be included in  determining  whether
policy limits have been exhausted for the purpose of drawing upon
underinsured  motorist  coverage in deciding  that  a  party  had
exhausted a $50,000 liability policy where the party settled with
the liability insurer for $40,000 plus the insurers assumption of
a  $10,000  medical  lien.38  We noted that  while  add-ons  were
incorporated  into  overall  policy limits  to  the  extent  that
insurers were legally obligated to pay [them], they did not  bear
on  the  question of whether the limits of liability . .  .  have
been  used  up  for  the  purposes of triggering  the  exhaustion
statute.39  That statute, AS 28.20.445(e)(1), provides  that  UIM
coverage  may  not  apply until the limits of  liability  of  all
bodily  injury and property damage liability bonds  and  policies
that   apply  have  been  used  up  by  payments,  judgments   or
settlements.  We looked to the purposes of the statute  to ensure
that UIM coverage is secondary rather than primary coverage while
at  the  same  time  making the benefit of UIM  coverage  broadly
available   in  deciding  that limits of liability  meant  facial
          coverage and not add-ons.40  Thus, policy limits were exhausted
for the purposes of pursuing UIM coverage when the face value  of
the policy was satisfied, independent of any additional attorneys
fees or prejudgment interest.41
          The  question  in  Coughlin  concerned  what  threshold
triggered  a  UIM providers obligation to provide  benefits,  not
what   amounts  are  payable  once  UIM  coverage  is  triggered.
Contrary  to  Sidneys contention, Coughlin is not dispositive  of
the  question presented here: whether an insured who exhausts the
facial  limits  of  the  underlying policy  is  entitled  to  UIM
benefits  for amounts that were otherwise recoverable  under  the
liability  policy in the first instance.  This issue is  governed
by AS 28.20.445(b), which provides:
          An  amount  payable under the  uninsured  and
          underinsured  motorist  coverage   shall   be
          excess  to an amount payable under automobile
          bodily  injury,  death, or  medical  payments
          coverage . . . and may not duplicate  amounts
          paid  or  payable under valid and collectible
          automobile bodily injury [coverage] . . . .
(Emphasis added.)
          Unlike subsection .445(e)(1), subsection .445(b) speaks
of  amounts payable rather than limits of liability, a difference
that  may be readily understood when considered in light  of  the
purpose of UIM insurance. Alaskas UIM coverage is premised on the
notion  that an injured party may be entitled to UIM coverage  to
the  extent that the tortfeasors liability insurance coverage  is
insufficient to compensate the injured person fully  for  [their]
loss  .  .  .  .42   As  aptly  noted  by  one  commentator,  the
[f]undamental   characteristic  of  the   undeirnsured   motorist
insurance  is  that  it  is only relevant  when  the  tortfeasors
insurance  is  not adequate to provide indemnification.43   Thus,
where  a  liability  policy provides coverage  for  add-ons,  the
amounts  payable  may  be  greater than  the  policys  limits  of
liability (as defined in Coughlin to equal facial limits).44
          Allstate notes that the use of the term amounts payable
in  subsection .445(b) indicates that coverage provided by a  UIM
insurer  will  be over and above any amounts available  under  an
underlying  liability  policy, and that here,  because  attorneys
fees  and  interest  were available to Sidney  under  the  Safeco
policy,  Allstate  is not liable for those  sums.   The  Allstate
policy  includes language similar to that provided in  subsection
.445(b):  Any  amounts otherwise payable for damages  under  this
coverage shall apply over and above any amounts available to  the
insured person because of the bodily injury . . . [b]y or  for  a
person who is or may be held legally liable for damages.45   Both
the  Allstate  policy  and the statutory language  in  subsection
.445(b)  contemplate that amounts available to Sidney  under  the
Safeco liability policy may be broader than the policys limits of
liability as interpreted in Coughlin.  That we interpreted limits
of  liability to exclude add-ons in determining when a  liability
policy is exhausted does not lead to the conclusion that the same
definition applies in the context of determining what amounts are
          It  is  important  to  note that the  Safeco  liability
policy  is absent from the record.  In its cross-appeal, Allstate
notes that Sidney admits prejudgment interest and attorneys  fees
were  available to her under the Safeco policy.  Sidney does  not
dispute  Allstates  allegation on this point  but  responds  that
[Allstate]  offered  no  evidence  that  the  tortfeasor   policy
includes interest as part of the facial value of the policy.   We
conclude   that   Sidneys  failure  to  directly   dispute   that
prejudgment  interest and attorneys fees were  available  to  her
under  the  Safeco policy,47 her election to forgo those  amounts
when  she  settled, and the plain language of  the  Allstate  UIM
policy  support  the conclusion that Sidney is  not  entitled  to
recover  add-ons  on  her  liability  settlement  from  Allstate.
However,  nothing  in  our conclusion alters Coughlins  threshold
determination of when UIM coverage may be pursued.48
          Because  Sidney  was  entitled to pursue  add-ons  from
Safeco  but elected not to do so, she is not underinsured  as  to
those  amounts.49   To  conclude  otherwise  would  conflate  the
purposes of primary liability and UIM insurance and award  Sidney
sums  she  elected  to forgo in her choice to settle  for  facial
policy limits.  Allowing Sidney to recover all of the add-ons  at
issue  from  Allstate  would  permit  Sidney  to  render  herself
artificially underinsured as to those amounts and force  Allstate
to  provide for overlapping coverage of select amounts where none
should exist.50  It also awards her prejudgment interest on  sums
which she never lost the use of in the first instance.51  Because
Sidney was not underinsured with respect to the sums at issue, we
conclude that with the one exception discussed below, she is  not
entitled to UIM recovery of those amounts.52
          2.    Sidney  is  entitled  to  a  pro  rata  award  of
attorneys fees and costs                from Allstate.

