Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. L.D.G., Inc. v. Brown (07/10/2009) sp-6390

L.D.G., Inc. v. Brown (07/10/2009) sp-6390

     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

L.D.G., INC., an Alaska Corporation, )
and LARRY GJOVIG, )
) Supreme Court Nos. S- 12409/S-12430
Appellants and )
Cross-Appellees, )
) Superior Court No.
v. ) 3KN-00-00513 CI
)
ROBERT J. BROWN, Personal )
Representative of Tracy N. Eason, )
Deceased, ) O P I N I O N
)
Appellee and )
Cross-Appellant. ) No. 6390 - July 10, 2009
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          John Suddock and Morgan B. Christen, Judges.

          Appearances: Arthur S. Robinson,  Robinson  &
          Associates, Kenai, for Appellants and  Cross-
          Appellees.  John S. Hedland, Hedland, Brennan
          and  Heideman,  Anchorage, for  Appellee  and
          Cross-Appellant.   Ruth  Botstein,  Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for
          Intervenor   and  Cross-Appellee   State   of
          Alaska.

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

          CARPENETI, Justice.


I.   INTRODUCTION
          The  personal representative of the estate of  a  woman
who was shot and killed by an intoxicated man sought damages,  on
behalf  of the womans two surviving dependents, from a  bar  that
allowed   the  man  to  consume  alcohol  while  he  was  already
intoxicated  just prior to the shooting. Following a jury  trial,
the  superior court imposed  dram shop liability in favor of  the
personal representative, dismissed the single shareholder of  the
bars  corporate  owner  from the lawsuit, and  applied  a  single
damages  cap to the non-economic damages awarded to the decedents
two  surviving  dependents.   The  corporate  owner  of  the  bar
challenges   (1)  the  superior  courts  entry  of   a   judgment
notwithstanding the verdict after the jury made factual  findings
but  refused  to  assign legal cause to the bar;  (2)  the  trial
courts  decision  that the plaintiffs complaint was  sufficiently
broad to include the violation of the dram shop act alleged here;
(3)  the  trial courts refusal  at a subsequent trial for damages
to  allow  appellant  to  introduce evidence  of  the  facts  and
circumstances  surrounding the decedents  death;  (4)  the  trial
courts  instruction on legal cause in the damages trial; and  (5)
the  trial  courts  decision to permit hearsay testimony  in  the
damages  trial.   The personal representative (1) challenges  the
trial  courts  dismissal of the single shareholder  of  the  bars
corporate owner from the suit and (2) argues that the damages cap
is  unconstitutional on its face and as applied  and,  if  it  is
constitutional,  that  the  trial court  should  have  imposed  a
separate damages cap for each surviving decedent.  The state,  as
intervenor,   argues   that   the   damages   cap   statute    is
constitutional.   For  the reasons stated below,  we  affirm  the
superior  courtss decisions on all issues with the  exception  of
its  dismissal  of  the  single corporate  shareholder  from  the
lawsuit.  On that issue, we remand for retrial.


II.  FACTS AND PROCEEDINGS
     A.   Facts
          R.V.  Freeman  spent  the  evening  of  July  17,  1998
consuming  alcohol  at the J Bar B.  The J  Bar  B  is  owned  by
L.D.G.,  Inc., a corporation individually owned by Larry  Gjovig.
Freeman  was  served at the bar by bartender Sharine Christensen.
Freeman  was served eight drinks within the span of approximately
fifty minutes, and allegedly had consumed more alcohol earlier in
the  day.   Eventually, when Freeman began to appear intoxicated,
Christensen  refused to serve him any more alcohol.   Christensen
did  not  remove Freemans remaining drinks, however, and  Freeman
consumed  at least a part of one drink after the point  at  which
Christensen determined that he was intoxicated.
          Christensen then attempted to procure a ride  home  for
Freeman to prevent him from driving in his intoxicated condition.
Freeman refused to let Christensen call him a cab and refused  to
give  her  his  car keys.  Eventually another bar  patron,  Tracy
Eason, agreed to drive Christensen to Freemans residence to  pick
up  Freemans girlfriend, Jeanne Iwasko, so that Iwasko could come
back  with them to the bar and drive Freeman home in his own car.
Eason  drove  Christensen to Freemans residence,  but  when  they
arrived  there  they discovered that Freeman had  already  driven
himself home and was in the driveway speaking with Iwasko.
          Christensen  asked to use the bathroom and  Iwasko  let
her  into  the house.  While Christensen was in the bathroom  she
heard  Iwasko  and Freeman arguing.  Christensen then  heard  two
gunshots.   Christensen eventually left the bathroom, saw  Iwasko
on  the  floor  suffering from a gunshot wound, and  called  911.
