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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jarvill v. Porky's Equipment, Inc. (08/01/2008) sp-6294

Jarvill v. Porky's Equipment, Inc. (08/01/2008) sp-6294, 189 P3d 335

     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 Nos. S- 12457/12527
Appellant and, )
Cross-Appellee, ) Superior Court No. 1SI-04-00220 CI
v. ) O P I N I O N
PORKYS EQUIPMENT, INC., and ) No. 6294 August 1, 2008
Appellees and )
Cross-Appellants. )

          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District,  Sitka,
          Larry C. Zervos, Judge.

          Appearances:   Brian  E.  Hanson,  Pearson  &
          Hanson   LLC,   Sitka,  for  Appellant/Cross-
          Appellee.   Robert S. Spitzfaden, Gruening  &
          Spitzfaden, APC, Juneau, for Appellees/Cross-

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

          FABE, Chief Justice.

          Gary  Jarvill alleges that a design defect in the  boat
he purchased from Porkys Equipment, Inc. caused it to sink in its
harbor  slip  less  than  three years  after  purchase.   Jarvill
appeals   the  superior  courts  ruling  that  the   statute   of
limitations  bars  his  product  defect  and  negligence  claims.
Because  the  evidence fails to support the trial courts  finding
that  Jarvills  cause  of  action accrued   and  the  statute  of
limitations  began to run  before the boat sank, we  reverse  the
trial  courts  dismissal on statute of limitations  grounds.   We
affirm the trial courts holding that Porkys employee, Todd  Haag,
acted as the companys agent in contracting to construct the  boat
for  Jarvill,  and  the trial courts admission of  evidence  from
Jarvills  marine surveyor regarding the boats allegedly defective
design and construction.
     A.   Facts
          Gary  Jarvill  teaches high school and runs  a  charter
fishing  business during his summer vacations.  In  the  fall  of
1999  he  began  looking  for a new  boat.   Jarvill  desired  an
aluminum  Packman  style boat of the type  built  by  the  Munson
Company  of Burlington, Washington.  The Munson Company, however,
could  not  make  delivery  quickly enough,  and  Jarvill  looked
          Jarvills son, an employee of Porkys, told him that  the
company had recently built a boat using a Munson design.  Jarvill
went  to  Porkys and spoke with Todd Haag, a foreman for  Porkys.
Haag  explained that he had the rights to build two Munson design
boats  in  exchange for work that his crew had done on  a  Munson
boat.   Haag had completed one of the boats for Porkys president,
Brian  Bickar, and Haag showed it to Jarvill.  Haag  and  Jarvill
discussed a list of specifications that Jarvill had written,  and
Haag told Jarvill that he could sell him a Munson design boat, on
which he had already begun construction.
          In  November  1999  Haag and Jarvill  agreed  that  for
$90,000  Haag would build a boat meeting Jarvills specifications.
To finalize the agreement, Jarvill wrote a check out to Todd Haag
for  $7,000.  In order to secure financing, Jarvill retained  Jim
Steffen,   a  boat  surveyor,  to  verify  the  boats  value   as
collateral.   Steffen surveyed the boat three  times  during  its
construction  and once after construction was complete.   Steffen
also performed a damage report after the boat, christened the Sea-
J, sank on January 5, 2003.
          Steffen   maintains  that,  from  the   beginning,   he
expressed concern that the 3/16" gauge aluminum sheeting  on  the
Sea-Js  hull  was too thin.  He testified that during  his  first
survey he discussed this concern with Haag.  This led Steffen  to
note in his first report, that [t]hough the hull shell plating is
light  for a vessel of this size, the framing schedule  has  been
tightened  up  in order to provide what appears  to  be  adequate
stiffness.  Steffen repeated this language in his second  report.
But as construction on the boat proceeded, it did not include the
internal  stiffening work that Steffen thought to  be  necessary.
In  his  third  report, Steffen wrote that the  hull  plating  is
considered adequate for structural appearances given the presence
of external hull stiffeners.
          Steffen testified that, before writing this report,  he
told  Jarvill  and  Haag  that he thought  the  boat  would  need
external  stiffeners because of the thin plating.  Haag  declined
to  mount external stiffeners on the boats frame, reasoning  that
he had adequately welded the hull for stiffness and that external
stiffeners  would rob the performance of the hull.  When  Steffen
conducted  a final in-water survey of the boat, he verified  that