          While  we  conclude  that Sidney  is  not  entitled  to
receive from her UIM carrier add-ons to the liability settlement,
we  also  recognize  that  in pursuing the  liability  settlement
Sidney  procured a direct benefit for Allstate.  Is she  entitled
to a pro rata award of attorneys fees and cost for this work?  We
conclude that she is.
          In Cooper v. Argonaut Insurance Co.,53 we interpreted a
workers  compensation statute as providing that, where an injured
employee is ordered to reimburse compensation as the result of  a
third-party recovery against a tortfeasor, the amount  reimbursed
must  be  reduced  by  a  pro rata share of  the  attorneys  fees
incurred  by  the  injured  employee in  recovering  against  the
tortfeasor.54   In  Cooper, appellants husband was  killed  while
working  and  appellant  was paid workers  compensation  benefits
through   her   husbands  employers  insurer,  Argonaut.    After
appellant  filed  suit against a third-party tortfeasor  and  the
case  settled,  Argonaut sued Cooper to  recover  the  amount  of
benefits  paid.55   On appeal, we required a deduction  from  the
amount Cooper had to reimburse Argonaut to reflect the litigation
expenses  Cooper  incurred  that were attributable  to  Argonauts
share of the recovery.  In so holding, we recognized that if  the
          employer (or the insurance carrier) were not required to pay its
pro  rata share of litigation expenses, the entire burden of  the
litigation would be borne by the employee and [t]he carrier would
take  the  benefit  of the employers premium  and  the  employees
litigation effort.56
          We  later  discussed  this reasoning  in  another  case
affirming application of the common fund doctrine, which provides
that  a  litigant or lawyer who recovers a common  fund  for  the
benefit  of persons other than himself or his client is  entitled
to a reasonable attorneys fee from the fund as a whole.57 We noted
that  one  rationale underlying the common fund doctrine  was  to
avoid  unjust  enrichment58  and stated  that  the  doctrine  was
implicated  any time one litigants success releases  well-defined
benefits for a limited and definable group of others.59
          Our review of the record and our case law on this issue
convinces  us that  the rationale underlying these cases  applies
equally  to  the  facts  presented  here.   While  neither  party
addressed this issue below, the parties disputed who was entitled
to  add-ons  on  the  $25,000 medical  payments  portion  of  the
liability  settlement  and  the  superior  courts  award  invokes
analogous  case  law on this same subject.  Judge Gleasons  order
awarding  Sidney add-ons noted that her decision  was  consistent
with  the  supreme courts analysis in this area as set  forth  in
both Coughlin v.  Government Employees Insurance Co.60 and Ruggles
v. Grow.61
          While  Ruggles does not specifically address the common
fund  doctrine, it does discuss an insureds right to recover fees
incurred  in  pursuing  and recovering  her  insurers  subrogated
          When an insurer pays expenses on behalf of an
          insured  it  is  subrogated to  the  insureds
          claim.   The insurer effectively receives  an
          assignment of its expenditure by operation of
          law  and  contract.  If the insurer does  not
          object,   the   insured   may   include   the
          subrogated claim in its claim against a third-
          party  tortfeasor.   Any  proceeds  recovered
          must  be  paid to the insurer, less pro  rata
          costs  and  fees incurred by the  insured  in
          prosecuting and collecting the claim.[62]
We  therefore  conclude that Sidney is entitled to  recover  from
Allstate  a  pro rata share of the expenses she incurred  seeking
recovery from Safeco.