Christensen heard more gunshots while she was on the  phone  with
the  911  operator.   State troopers arrived  on  the  scene  and
arrested Freeman.  Both Iwasko and Eason, who had also been shot,
died  from  the  wounds they received that  night.   Freeman  was
convicted of first-degree murder in the deaths of both Iwasko and
Eason and is currently incarcerated.
     B.   Proceedings
          In  2000  Robert  Brown, Tracy Easons  father  and  the
personal  representative of her estate, filed  a  wrongful  death
suit  against  L.D.G., Inc. and Larry Gjovig  on  behalf  of  the
estate and Easons surviving dependent children Jordan and Justin.
The complaint alleged that the J Bar B violated Alaskas dram shop
act,  AS  04.16.030,  when Christensen  the J  Bar  Bs  bartender
served  alcoholic  beverages  to Freeman  while  he  was  visibly
intoxicated.   The  complaint  additionally  claimed  that   this
negligent,  reckless,  and  intentional  serving  of  alcohol  to
Freeman  was  the proximate cause of Easons death.  Brown  sought
actual damages, punitive damages, and costs and fees on behalf of
the estate and the dependents.  Brown did not seek to recover any
damages  from  Freeman  himself, and neither  L.D.G.  nor  Gjovig
sought to join Freeman or assert a third-party claim against him.
          At  trial, the jury heard testimony regarding  Freemans
level  of  intoxication when Christensen served him the alcoholic
beverages and the circumstances surrounding Christensens  refusal
to  serve  him  any additional alcohol.  Additionally,  the  jury
heard  testimony  from several witnesses who  described  Freemans
typical  behavior when sober and when intoxicated.  The jury  was
also  shown portions of a video recorded in the bar on the  night
in  question.   At  the close of the trial, Gjovig  moved  for  a
directed  verdict  on  the claims against  him  personally.   The
superior court granted Gjovigs motion, leaving L.D.G. as the sole
remaining defendant.
          The   court  then  submitted  the  case  to  the  jury,
providing  the jury with a special verdict form to determine  the
extent of L.D.G.s liability.  Responding to questions laid out in
the  special  verdict form, the jury declined  to  find  that  an
employee  of  the  J  Bar B [sold] alcohol to R.V.  Freeman  with
criminal  negligence when he was a drunken person, but  did  find
that  an  employee  of  the  J  Bar B  with  criminal  negligence
allow[ed]  R.V. Freeman to consume an alcoholic beverage  in  the
bar  when he was a drunken person.  The jury also found  that  it
was  more likely true than not true that, if R.V. Freeman had not
been intoxicated, he would not have killed Tracy Eason.  But  the
jury declined to find that the intoxication of R.V. Freeman [was]
so  important in bringing about the death of Tracy Eason  that  a
reasonable  person  would  regard  it  as  a  cause  and   attach
responsibility  to  it.   Because the  jury  did  not  find  that
Freemans intoxication was a legal cause of Easons death, they did
not reach the question of damages.
          Following receipt of the jurys verdict, Brown  filed  a
motion  for  entry of judgment in his favor and a  new  trial  to
determine  damages.   The superior court granted  Browns  motion,
finding that fair-minded jurors could not have concluded that the
intoxication  of  the  murderer, who they found  would  not  have
killed  Tracy  Eason but for that very intoxication,  was  not  a
substantial  factor in this wrongful death.  The  superior  court
therefore entered a judgment notwithstanding the verdict, finding
L.D.G.  liable  for  Easons death and ordering  a  new  trial  on
damages.  L.D.G. filed a motion for reconsideration of the order,
and   the  superior  court  denied  this  motion.   L.D.G.   then
petitioned this court for review; we denied the petition.
          At  the  beginning  of the new trial  on  damages,  the
superior  court ordered, over L.D.G.s objection, that  the  trial
would  be  limited to the question of wrongful death damages  and
that  the  jury  would  not  be  informed  of  the  circumstances
surrounding   Easons  death.   The  jury  ultimately   determined
damages, using a special verdict form identifying past and future
economic  and non-economic damages, at $705,856 for Justin  Eason
and  $749,026  for Jordan Eason.  Each of these  awards  included
$28,290 in past non-economic damages and $537,508 in future  non-
economic  damages.   Brown then moved for an  entry  of  judgment
setting  damages at the amounts determined by the  jury.   L.D.G.
responded  with a motion for remittitur claiming  that  the  non-
economic  damages  were  subject  to  a  damages  cap  under   AS
09.17.010, which would limit the non-economic damages to a  total
of $421,824 (based on Tracy Easons life expectancy at the time of
her  death multiplied by $8,000) for the combined claims of  both
of  Easons  surviving  dependents.  Brown  responded  to  L.D.G.s
motion for remittitur by arguing that the damages cap should  not
apply  in  this  case, that if the damages cap  did  apply  there
should be a separate cap for each of the boys claims, and in  the
alternative  that the appropriate damages cap was a  one  million
dollar  cap  under AS 09.17.010(c).  Brown also argued  that  the
entire  damages  cap statute was facially unconstitutional  as  a
denial  of  equal protection and the right to a jury  trial,  and
unconstitutional as applied in this case because  it  applied  an
aggregate cap to multiple beneficiaries.