the  hull  plating  was  adequate for  judicious  use  given  the
presence of external hull stiffeners.  Steffen testified that  he
knew,  however,  that Haag had not installed  any  external  hull
stiffeners on the boat.
          During  the night of January 5, 2003, about two  and  a
half years after its delivery, the Sea-J sank in its harbor slip.
Mr.  Steffen  surveyed  the  damage and  determined  that  stress
fractures on the bottom of the hull had caused the boat to  sink.
Steffen  detected no evidence of an impact in the affected  area,
and  concluded  that the [c]racks are due to  light  shell  plate
thickness  and  marginal internal framing, fatigued  by  stresses
encountered during normal vessel operations.
          On  January  30,  2003, Jarvill sent  Porkys  president
Brian  Bickar notice that the cause of the recent damage  to  the
vessel  Sea-J  which sank at the dock has been  attributed  to  a
manufacturing  defect.  A few days later, Bickar  wrote  back  on
behalf  of Porkys to explain that Todd Boats, rather than Porkys,
had  constructed  the  boat, and that Porkys  only  provided  the
location for the boat to be built in.  Bickar thus suggested that
Jarvill  contact Todd Haag.  He also offered to  mail  Jarvill  a
copy of the original survey done by Jim Steffen.
     B.   Proceedings
          On  November  17, 2004, Jarvill filed suit in  superior
court   against   Porkys  and  Haag,  claiming  product   defect,
negligence, breach of implied warranty, unfair trade or  business
practices, and breach of contract.  After motion practice, claims
of   product  defect,  negligence,  and  unfair  trade  practices
remained.   Starting  on February 7, 2006, Superior  Court  Judge
Larry C. Zervos held a bench trial.  After Jarvill presented  his
case,  Porkys moved under Alaska Civil Rule 41(b) to dismiss  all
counts,  arguing  that  the  statute of  limitations  barred  the
product  defect and negligence claims and that Jarvill failed  to
prove an unfair trade practices violation.
          The superior court denied Porkys motion, reasoning that
Jarvill did not know about the defective hull plating on the boat
until  it  sank.  Just before closing arguments, however,  Porkys
asked  the  court  to reconsider its ruling  on  the  Rule  41(b)
motion.  In the motion for reconsideration, the company presented
the  theory that Steffens knowledge of the defective hull  should
be  imputed to Jarvill because Steffen had inspected the boat  as
Jarvills  agent.   Because Steffen was aware that  Haag  had  not
installed  external  stiffeners or taken any  other  measures  to
compensate  for  the  thin hull plating, Porkys  argued,  he  had
notice of the boats alleged defect.  The court agreed, and  after
considering   additional  briefing  on  the  agency  relationship
between  Jarvill  and Steffen, it reversed its prior  ruling  and
held  that  the statute of limitations barred Jarvills negligence
and product defect claims.1
          Although the superior court did not reach the merits of
Jarvills  tort  claims, it found that Mr. Steffen knew  that  the
boat  was  defective on June 10, 2000 when he inspected  it  just
before  the  boat  was turned over to Mr. Jarvill  for  his  use.
Therefore, according to the trial court, the two-year limitations
period on Jarvills tort claims2 expired before the Sea-J sank  on
January 5, 2003.  Specifically, the trial court held that at  the
time of Steffens third inspection of the Sea-J he had information
sufficient  to alert a reasonable person to begin an  inquiry  to
protect his rights.3  The trial court reasoned that Steffen  knew
that  the  boat  was defective then, and that the boats  eventual
sinking   was  directly  related  to  the  defect  and  negligent
construction.   The  trial court concluded  that  [a]lthough  Mr.
Jarvills harm on June 10, 2000 was not as great then as it  would
be  when  the  boat  sank,  his agent  had  all  the  information
available  then  to  bring a suit on the theories  he  eventually
raised in this case.  Jarvill appeals.
          We  uphold  a  superior courts factual findings  unless
they are clearly erroneous, meaning that our review of the record
leaves us with a definite and firm conviction that a mistake  has
been  made.4  In reviewing a lower courts application of  law  to
undisputed facts, we apply our independent judgment.5  We  review
the  trial courts admission of opinion testimony under the  abuse
of discretion standard.6
     A.   The Superior Court Erred in Holding that the Statute of
          Limitations Barred Jarvills Tort Claims.
          Jarvill  had to file his tort claims of negligence  and