     D.   The  Superior  Court Correctly Refused To Award  Sidney
          the Costs of the Arbitration Proceeding.
          Sidney next appeals the superior courts decision not to
award her the costs  she incurred in arbitration.  But Sidney did
not  request  an award of costs from the arbitration  panel,  and
instead asked for arbitration costs in her April 2005 motion  for
summary  judgment.  The superior court rejected  Sidneys  request
because she failed to pursue costs before the arbitration panel.
          Because Allstate informed Sidney that it would  seek  a
          trial de novo as provided for under the terms of its contract,63
Sidney  claims  that (1) the arbitration panel  may  have  lacked
jurisdiction to determine costs, (2) Allstates ultimate  decision
not  to  proceed  with a trial cannot be used  to  prejudice  her
decision  not  to requests costs from the panel,64  and  (3)  the
superior   court  had  the  authority  to  enter  an  award   for
arbitration   costs.   But  there  is  nothing  to  support   her
suggestion  that Allstates actions somehow prevented Sidney  from
seeking costs from the arbitration panel.
          Alaska  Statute 09.43.100, which provides for fees  and
expenses  of arbitration, states that [u]nless otherwise provided
in the agreement to arbitrate, the arbitrators expenses and fees,
together  with  other  expenses,  not  including  counsel   fees,
incurred  in  the conduct of the arbitration, shall  be  paid  as
provided  in  the award.  The Allstate policy states  that  [a]ll
expenses  and fees, not including counsel fees or adjuster  fees,
incurred  because of arbitration, will be paid as  determined  by
the  arbitrator.  The panels award ordered Allstate  to  pay  the
arbiters fees and stated that the parties can submit motions  for
attorneys  fees  and  costs, if necessary.  Thus,  regardless  of
Allstates actions in deciding whether to pursue a trial de  novo,
Sidney  had the duty to seek the costs of the arbitration if  she
wished to obtain them.  But Sidney failed to submit a motion  for
costs to the panel.
          Moreover,  the  statutes that  Sidney  relies  upon  to
assert  that the trial court could independently award the  costs
of  the  arbitration  are inapposite.  Alaska  Statute  09.43.170
grants  the courts jurisdiction to enforce arbitration agreements
and to enter judgment on an award, but does not grant independent
jurisdiction to award costs where a party has failed  to  request
them  from the arbitrator.  Alaska Statute 21.89.020(f)(1) merely
provides that arbitration expenses incurred in insurance disputes
shall  be paid as determined by the arbitrator.  Neither  statute
mandates  the courts award of costs here.  The trial court  ruled
that where a party desires costs associated with the arbitration,
it  is  incumbent  on the party to move for  them.   This  Sidney
failed to do.  We therefore affirm the superior courts refusal to
award Sidney her costs of arbitration.
     E.   Prevailing Party Status and the Courts Refusal To Award
          Sidney Enhanced Attorneys Fees
          1.   Costs of the confirmation proceeding
          Sidney  next  argues  that the  trial  court  erred  in
failing to award her the costs of the confirmation action in  its
August  10,  2005 final judgment.  But the courts  amended  final
judgment,  entered  pursuant to the parties stipulation,  did  in
fact  award  Sidney the costs of the confirmation proceedings  in
the  amount  of $503.38.  However, because we vacate  the  courts
order finding Sidney to be the prevailing party in this case,  we
vacate  the courts award of the costs of the confirmation  action
to  Sidney and remand for a new determination of prevailing party
status as set forth below.
          2.   Prevailing party status
          Allstate  contends  that even if  the  court  correctly