          After  the  original judge, Superior Court  Judge  John
Suddock,  recused  himself  in  January  2005  because   he   had
previously been involved as counsel in a case relied upon by  the
parties regarding the constitutionality of AS 09.17.010, the case
was  reassigned  to  Superior Court  Judge  Morgan  B.  Christen.
Judge  Christen  then  entered a final  judgment  in  April  2005
interpreting AS 09.17.010 as imposing a single damages cap.   The
superior  court declined to address the constitutional  arguments
because  it  found  that Brown had not met the  burden  of  proof
required   to  overcome  the  presumption  of  constitutionality.
Accordingly, the superior court applied a single cap of  $421,824
to the aggregate non-economic damages awarded to the boys.
          Brown  moved for reconsideration of the order  imposing
the   single  damages  cap,  asking  the  court  to   reach   the
constitutional issues.  L.D.G. did not respond to the motion, and
the   superior  court  ordered  supplemental  briefing   on   the
constitutional   issues.   The  parties  submitted   supplemental
briefing,  and the court notified the Attorney General of  Alaska
that   the   supplemental  briefing  called  into  question   the
constitutionality of a statute.  The court also requested  amicus
briefing  on  the  constitutional  questions  from  organizations
representing plaintiffs counsel and defense counsel.   The  state
successfully moved to intervene in the litigation to  defend  the
constitutionality of the damages cap legislation.   The  superior
court   ultimately   found   that   AS   09.17.010(b)   is    not
unconstitutional on its face or as applied.  The  superior  court
again  entered  a  single award for both  boys  for  non-economic
damages of $421,824.
          Brown and L.D.G. both appealed; the state continues  to
defend the constitutionality of the damages cap.
III. STANDARD OF REVIEW1
          We  review de novo the grant of a directed verdict  and
the grant of a judgment notwithstanding the verdict  to determine
whether the evidence, viewed in the light most favorable  to  the
non-moving  party,  is  such that reasonable  persons  could  not
differ  in  their  judgment.2  We review a determination  of  the
sufficiency  of a complaint for abuse of discretion.3   Questions
regarding the admissibility of evidence are reviewed for abuse of
discretion.4   Where  the  admissibility  of  evidence  turns  on
whether  the  trial court applied the correct legal standard,  we
review  the  [lower] courts decision using our independent  legal
judgment.5   We  review  jury  instructions  de  novo.6    Issues
regarding the constitutionality of statutes are questions of  law
that  we  review  de  novo.7  We review the interpretation  of  a
statute  de  novo,  adopting the rule of law most  persuasive  in
light of precedent, reason, and policy.8
IV.  DISCUSSION
     A.   The  Trial Court Did Not Err in Granting Browns  Motion
          for  a  Judgment Notwithstanding the Verdict After  the
          Original Trial.
          Following  completion of the original jury  trial,  and
after the jury had entered its finding that Freemans intoxication
was  not  a  legal  cause of Easons death,   the  superior  court
granted  Browns motion for a judgment notwithstanding the verdict
(JNOV).   L.D.G. argues that Brown was not entitled to a j.n.o.v.
because reasonable persons could differ in their judgment on  the
issue,  and therefore the jurys verdict should have been  allowed
to  stand.  To support this argument, L.D.G. asserts that Alaskas
dram  shop  liability statutes are not strict liability statutes,
and  therefore the plaintiff must establish that violation of the
statutes  was  both  the  factual  and  proximate  cause  of  the
injuries.  In this case, L.D.G. argues, Brown must show not  just
that L.D.G. violated the dram shop statutes by serving alcohol to
an intoxicated person, but also that the injuries to the decedent
resulted from the intoxication, or were proximately caused by the
intoxication.
          Brown responds that the entry of a JNOV was appropriate
because the jury had been given an improper instruction on  legal
causation  and  because  the special  verdict  form  included  an
improper  question  on  legal causation.   Brown  supports  these
claims  by asserting that in a statutory dram shop case the  only
relevant  issues  of  proximate cause are whether  the  defendant
acted  with criminal negligence under the statute in serving  the
actor  alcohol, and whether the actors intoxication  led  to  the
injuries.  Brown argues that, because the jury returned  findings
in  the affirmative on both of these questions, there was no need
for  an  additional  jury  question on legal  causation  and  the
superior court acted appropriately in entering judgment in  favor
of Brown.