product   defect  within  the  two-year  statute  of  limitations
provided  in  AS  Jarvills boat sank  on  January  5,
2003, and he filed suit on November 17, 2004.  Under the two-year
limitations statute, Jarvills claim is timely unless  it  accrued
before November 17, 2002.8  Jarvill maintains that his claims did
not  accrue  until  the Sea-J sank on January  5,  2003.   Porkys
defends   the   superior  courts  determination   that   Steffens
inspection of the boat on June 10, 2000 triggered the limitations
period.   But  because the record indicates  that  Jarvills  tort
claims did not accrue until the boat sank, we reverse.
           Steffen  claimed at trial that he suspected  early  on
that Haag was using inappropriately thin sheet metal on the hull.
Steffen  testified that he expressed this concern to Jarvill  and
possibly to Haag after he performed his April 2000 survey.   Haag
reassured  Jarvill about the hull, telling him that the  external
stiffeners proposed by Steffen were unnecessary and would rob the
performance  of  the  hull.  In his next  report  in  June  2000,
Steffen wrote that [h]ull plating, considered light for a  vessel
of  this  size, is considered adequate for structural appearances
given the presence of external hull stiffeners.  Steffen declined
to make an express recommendation in the report that Haag install
external  stiffeners, even though he knew that Haag had not  done
so.   In  a subsequent survey report, after the boat was  in  the
water,  Steffen  again  concluded  that  the  hull  plating   was
considered adequate for judicious use given the presence of  hull
          The  superior court determined that Mr. Steffen did not
report  a defect that should have been reported.  It went  on  to
          Mr.  Steffen knew about the problems with the
          boat  on  June 10, 2000, and he knew  it  was
          defective  then.   The  cause  of  the  boats
          eventual sinking was directly related to  the
          defect  and negligent construction.  Although
          Mr. Jarvills harm on June 10, 2000 was not as
          great then as it would be when the boat sank,
          his  agent  had all the information available
          then  to  bring  a  suit on the  theories  he
          eventually raised in this case.
Therefore,   the  superior  court  concluded,  the   statute   of
limitations barred Jarvills claims.  We disagree.
          We have previously observed that the ordinary operation
of  the  statute of limitations looks to the date  on  which  the
plaintiff incurs injury.9  We have applied this rule literally to
bar  any action initiated more than two years after the plaintiff
or  his  insured property was tortiously damaged.10  And we  have
also  employed  the  discovery  rule  to  toll  the  statute   of
limitations  until  the claimant discovers, or reasonably  should
have  discovered, the existence of all elements essential to  the
cause  of  action.11   But the discovery rule  only  extends  the
statute of limitations; it does not shorten it.
          The  superior court chose June 10, 2000 as the date  of
Jarvills  injury for the purposes of his negligence  and  product
defect claims.  This marked the date of Jim Steffens third survey
of  the  Sea-J,  shortly  after Haag completed  construction  and
before the boat had entered the water.  But while Steffens survey
on  that  date  may have triggered the limitations period  for  a
breach  of  contract claim, we cannot agree that  the  underlying
injury  alleged in Jarvills product defect and negligence  claims
occurred  at  the  time of delivery.  Jarvills complaint  alleged
that  the  Sea-J  failed  to perform as  safely  as  an  ordinary
consumer  would  expect  when used in an intended  or  reasonably
foreseeable manner.  More specifically, it claimed that the  boat
failed  to  perform when the hull bottom surface cracked  causing
the boat to sink.  Nothing in the record suggests that the cracks
caused  by  the  boats alleged defect, or any  other  performance
failures, manifested themselves prior to the date that the  Sea-J
          To  the contrary, the Sea-J performed as Haag promised,
and  any  tortious  injury  to  Jarvill  remained  a  matter   of
speculation.  At the end of the boats first summer in the  water,
Jarvill collided with a log.  Worried that the collision may have
damaged  the  hull,  Jarvill  took  the  boat  to  Haag  for   an
inspection.   Haag repaired a dent in the hull.   He  filled  the
boat  with  water to check for leaks.  He detected  no  signs  of
          inadequacy in the Sea-Js hull plating, and he reported that the
Sea-J  didnt have any apparent leaks, and that he had  fixed  the