          decided summary judgment in Sidneys favor, and Sidney was held to
be  entitled  to  add-ons on the full amount of  the  arbitration
award,   the  superior  court  erred  in  its  determination   of
prevailing party status.  The superior court found Sidney  to  be
the prevailing party and awarded Sidney attorney fees in both its
original  final  judgment  and in the  subsequent  amended  final
judgment.  Because we reverse the superior courts order  awarding
Sidney  all of her requested add-ons on the liability settlement,
we vacate the courts determination that Sidney was the prevailing
party  and the award of attorneys fees in her favor.65  On remand
the  superior court should determine who is the prevailing  party
in this action and award attorneys fees accordingly.66
          3.   The  superior  court did not err  in  refusing  to
               award Sidney enhanced attorneys fees.
          Sidneys  final  argument is that  the  court  erred  in
awarding  her  attorneys fees under the deficiency without  trial
schedule  of Civil Rule 82(b)(1) rather than awarding her  actual
fees  under  Rule 82(b)(3).  In her reply brief she alternatively
contends  that the court should have followed Rule  82(b)(2)  and
awarded her a certain percentage of her actual fees.  She  claims
that  full fees were proper here because of the intricacy of  the
legal  issues,  the length in time between the arbitration  award
and  final  judgment, the amount of time invested  in  the  case,
Allstates erroneous briefing, and the utility of our decision  in
setting  precedent  for  future calculation  of  UIM  arbitration
          But  while Sidney requested full attorneys fees in  her
motion  to  the  superior court, she did so  in  a  one  sentence
statement:  Plaintiff requests an award for her actual  attorneys
fees  and  costs.  She provided no justification for varying  the
presumptive  fee award, offered no authority in  support  of  her
argument, and pointed to no authority in support of her  request.
Not  until filing her reply to Allstates opposition to her motion
for  attorneys fees did she articulate a basis for departing from
Rule  82(b)(1) or raise any arguments in support of her original,
cursory  statement  on this issue.  In light of  her  failure  to
sufficiently raise this issue, we conclude her argument  on  this
point is waived.67
          The  arbitration panel determined the total  amount  of
damages Sidney incurred as a result of her accident, but was  not
asked  to  consider or weigh the applicability  of  any  offsets.
Under  Alaskas statutory UIM scheme, Allstate as the provider  of
underinsured motorist coverage is liable for only that portion of
damages  in  excess  of available liability  insurance.   Because
Sidney   had   already  received  the  benefit  of  the   $50,000
settlement,  we  AFFIRM the superior courts  decision  to  reduce
Allstates payment by $50,000.  But because she elected  to  forgo
payment of additional prejudgment interest and attorneys fees  on
that  amount,  we  REVERSE  in all but  one  respect  the  courts
decision  requiring  Allstate  to pay  add-ons.   Because  Sidney
procured a benefit for Allstate in entering into settlement  with
Safeco,  we  hold  that she is entitled to a pro  rata  share  of
          attorneys fees from Allstate.  We REMAND this issue to the
superior court for a determination of the amount of this pro rata
          Because   Sidney  did  not  seek  the  costs   of   the
arbitration  before the arbitration panel, we  AFFIRM  the  trial
courts refusal to award Sidney the costs of the arbitration.
          Finally,  we  VACATE  the  award  of  prevailing  party
attorneys  fees  and REMAND the issue to the superior  court  for
determination of prevailing party in light of todays opinion.