          In deciding whether to issue a JNOV, a trial court must
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.9  Under Alaskas  dram
shop  liability  statutes,   a person  who  provides  alcohol  to
another is generally not liable for injuries resulting from  that
persons intoxication.  However, the statutes provide an exception
for a liquor licensee who allows an intoxicated person to consume
an  alcoholic  beverage  on  licensed premises.   Alaska  Statute
04.21.020 provides in relevant part that
          a  person who provides alcoholic beverages to
          another person may not be held civilly liable
          for  injuries resulting from the intoxication
          of that person unless the person who provides
          the alcoholic beverages holds a license . . .
          or is an agent or employee of such a licensee
          and   .  .  .  the  alcoholic  beverages  are
          provided to a drunken person in violation  of
          AS 04.16.030.
Alaska  Statute  04.16.030  prohibits  a  licensee  acting   with
criminal  negligence  from  sell[ing], giv[ing],  or  barter[ing]
alcoholic  beverages to a drunken person or allow[ing] a  drunken
person  to  .  . . consume an alcoholic beverage within  licensed
premises.
          Here,  in  its  decision granting Browns motion  for  a
JNOV, the superior court found that fair-minded jurors could  not
have  concluded that the intoxication of the murderer,  who  they
found  would  not  have  killed Tracy Eason  but  for  that  very
intoxication,  was  not  a substantial factor  in  this  wrongful
death.   The superior courts decision to enter judgment in  favor
of Brown, therefore, was based on its determination that the jury
acted unreasonably in failing to assign legal causation to the  J
Bar Bs actions in allowing Freeman to consume alcohol when he was
already intoxicated, even though the jury had already found  that
the  J Bar B had acted with criminal negligence and that Freemans
intoxication was the factual cause of Easons death.
          Generally,  Alaska  courts apply  a  two-part  test  to
determine  legal  causation  in negligence  cases,  asking  first
whether  the  accident  would  not  have  happened  but  for  the
defendants negligence, and then asking whether the negligent  act
was  so  important in bringing about the injury  that  reasonable
          individuals would regard it as a cause and attach responsibility
to it.10  We have also specifically outlined the requirements for
legal causation in dram shop cases in Gonzales v. Safeway Stores,
Inc.:11
          Under  ordinary  principles  of  causation  a
          plaintiff would have to prove that the liquor
          unlawfully    sold    was    a    substantial
          contributing factor to the intoxication which
          caused the accident. Under the dram shop  act
          the   plaintiff  has  an  easier  task.   The
          plaintiff must show only an unlawful sale  to
          an  intoxicated person who, in consequence of
          such  intoxication, caused injury to another.
          The  plaintiff  need not show that  the  sale
          substantially     contributed     to      the
          intoxication.[12]
Thus,  the issue of legal causation in dram shop liability  cases
hinges  on  whether the actors intoxication was so  important  in
bringing  about the injury that a reasonable person would  regard
it  as  a  cause and attach responsibility to it.  This  is  true
whether   or   not  the  plaintiff  has  established   that   the
intoxication  resulted  from  the  alcohol  that  was  unlawfully
provided in violation of AS 04.16.030.
          In  this case, the jury found both that an employee  of
the  J  Bar  B  acted with criminal negligence when  she  allowed
Freeman  to  consume alcohol on the premises when he was  already
intoxicated,  and  that it was more likely  true  than  not  that
Freeman  would not have killed Eason had he not been intoxicated.
The  superior  court  also asked the jury  to  determine  whether
Freemans  intoxication  was so important in  bringing  about  the
death of Tracy Eason that a reasonable person would regard it  as
a  cause and attach responsibility to it.  The jury answered this
question  in  the negative.  The jury thus found that  the  first
prong of the two-part substantial factor test for legal causation
but  for  causation   was satisfied, but that  the  second  prong
whether   a   reasonable  person  would  regard  the   defendants
negligence  as a cause and attach responsibility to it   was  not
satisfied.13
          In  granting Browns motion for entry of judgment in his
favor  on  the issue of liability, the superior court found  that
fair-minded jurors could not have concluded that the intoxication
of the murderer, who they found would not have killed Tracy Eason
but  for that very intoxication, was not a substantial factor  in
this  wrongful  death.  We will hold that a jurys  findings  were
unreasonable  where the facts in the record do  not  support  the
jurys  conclusions on legal cause.14  A review of the  record  in
this  case  supports the superior courts determination  that  the
only  reasonable  conclusion in light of the  evidence  was  that
Freemans intoxication was a substantial factor in causing  Easons
death.
          The  jury heard testimony from several individuals  who
described   Freemans  typical  behavior  when  sober   and   when
intoxicated, as well as testimony from individuals who  witnessed
his  behavior  on  the  night of the  shooting.   This  testimony
          presented a picture of Freeman as a man who was mild mannered  if
sometimes  unpleasant   when sober, but  who  was  capable  of  a
significant transformation when intoxicated, becoming  obnoxious,
belligerent, and mean as a snake.