          Jarvill  further testified that he took  the  boat  out
frequently, but that he never had any indication that  the  Sea-J
was taking on water.  He testified that he took his family out in
the  Sea-J  over the Christmas holiday immediately prior  to  the
boats  sinking  on January 5 and that the Sea-J operated  without
any  sign of malfunctioning then.  Porkys intimates that  Jarvill
might  have  acted earlier to save the boat from sinking  on  the
night it went down.  But the company does not allege that Jarvill
should  have  discovered the stress fractures developing  on  the
hull  or  any other such performance failure during his operation
of the boat in the weeks and months preceding its submersion.
          Porkys  instead argues that Jarvill suffered the injury
of  receiving a defective boat, and that his agent, Steffen,  had
notice  of  that  injury.  Porkys argues that the discovery  rule
governs  Jarvills  claim, quoting our decision in  Johns  Heating
Service  v. Lamb:12 Injury often occurs simultaneously  with  the
corresponding act of negligence that causes it. However, when the
injury  is  not  apparent at the time of the negligent  act,  the
discovery rule applies.13  Porkys contends that Jarvill reasonably
should  have discovered14  all of the elements essential  to  his
negligence   and  products  liability  claims,  including   harm.
According to Porkys, Jarvills harm, as of June 2000, was the boat
was not serviceable which could be remedied by incurring the cost
to add external stiffeners.
          Porkys  reliance on Johns Heating Service is misplaced.
In  that  case, homeowners, the Lambs, sued Johns Heating Service
for  its alleged negligent failure to repair their furnace or  to
warn  them  that  it was leaking dangerous carbon monoxide  fumes
into their home.15  Johns Heating Service argued that the statute
of  limitations should bar the Lambs suit because they  filed  it
over  two  years after the company conducted its service  call.16
The trial court rejected the statute of limitations defense.   We
remanded, however, for a determination whether the Lambs knew  or
should have known that they were being exposed to carbon monoxide
as  early as [the date of the service call].17  We reasoned  that
summary  judgment on the statute of limitations question was  not
appropriate because Johns Heating Service had presented  evidence
that   the  Lambs  associated  the  malfunctioning  furnace  with
headaches  that they had been suffering, that after  the  service
call  the  furnace continued to blow soot through the house,  and
that a fuel smell persisted in the house.18
          Porkys  attempts  to  draw  a  parallel  between   this
evidence  and Steffens misgivings about the thin sheet  metal  on
the  Sea-Js  hull.  But such an analogy overlooks  a  more  basic
distinction between the cases.  Unlike the Lambs, Jarvill was not
harmed  by  the alleged tortious action in this case  until  long
after  he  had  completed his purchase.  The  essence  of  Porkys
argument then is that Jarvills cause of action accrued before all
of   its  essential  elements  had  ripened.   But  our  previous
decisions do not suggest such a rule.
          Although we have not decided a case precisely like this
          one, we have held that the limitations period in AS 09.10.070
ordinarily  begins  to  run on the date on  which  the  plaintiff
incurs injury.19  For example, in Austin v. Fulton Insurance Co.,20
we  held  that  claims against an insurer for negligence  in  not
issuing a policy covering earthquake loss did not ripen until the
quake  had  struck.  Therefore, the plaintiff had two years  from
the  time  of the earthquake to file under AS   More
generally,   we   have  held  that  [s]tatutes   of   limitations
prescribing  a relatively short period of time, as  AS  09.10.070
does, should be construed narrowly.22  And we have recognized that
while  the  defense of the statute of limitations is a legitimate
one,  it  is  not generally favored by the courts.23  Nothing  in
these cases suggests the peculiar rule that Porkys would have  us
apply to product defect and negligence claims.
          The case law from other jurisdictions further persuades
us  that  Porkys  argument must fail.  That  jurisprudence  makes
clear  that for a product defect claim like Jarvills, the statute
[of  limitations] starts to run and the cause of  action  accrues
when  the  injury or damage is suffered and not at  some  earlier
time  of sale, delivery, construction, installation, etc.24  This
follows from the very nature of the plaintiffs claim, because  if
no  damage resulted from defendants negligence, then there  would