     1     The  award  included $33,432 for past  economic  loss;
$10,000  for  future economic loss; $65,000 for past non-economic
loss; and $10,000 for future non-economic loss.

     2     Allstate  forwarded one check of $70,617.12  (equaling
the  first  $50,000 of its payment plus prejudgment interest  and
attorneys fees) from Sidneys automobile policy and one  check  of
$25,110.70  (the  remaining $18,432 of its $68,432  payment  plus
prejudgment interest and fees) from her PUP policy.

     3    69 P.3d 986, 991-92 (Alaska 2003).

     4    984 P.2d 509, 512 (Alaska 1999).

     5     Grace v. Ins. Co. of N. Am., 944 P.2d 460, 464 (Alaska

     6    Id.

     7     2  Alan  I. Widiss & Jeffrey E. Thomas, Uninsured  and
Underinsured Motorist Insurance  26.2 at 457 (3d ed.  2005)  (The
grounds  for  a  modification  or  correction  by  a  court   are
relatively  narrow  and are specifically limited  so  as  not  to
impinge on matters which go to the merits of an award.).

     8     AS   09.43.120 provides a limited set of circumstances
under which the court shall vacate an award, including where  the
award  was  procured  by fraud. AS 09.43.130 provides  that  upon
application  within ninety days of delivery  of  the  award,  the
court  shall modify or correct the award if there was an  evident
miscalculation or evident mistake in the subject  of  the  award,
the  arbitrators  exceeded their authority  and  awarded  upon  a
matter  not  submitted to them, or the award is  imperfect  in  a
matter of form.

     9     Univ.  of  Alaska  v. Alaska Cmty.  Colleges  Fedn  of
Teachers, Local 2404, 64 P.3d 823, 825 (Alaska 2003).

     10    State Farm Mut. Auto. Ins. Co. v. Dowdy, 111 P.3d 337,
340 (Alaska 2005).

     11     Kinn v. Alaska Sales & Serv., Inc., 144 P.3d 474, 482
(Alaska 2006).

     12    Falconer v. Adams, 974 P.2d 406, 410 n.2 (Alaska 1999).

     13    Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235,
1237-38 (Alaska 2001).

     14     Progressive Ins. Co. v. Simmons, 953  P.2d  510,  512
(Alaska  1998)  (quoting  Guin v. Ha, 591  P.2d  1281,  1284  n.6
(Alaska 1979)).

     15    Cole v. Bartels, 4 P.3d 956, 958 (Alaska 2000).

     16     Alaska Constr. & Engg, Inc. v. Balzer Pacific  Equip.
Co., 130 P.3d 932, 935 (Alaska 2006).

     17    Bromley v. Mitchell, 902 P.2d 797, 804 (Alaska 1995).

     18    Alderman v. Iditarod Props., 104 P.3d 136, 140 (Alaska

     19    Simmons, 953 P.2d at 514.

     20    Id. at 517.

     21    AS 28.20.445(e)(1).

     22     Coughlin v. Govt Employees Ins. Co. (GEICO), 69  P.3d
986, 988-89 (Alaska 2003).

     23     Alaska  Pub. Emloyees Assn. v. State Dept  of  Envtl.
Conservation, 929 P.2d 662, 666 (Alaska 1996).

     24     See Klimek v. Horace Mann Ins. Co., 14 F.3d 185,  189
(2d  Cir.  1994) (under broad arbitration clause insurers  offset
claims should be decided by arbitrators along with other defenses
of  insurer  to  its  duty  to provide  coverage);  Zimmerman  v.
Illinois  Farmers Ins. Co., 739 N.E.2d 990, 996 (Ill. App.  2000)
(where  parties agreed to submit amount of payment which  may  be
owing  under  this coverage to arbitration, insurer  required  to
submit  setoff and other issues); Cole v. Inland Natl  Ins.  Co.,
273  N.E.2d  65, 68 (Ill. App. 1971) (insurer required  to  raise
setoff  argument  during  arbitration to  avoid  waiver);  In  re
Liberty  Mut. Ins. Co. v. Tetteh, 277 A.D.2d 239, 240 (N.Y.  App.
Div.  2000)  (extent  of insurers liability and  availability  of
offsets in UIM arbitration matter determined by arbitrator).  But
see  Assicurazioni Generali, S.P.A. v. Clover, 195 F.3d 161,  165
(3d  Cir. 1999) (issue of UIM coverage and setoff not subject  to
arbitration  under  clause  permitting  arbitration  of   damages

     25    17 P.3d 783, 786-87 (Alaska 2001).