          Elizabeth   and   Sam   Strange,  Freemans   neighbors,
described their relationship with Freeman prior to the attacks on
Iwasko and Eason, and their shock at the changes they observed in
Freeman   that   night.   Elizabeth  recounted   their   friendly
relationship with Freeman, noting that he was like a  dad  to  us
and a grandfather to our children.  Elizabeth further stated that
Freeman  had never given her any indication that he was a violent
person  when he was sober.  Sam Strange was the first  person  to
arrive at Freemans residence immediately following the shootings,
and both his testimony and the transcript of his call to 911 that
night  reflect  his  shock  at Freemans condition  and  behavior.
Strange  had  run  over to the Freeman residence  believing  that
there had been an accident and intending to help, but called  911
after  Freeman, who still held the handgun and who had  blood  on
his  hand, threatened to shoot him.  In the recording of that 911
call,  which was played at trial, Strange tells the 911  operator
that [h]es drunker than a rail right now, and Ive never seen this
man like this before, and that this is totally out of context for
him  that  I know of.  At trial, Sam answered Yes to the question
So  . . . the drunkest you ever saw him was also the wildest  and
most violence [sic] you ever saw him?
          Three bartenders who had worked at the J Bar B and knew
Freeman  described  in statements either given directly at  trial
or  recounted  at  trial  by  the lead investigator  in  Freemans
criminal case  Freemans belligerent, mean, and sometimes  violent
behavior  when  he was intoxicated.  Two of these bartenders  had
personal policies of never serving liquor to Freeman because they
did not like his behavior when he consumed hard alcohol.  Freeman
was  served at least eight drinks at the J Bar B, including  hard
alcohol,   the  night  of  the  shooting.   The  state   troopers
administered  a  portable breath test to  Freeman  after  he  was
arrested and recorded a breath alcohol level of 0.203.
          The  question  put  to  the jury was  whether  Freemans
intoxication  was  so important in bringing about  the  death  of
Tracy  Eason that a reasonable person would regard it as a  cause
and  attach  responsibility to it.  The jury heard evidence  that
Freeman underwent significant changes in his personality when  he
became  intoxicated,  and that these changes  involved  increased
belligerence and aggression.  Although the evidence presented  to
the  jury  did not show that Freemans intoxication was  the  sole
cause of the death of Tracy Eason, the only reasonable conclusion
in  light  of  the  evidence was that Freemans  intoxication  was
sufficiently  important  in  bringing  about  Easons  death  that
responsibility  should be attached to the  intoxication  and,  by
extension,   to   those  who  unlawfully   contributed   to   the
intoxication.15
          Additionally, there is evidence that the jury may  have
been   exposed  to  incorrect  statements  regarding  the   legal
standards  for dram shop liability, and that the jurys  resulting
confusion led to the inconsistency in its findings on the special
          verdict form.  Although jury instruction 22 provided an accurate
summation of dram shop liability, including a statement  that  it
was  not  necessary  for  the jury to find  that  the  particular
alcoholic beverages served to Freeman at the J Bar B in violation
of the statute led to Easons injuries, the jury had already heard
an  inconsistent,  and  inaccurate, statement  of  the  law  from
L.D.G.s  counsel.  L.D.G. included in its summation to the  jury,
over Browns objection, the rhetorical question Do we know whether
or not that extra two or three drinks that [Freeman] had at the J
Bar  B  was  what  did it?  This statement was  contrary  to  our
holding  in Gonzales  that the plaintiff need not show  that  the
alcohol  that was provided with criminal negligence substantially
contributed  to  the  intoxication16  and raised  the  irrelevant
question  of whether the alcohol that Freeman consumed  after  he
was  cut  off  contributed to his decision to murder  Eason.   In
light  of  this  exposure to an incorrect legal standard,  it  is
understandable  that the jury could find both that  it  was  more
likely  true  than  not  true that, if  [Freeman]  had  not  been
intoxicated,  he would not have killed [Eason] and that  Freemans
intoxication was not so important in bringing about the death  of
[Eason]  that a reasonable person would regard it as a cause  and
attach responsibility to it.  However, where the evidence in  the
record does not support the jurys findings on legal causation  it
is not necessary to speculate as to why the jury went wrong.17
          Therefore,  because the jury found  that  L.D.G.  acted
with  criminal  negligence in serving alcohol to  an  intoxicated
individual and that Freemans intoxication was a but for cause  of
Easons  death,  and because the superior court  did  not  err  in
finding  that  reasonable jurors could not  have  concluded  that
Freemans  intoxication  was not a substantial  factor  in  Easons
death,  the  superior court did not err in entering  j.n.o.v.  in
favor of Brown.18
     B.   The Trial Court Did Not Err in the Trial on Damages  in
          Refusing   To   Admit   Evidence   Relating   to    the
          Circumstances of Easons Death.