be no right of action.25
          Porkys argues that Jarvill did suffer damages following
Steffens  June 2000 inspection, in the form of receiving  a  boat
that  was  not  serviceable.   But that  argument  conflates  the
analysis  of  Jarvills tort claims with that of  contract  claims
that  were resolved by the parties motion practice.  The date  of
Steffens June 10, 2000 inspection marks little more than Jarvills
acceptance  of the boats delivery.  Adopting that  event  as  the
trigger  for  AS  09.10.070 would lead us to  the  anomalous  and
grossly  unfair result of the statute being held to have run  and
the  bar  becoming  completed even before the  hapless  plaintiff
suffered injury or damage.26
           Thus, the superior court erred in determining that the
statute of limitations for Jarvills tort claims began to  run  at
the  time  of  Steffens  June 10, 2000  survey.   Haag  addressed
Steffens  concerns, assuring Jarvill that the Sea-J did not  need
external  hull stiffeners, which would merely rob the performance
of  the hull.  Jarvill proceeded to operate the Sea-J for two and
a  half  years without any sign of malfunctioning.   He  did  not
bring suit against Haag or Porkys during that time because he had
suffered no harm, at least none that was reasonably discoverable.
Because the record does not support Porkys statute of limitations
defense,  we  remand  for the superior court to  decide  Jarvills
negligence and product defect claims on the merits.  We next turn
to the superior courts determination that any liability attaching
to  Haag  for  his  construction of the Sea-J  should  extend  to
     B.   The  Superior  Court Did Not Err in Finding  that  Haag
          Acted  as Porkys Agent and Bound Porkys to the Contract
          with Jarvill.
          Porkys challenges the superior courts ruling that  Haag
          acted as the companys agent when he built Jarvills boat on Porkys
business  premises.  Porkys maintains that Todd  Haag  contracted
with Jarvill independently to build his boat, and that Haag acted
with  neither  actual  nor  apparent authority  to  bind  Porkys.
Therefore,  the  company argues, it had no duty to  Jarvill  that
might  serve as the basis for Jarvills tort claims.  The  record,
however, supports the superior courts determination that Haag had
at least apparent authority to bind Porkys.
          In   Cummins,  Inc.  v.  Nelson,27  we  observed  three
considerations   in   evaluating   apparent   agency:   (1)   the
manifestations of the principal to the third party; (2)  reliance
on  the principals manifestations by the third party; and (3) the
reasonableness  of  the  third  partys  interpretation   of   the
principals  manifestations and the reasonableness  of  the  third
partys  reliance.28  Here, the superior court found  that  Porkys
purchased  the  materials, records about the boat  were  kept  at
Porkys,  Porkys employees worked on the boat, the boat was  built
in  its  shop,  Porkys hoped to make a profit from the  boat  and
Porkys  billed  Mr.  Jarvill for extra work not  covered  by  the
original  price.   These  and other undisputed  facts  adequately
support  the  superior courts finding that Porkys  manifestations
led  Jarvill  to  believe that Haag was acting  as  the  companys
agent,   and   that   Jarvill   reasonably   relied   on    those
          In  Cummins,  we  held that a principals manifestations
may  be  directly  communicated to the third party  or  may  come
through  signs, advertising, authorization of an agent  to  claim
that  he  is authorized, or continuous employment of the agent.29
In Cummins, boat owners sued the manufacturer and local installer
of  an engine for damages arising out of its failure.30  The boat
owners  had initially called the manufacturer, which had provided
them with the phone number of the local installer.31  We upheld a
jury  award  based on apparent authority, noting that we  usually
reserve  for  the  trier of fact to decide whether  a  reasonable
person in the position of the third party would believe that  the
agent had the authority or the right to do a particular act.32
          Here,  the  principal directly employed  the  agent  it
seeks  to disclaim.  Jarvill testified that he believed  that  he
had  contracted with Porkys, rather than Todd Boats or any  other
independent company.  And this belief seems reasonable given that
Jarvill  first  discussed  the  boat  with  Haag  at  the  Porkys
warehouse,  where  Haag built the boat with  the  help  of  other
Porkys employees.
          Porkys  points  out that Steffens marine  surveys  list
Todd Boats as the boat builder and that Haag indicated to Steffen