     26    Dept of Pub. Safety v. Pub. Safety Employees Assn., 732
P.2d 1090, 1096 (Alaska 1987); see also id. at 1096 n.8 ([I]f the
arbitrator  had  adhered  to  a  strict  interpretation  of   the
submitted  issue and limited its interpretation  [to  a  solitary
issue] we would likewise defer to this construction of the  issue
for  arbitration.);  Sea Star Stevedore  Co.  v.  Intl  Union  of
Operating  Engrs,  Local  302, 769 P.2d 429,  431  (Alaska  1989)
(noting  arbitrator does not have authority to  reach  merits  of
grievance not submitted).

     27     Sea  Star Stevedore Co., 769 P.2d at 431 n.7 (quoting
Pub. Safety Employees, 732 P.2d at 1097).

     28     8  Patrick  D. Kelly, Blashfield Automobile  Law  and
Practice  332.6 at 381 (3d ed. 1987).

     29    See Zimmerman v. Illinois Farmers Ins. Co., 739 N.E.2d
990, 995 (Ill. App. 2000) (discussing distinction between damages
and   payment  and  noting  insured  entitled  to  damages   from
tortfeasor, but payment from UIM insurer).

     30     While the arbitration demand charging the panel  with
the  issue(s) to be addressed at the hearing is absent  from  the
record, our review of the record as a whole readily supports this

     31    17 P.3d 783, 786-87 (Alaska 2001).

     32    We  recognize  that other courts have  held  where  an
arbitrator  had broad authority under the contract,  the  parties
were  obligated  to raise any offset claims.  See Zimmerman,  739
N.E.2d  at 992 ([P]arties may not subvert the arbitration process
by  failing to raise a matter which falls within the ambit of the
issues  submitted, then later asking the court to  determine  the
matter in a subsequent proceeding.) (quotations omitted).

     33     Excess  coverage . . . strives to provide  additional
coverage,  as needed to fully compensate injured motorists  after
available  liability  coverage  has  been  completely  exhausted.
Curran  v.  Progressive Nw. Ins. Co., 29 P.3d  829,  832  (Alaska

     34     Maynard v. State Farm Mut. Auto. Ins. Co.,  902  P.2d
1328,  1330  (Alaska  1995) (quoting Jamison v.  Consol.  Utils.,
Inc., 576 P.2d 97, 102 (Alaska 1978)).

     35    Jamison, 576 P.2d at 102.

     36     In  addition,  Sidney  has  not  provided  sufficient
evidence to support her estoppel claim.  She provides no evidence
that  she relied on Allstates position or that she did so to  her
detriment, and offers no support for her argument that an insurer
must  concede  medical  payments are an undisputed  aspect  of  a
partys  damages in order to later receive a credit or offset  for
an  initial payment of benefits.  Cf. Jamison, 576 P.2d at 102-03
(discussing relevant criteria for quasi-estoppel claim, including
whether  party  asserting inconsistent position gained  advantage
through  first  position,  magnitude  of  inconsistency,  changed
circumstances, whether inconsistency was relied on  by  party  to
his  detriment,  and  whether  first  assertion  made  with  full
knowledge of facts).

     37    69 P.3d 986 (Alaska 2003).

     38    Id. at 989.

     39    Id. at 991.

     40    Id.

     41    Id. at 992.

     42     Progressive Ins. v. Simmons, 953 P.2d  510,  517  n.6
(Alaska 1998) (emphasis added) (quoting State Auto. Mut. Ins. Co.
v. Youler, 369 S.E.2d 737, 748 (W. Va. 1990)).

     43     2  Alan  I. Widiss & Jeffry E. Thomas, Uninsured  and
Underinsured Motorist Insurance   26.2 at 457 (3d ed. 2005).

     44    See Coughlin, 69 P.3d at 991-92.

     45     Allstate notes that Sidneys personal umbrella  policy
does  not  contain UIM coverage but concedes that under our  case
law,  the  terms  of  coverage  are  provided  by  statute.   See
Holderness  v.  State Farm Fire & Cas. Co., 24  P.3d  1235,  1241
(Alaska 2001).