          After  the  jury failed to allocate legal liability  in
its  special  verdict form  therefore avoiding  the  question  of
damages   and  the  court  issued  judgment  notwithstanding  the
verdict assigning liability to L.D.G., the superior court ordered
a  separate trial to determine damages.  L.D.G. argues on  appeal
that  the  trial court erred in refusing at the damages trial  to
admit evidence pertaining to facts and circumstances relevant  to
Easons death and to L.D.G. and its business practices.
          At the start of the trial on damages the superior court
ruled  that  it would allow only evidence relevant to determining
wrongful  death  damages  and that it would  not  allow  evidence
relevant  only to issues of legal liability.  The superior  court
based   this  decision  on  its  conclusion  that  L.D.G.s  legal
liability  had already been determined and that L.D.G. could  not
now  escape the implications of its decision not to join Freeman,
the  individual arguably most responsible for Easons death, as  a
third-party defendant.  L.D.G. objected to this ruling at  trial,
asserting two primary arguments.  First, L.D.G. asserted that  it
was  important for the jury to know that it was Freeman who  shot
          and killed Eason.  Second, L.D.G. again attempted to assert its
interpretation that dram shop liability only applies to the  sale
of  alcohol (but not to allowing an intoxicated person to consume
alcohol) and, accordingly, renewed its argument that the  alcohol
consumed  by Mr. Freeman was legally sold to him as  far  as  the
jurys verdict was concerned.19
          On  appeal, L.D.G argues that the superior court  erred
in refusing to allow it to present any evidence pertaining to the
particular circumstances of Easons death, thus forcing  the  jury
to  make  a  determination in a vacuum as to  what  damages  were
appropriate as a natural and proximate cause of defendant L.D.G.s
wrongful  conduct.  L.D.G. also implicitly raises  the  issue  of
Freemans  liability by noting that the superior  courts  decision
meant  that  the  jury  would not hear  evidence  concerning  the
circumstances surrounding the shooting by Freeman . . . , as well
as the circumstances leading up to Freemans criminal act.
          Under Alaska Rule of Evidence 402, [e]vidence which  is
not  relevant  is  not  admissible.  We  review  a  trial  courts
admission  or  exclusion of evidence for abuse  of  discretion.20
Where  the  admissibility of evidence turns on whether the  trial
court  applied the correct legal standard, we review the  [lower]
courts decision using our independent legal judgment.21  Here, the
superior  courts  decision  to  exclude  evidence  pertaining  to
Freemans  role  in  Easons  death was  based,  in  part,  on  its
interpretation  of  the  law  controlling  the  apportionment  of
damages.  Therefore, because the superior courts decisions on the
admissibility of evidence relating to the circumstances of Easons
death  involved  questions of law, we review those  decisions  de
novo.
          Although L.D.G. appears to believe that the details  of
Freemans  role in the death of Eason are relevant  to  the  jurys
determination  of the damages owed by L.D.G.,  L.D.G.  failed  to
show  that  the  evidence was relevant.  At trial,  the  superior
court  refused to admit this evidence because of L.D.G.s  failure
to  name the murderer as a third-party defendant.  Alaska Statute
09.17.080  provides for the apportionment of damages  in  actions
involving  the  fault of more than one person,  but  specifically
prohibits  allocating fault to a person . .  .  identified  as  a
potentially  responsible person if the parties had  a  sufficient
opportunity to join that person in the action but chose not to.22
This  statute requires that [i]n order to include a non-party  in
the fault allocation, a defendant must identify the non-party  as
someone who the defendant will argue is at fault and that even if
the  defendant  argues  that  a  non-party  was  at  fault,  that
non-party cannot be included in the allocation of fault if  there
was  a  sufficient  opportunity  to  join  that  non-party.23   A
sufficient opportunity is found where the non-party is (A) within
the  jurisdiction  of  the court; (B) not  precluded  from  being
joined by law or court rule; and (C) reasonably locatable.24
          Here, L.D.G. never attempted to bring Freeman into this
lawsuit through joinder and never argued that it did not  have  a
sufficient opportunity to join Freeman because he fell  into  any
of  the  three statutory categories.25  Because L.D.G.s liability
for  Easons death was established at the original trial, evidence
          pertaining to Freemans role in Easons death would not be relevant
to  the  issue of damages unless L.D.G. were seeking to apportion
damages  to Freeman.  But L.D.G. did not take the required  steps
to   ensure  that  damages  could  be  apportioned  to   Freeman.
Accordingly,  the  superior court did  not  err  in  ruling  that
evidence  of Freemans role in Easons death would not be  admitted
at the trial on damages.