that  he  was  the  boat  builder of record.   Moreover,  Jarvill
authorized  loan  disbursements directly to Haag  for  the  boat,
whereas  when  he had previously purchased services and  supplies
from  Porkys,33  he  paid the company directly  rather  than  any
individual employee.  Finally, Porkys argues that because Jarvill
only  discussed  the  boat contract with Haag,  not  with  Porkys
executives  Brian  and  Oliver Bickar, he cannot  claim  to  have
reasonably  relied on the companys manifestations  of  an  agency
relationship.   But  these factors do not persuade  us  that  the
          court committed clear error in finding that Jarvill reasonably
relied  on Porkys manifestations that Haag was authorized to  act
on  its behalf.  In short, the undisputed facts, including  Haags
use of Porkys facilities and his employment with Porkys, lead  us
to  affirm  the  superior courts ruling that Haag  had  at  least
apparent authority.  We therefore turn to Porkys contention  that
the superior court erroneously admitted expert testimony from Jim
Steffen  regarding  the  Sea-Js  alleged  negligent  design   and
     C.   The  Superior Court Did Not Err in Admitting  Testimony
          from Steffen that the Boat Was Negligently Constructed.
          The  superior court never resolved Jarvills  negligence
and  product  defect  claims on their merits.   Nevertheless,  in
disposing of Jarvills unfair trade practices claims, the superior
court  remarked that Mr. Haag built a defective boat and his  use
of  thin  hull  plating  without more stiffening  was  negligent.
Although  this dicta did not affect the outcome below  given  the
trial   courts  dismissal  of  Jarvills  claims  on  statute   of
limitations  grounds,  it  indicates that  the  court  relied  on
Steffens  testimony that Haag negligently constructed the  Sea-J.
In   its  cross-appeal,  Porkys  argues  that  the  trial   court
incorrectly admitted that testimony.  We disagree.
          Porkys  argues that the court erred in admitting expert
testimony  from  Steffen  on  the  boats  negligent  construction
because  Steffen admitted he was not a naval architect.   Steffen
testified   that  the  Sea-J  was  negligently  constructed   and
defective. Days after this testimony, Porkys raised an objection,
seeking  to clarify that Steffens testimony represented  his  lay
opinions  and  not  expert opinions because he is  qualified  for
condition,  valuation  and cause, but  not  for  construction  or
design.   The superior court agreed that it let that  in  as  lay
          As  Porkys  itself points out, the superior court  knew
that  Steffen  was not qualified as an expert in construction  or
design  of boats.  The superior court ruled that Steffen had  the
expertise  in damage and repair and causation and evaluation  and
condition.  And these issues go to the condition.  The only thing
that   where he gets into . . . boat design is where I found that
he was not an expert.
          Porkys   argues  that  the  court  lacked  any   expert
testimony  for its finding that Haag built a defective  boat  and
was  negligent, because the only other witness to testify on  the
design  and construction of the Jarvill boat was Todd  Haag,  who
denied  any  negligence.  While Steffen was not  qualified  as  a
naval   architect,  who  could  address  whether  the  boat   was
negligently  designed, he was able to provide  opinion  testimony
within  his  expertise  in  the area  of  marine  evaluation  and
condition,  as  well  as damage and causation  issues  concerning
boats.  Steffens damages report detailed the likely cause of  the
boats  sinking.   He  had  also voiced his  concerns  during  the
construction phase about the boats hull sheeting.  This  evidence
was  admissible  to  support Jarvills claim  that  Haag  built  a
defective boat.  And the superior court did not have to  rely  on
Steffens  opinion  as  an  expert in construction  or  design  to
conclude  that  Haag negligently used thin hull  plating  without
additional  stiffening.   In conclusion, Steffens  testimony  was
admissible  and  may  be  considered by  the  superior  court  in
analyzing the merits of Jarvills tort claims on remand.
          We  REVERSE  the superior courts dismissal of  Jarvills
claims  as  time barred.  We AFFIRM the superior courts  findings
that  Haag  acted as Porkys agent and its admission  of  Steffens
testimony that Haag negligently constructed the boat.  We  REMAND
for  a  determination of Jarvills negligence and  product  defect
claims on the merits.
     1     The  court  dismissed Jarvills unfair trade  practices
claim on the merits. Jarvill does not appeal that ruling.