     46    See Coughlin, 69 P.3d at 992.

     47     There  is  no indication that Sidney, as the  injured
party  who  settled  with  Safeco, did not  have  access  to  the
complete  terms of the Safeco policy.  But she has wholly  failed
to  dispute Allstates allegation or directly claim that the  add-
ons  were unavailable to her under the Safeco policy.   See State
v.  ONeill Investigations, Inc., 609 P.2d 520, 528 (Alaska  1980)
(Failure to argue a point constitutes abandonment of it.).

     48    Under our holding today, a party pursuing UIM coverage
is  required  to  do nothing more or less than what  is  required
under  Coughlin: exhaust facial policy limits.  Whether  she  (1)
exhausts the underlying policy via settlement for facial  limits;
(2)  exhausts  the  underlying policy via settlement  for  facial
limits  and  add-ons;  or  (3)  proceeds  to  trial,  receives  a
favorable verdict, and recovers full policy limits plus  add-ons,
she  is in the same position to the extent that in each situation
she  is then eligible to pursue UIM recovery.  The difference  is
that in the first scenario, the insured forfeited recovery of add-
ons.   But in all cases, the UIM coverage is triggered the moment
facial limits are exhausted.

     49     See State Farm Mut. Auto. Ins. Co. v. Lestenkof,  144
P.3d 504, 509 (Alaska 2006) (holding that UIM provider not liable
for fees where party not underinsured as to those amounts).

     50     A  party cannot create an underinsured situation upon
accepting  a less than liability limits settlement in  an  amount
under  the  victims  own policy coverage.  8  Patrick  D.  Kelly,
Blashfield Automobile Law & Practice  315.4 at 550 (3d ed. 1987).

     51     Prejudgment interest is awarded to compensate a party
for  the  loss of use of money.  Liimatta v. Vest, 45  P.3d  310,
321(Alaska  2002).   Nowhere  does Sidney  assert  that  she  was
deprived of the use of the $25,000 in medical payments such  that
an award of prejudgment interest on this amount is proper.

     52     Sidney  contends that the court applied an  incorrect
prejudgment interest rate when calculating the amount of  add-ons
due  on  the liability settlement.  Because we decide that Sidney
is  not entitled to recovery of prejudgment interest in the first
instance, we do not address this argument.

     53    556 P.2d 525 (Alaska 1976).

     54    Id. at 525-26.

     55    Id. at 526.

     56    Id. at 527.

     57    Edwards v. Alaska Pulp Corp., 920 P.2d 751, 754 (Alaska
1996)  (quoting  Boeing  Co. v. Van Gemert,  444  U.S.  472,  478

     58    Id. at 754.

     59    Id. at 755.

     60    69 P.3d  986, 991-92 (Alaska 2003).

     61    984 P.2d 509, 512 (Alaska 1999).

     62    Id. at 512 (emphasis added and citations omitted).

     63     The  trial  de  novo clause in the Allstate  contract
provides  that  when any arbitration award exceeds the  Financial
Responsibility limits in the State of Alaska, either party has  a
right   to   trial  on  all  issues  in  a  court  of   competent

     64     We decline Sidneys two-sentence invitation, contained
in  a footnote, to rule the trial de novo clause unenforceable as
a matter of law.  She did not raise this argument to the superior
court  and  has  further  failed to  give  the  issue  sufficient
attention to merit our appellate review.  See Adamson v. Univ. of
Alaska,  819 P.2d 886, 889 n.3 (Alaska 1991) ([W]here a point  is
given  only  a  cursory statement in the argument  portion  of  a
brief, the point will not be considered on appeal.).

     65    See Romulus v. Anchorage Sch. Dist., 910 P.2d 610, 619
(Alaska 1996) (vacating attorneys fee award and remanding for new
determination of prevailing party status in light of decision  to
reverse superior court on issue of partys unpaid suspension).

     66     See  Day  v.  Moore, 771 P.2d 436, 437 (Alaska  1989)
(granting   superior  court  broad  discretion   in   determining
prevailing party).

     67     See  State Farm Auto. Ins. Co. v. Lawrence,  26  P.3d
1074,  1076 (Alaska 2001) (holding that party waived argument  by
failing to adequately address issue below);  Adamson, 819 P.2d at
889 n.3 (holding that where point given only cursory treatment in
argument  portion  of  brief, waiver not correctable  by  arguing
issue in reply brief).

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