          L.D.G.  next  argues that evidence  pertaining  to  the
facts  of Easons death and L.D.G.s actions in serving Freeman  is
admissible  because  it  is relevant to  Alaskas  wrongful  death
statute,  AS  09.55.580.   That statute  limits  damages  to  the
natural  and  proximate consequence of the negligent or  wrongful
act  or omission of another.26  L.D.G. argues that this provision
raises  anew  the  question of the scope  of  L.D.G.s  liability.
L.D.G.  also argues that the statutes instruction that the  court
or  jury shall consider all the facts and circumstances and  from
them  fix  the award27 essentially opens the door to any evidence
relating  to  the  negligent or wrongful act.  Essentially,  this
comes  down  to a question of whether the wrongful death  statute
requires an inquiry into the underlying facts of the events  that
led  up  to the decedents death  including a renewal of questions
of  actual  and  proximate  causation   or  whether  the  inquiry
indicated by the statute is limited to exploring aspects  of  the
life  of the decedent and of any surviving dependents that  could
be relevant to setting damages.
          In  defense  of  the first theory, L.D.G.  cites  three
cases  from other jurisdictions where courts purportedly admitted
evidence  on the circumstances and facts surrounding an  accident
even  after  the defendant had admitted liability.  None  of  the
cases  cited  by L.D.G. are analogous to the question  at  issue,
however, because in all three cases the amount of damages awarded
depended  on  the nature and extent of the injuries received  and
the   admitted  testimony  was  specifically  relevant  to  those
injuries.   In  Long v. Yellow Cab Co.,28 the  court  ruled  that
evidence  of the details of a car accident were admissible  where
the  defendant taxi operator disputed that the plaintiffs  injury
was  caused  by the accident;29 in Riordan v. Gould  Engineering,
Inc.,30 the court ruled that evidence of the pain and suffering a
decedent  husband  experienced when  he  suffocated  after  being
buried in a construction accident was relevant to his wifes  suit
for damages and therefore was admissible;31 and in Piper v. Barber
Transportation  Co.,32 the court ruled that in a  suit  resulting
from  an automobile accident evidence of the force of impact  and
the   character  of  the  plaintiffs  injury  were  relevant  and
admissible  where  the  plaintiff sought  damages  for  pain  and
suffering.33
          In  this  case, in contrast, the evidence  that  L.D.G.
sought  to admit was not relevant to the damages sought by Brown.
The   damages  Brown  sought,  on  behalf  of  Easons   surviving
dependents, were economic damages and the dependents non-economic
damages  for  past  and  future loss of society,  comfort,  care,
protection, affection, and companionship of Tracy Eason, and  for
sorrow,  mental distress, and grief suffered as a result  of  the
death of Tracy Eason.  The wrongful death statute directs juries,
          in fixing the amount of damages, to consider (1) deprivation of
the  expectation of pecuniary benefits, (2) loss of contributions
for  support,  (3) loss of assistance or services,  (4)  loss  of
consortium,  (5) loss of prospective training and education,  and
(6)  medical  and  funeral expenses.34  None of these  claims  or
elements  requires  any consideration of  the  nature  of  Easons
injuries or of any of the events leading up to her death.
          Instead, L.D.G. appears to have sought introduction  of
the  evidence  in  order  to relitigate questions  of  causation,
including   the   degree  to  which  the   actions   of   L.D.G.s
representative   allowing  Freeman  to  consume   the   remaining
portions of his drinks  contributed to Easons death.  Because the
jury  and  trial  court had already determined  legal  cause  and
established L.D.G.s liability in the original trial, and  because
there  was no reason for the jury in the trial on damages  to  be
informed  of  the specific role L.D.G. played in  bringing  about
Easons  death,  the  superior court  did  not  err  in  excluding
evidence pertaining to the circumstances of Easons death from the
trial on damages.
     C.   The Trial Court Did Not Err in the Trial on Damages  in
          Instructing the Jury on Legal Cause.
          In   an   extension  of  its  argument  regarding   the
admissibility  of  evidence  under the  wrongful  death  statute,
L.D.G.  also  argues that the superior court erred in  giving  an
abridged instruction on legal cause at the trial on damages.   At
trial, the court instructed the jury:
          For  each  item  of claimed  loss,  you  must
          decide  whether it is more likely  true  than
          not  true that the beneficiary  that  is  the
          children   had such a loss or are  reasonably
          probable  to have such a loss in the  future;
          and two, that the loss was legally caused  by
          the  death of Tracy Eason . . . .  If one  or
          both  of  these  things  are  not  true  with
          respect to a particular item of loss, you may
          not make an award for that loss.
L.D.G.  requested  at  trial that the jury  receive  a  different
instruction  on  cause identified only as the Alaska  civil  jury
pattern instruction and the definition of legal cause of death.