     2    See AS 09.10.070.

     3     Waage v. Cutter Biological Div. of Miles Labs.,  Inc.,
926 P.2d 1145, 1148 (Alaska 1996).

     4     Johns Heating Serv. v. Lamb, 129 P.3d 919, 922 (Alaska

     5    Id.

     6     See  Schymanski  v.  Conventz, 674  P.2d  281,  286-87
(Alaska 1983).

     7    Specifically, AS 09.10.070(a) provides:

          Except as otherwise provided by law, a person
          may  not  bring  an action  .  .  .  (2)  for
          personal  injury or death, or injury  to  the
          rights of another not arising on contract and
          not  specifically provided otherwise  .  .  .
          unless  the  action is commenced  within  two
          years of the accrual of the cause of action.
     8     See, e.g., Sopko v. Dowell Schlumberger, Inc., 21 P.3d
1265, 1270 (Alaska 2001).

     9    Russell v. Municipality of Anchorage, 743 P.2d 372, 375
(Alaska 1987) (quotations omitted).

     10    Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 766
(Alaska 1987).

     11    Id.

     12    46 P.3d 1024 (Alaska 2002).

     13    Id. at 1031 n.14.

     14    Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291
(Alaska 1988).

     15    46 P.3d at 1028-29.

     16    Id. at 1031-32.

     17    Id. at 1032-33.

     18    Id.

     19    Gudenau, 736 P.2d at 766.

     20    444 P.2d 536 (Alaska 1968).

     21    Id. at 538-40.

     22     Goodman v. Fairbanks N. Star Borough Sch.  Dist.,  39
P.3d 1118, 1120 (Alaska 2001).

     23     Safeco Ins. Co. of Am. v. Honeywell, Inc.,  639  P.2d
996, 1001 (Alaska 1981).

     24    1A Stuart M. Speiser, et al., The American Law of Torts
5:35,  at  380-81 (1983); see also Hunter v. Sch. Dist. of  Gale-

          It  is the fact and date of injury that  sets
          in  force  and  operation  the  factors  that
          create and establish the basis for a claim of
          damages. It is true that, without an  act  of
          negligence,  no  claim for damages  based  on
          negligence  can  arise. It is  likewise  true
          that,  without the result of injury, no claim
          for  damages  based  on  negligence  can   be
          asserted,  or at least successfully asserted.
          Both  the act of negligence and the  fact  of
          resultant injury must take place before cause
          of  action founded on negligence can be  said
          to have accrued.
293   N.W.2d  515,  519  (Wis.  1980)  (quotations  and  emphases

     25     West  Am. Ins. Co. v. Sal E. Lobianco & Son Co.,  370
N.E.2d 804, 807 (Ill. 1977).

     26    1A Speiser, et al., supra note 24,  5:35, at 381.

     27    115 P.3d 536 (Alaska 2005).
     28    Id. at 542.

     29    Id.

     30    Id. at 539-40.

     31    Id.

     32    Id. at 544.

     33     Jarvill  had  previously purchased a chain  saw  from
Porkys  and paid for welding work on a boat trailer hitch  and  a
pickup truck bumper.

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