          There  was  no  need  for the jury to  receive  a  full
instruction on legal cause because the issue of L.D.G.s liability
for  Easons  death was not before the jury in the damages  trial.
Before  instructing  the  jury  on  the  legal  requirements  for
determining damages, the superior court stated that L.D.G.,  Inc.
is  legally  responsible  for the  death  of  Tracy  Eason.   The
wrongful  death statute requires that any damages  awarded  under
the  statute  be  those  which  are  the  natural  and  proximate
consequence  of  the  negligent or wrongful act  or  omission  of
another.35   The only questions for the jury, then, were  whether
the  children had suffered harm and whether Easons death was  the
legal  cause  of that harm such that an award of damages  against
the  party already determined to be legally responsible for  that
death would be justified.  Because the instruction on legal cause
given  by the superior court was sufficient to allow the jury  to
          make this determination, the superior court did not err in
declining to give a more extensive instruction on legal cause.
     D.   It  Was  Error To Grant Gjovigs Motion for  a  Directed
          Verdict.
          Brown   cross-appeals,  challenging  the  trial  courts
directed  verdict  on  the issue of Gjovigs  personal  liability.
Gjovig  argued that there was insufficient evidence to show  that
L.D.G.s  corporate form had been abused such that  the  corporate
veil  should  be  pierced and Gjovig, L.D.G.s  sole  shareholder,
should  be  held  personally  liable.  Deciding  that  there  was
insufficient  evidence to support an argument  for  piercing  the
corporate veil, the superior court granted Gjovigs motion  for  a
directed verdict.36
          Before  reaching the merits of the piercing issue,  the
superior court considered two preliminary issues: whether  Browns
failure to plead the piercing issue foreclosed his right to argue
it  at  trial,  and whether Gjovigs status as a  partner  to  the
corporation  negated the need for Brown to pierce  the  corporate
veil.  We consider these issues in turn.
          1.   Failure to plead the piercing theory
          1.   The superior court, in its ruling on Gjovigs motion for a
directed  verdict,  noted that Brown did not plead  piercing  the
corporate  veil  as a count in the complaint.  As  Brown  argues,
that deficiency alone is not sufficient to keep the question from
going  to the jury. We have previously held, in allowing a  party
to  proceed  on  a  piercing  the  corporate  veil  theory  after
originally  bringing suit on a de facto partnership theory,  that
if a party has notice of the conduct for which the opposing party
is  seeking  relief,  the opposing party may  recover  under  any
theory  supported  by the evidence.37  Here, Brown  indicated  in
early  December 2002, six months before the start of trial,  that
he  was  prepared to argue that L.D.G.s corporate veil should  be
pierced  in  order  to  hold  Gjovig  personally  liable.   Brown
submitted supplemental proposed jury instructions, including  two
instructions   pertaining  to  piercing   the   corporate   veil,
accompanied by a notice indicating that although Brown maintained
his  theory that Gjovig was liable as a partner or joint-venturer
of  L.D.G., he would also argue that the corporate veil should be
pierced.  L.D.G. and Gjovig, therefore, were on sufficient notice
of Browns piercing the corporate veil theory.
          2.   Gjovigs liability as a partner
          Brown  argues that Gjovig can be held personally liable
as  a partner to L.D.G. whether or not L.D.G.s corporate veil  is
pierced.   But  Browns theory that Gjovig can be held  personally
liable   as   a   partner  of  L.D.G.  mischaracterizes   Gjovigs
relationship with L.D.G.  It is not disputed that Gjovig  is  the
sole shareholder of L.D.G., a subchapter S corporation,38 and that
L.D.G.  is the owner of the J Bar B.  To overlook this  fact  and
proceed  under  the theory that Gjovig may nevertheless  be  held
liable for the actions of the corporation as a partner  would  be
to  do  violence to the concept that a sole shareholder  normally
has only very limited liability for the debts of the corporation.
We have previously affirmed the decision of a superior court that
applied the standards for piercing the corporate veil to a  claim
          that was originally brought under a de facto partnership theory.39
The  facts  which Brown alleges in support of his  argument  that
Gjovig  and L.D.G. were engaged in a partnership  including  that
Gjovig  did not honor the formalities of L.D.G.s corporate  form,
paid  wages  and  salaries of J Bar B employees out  of  his  own
pocket,  and intermingled corporate and non-corporate funds,  and
that  the  corporation was undercapitalized  should therefore  be
considered  under the standards for piercing the corporate  veil.
We now turn to the merits of that issue.
          3.   Piercing the corporate veil
          This issue comes to us on the superior courts grant  of
Gjovigs motion for directed verdict.  When reviewing the grant of
a  motion  for a directed verdict we must 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.40  If there is room for diversity of  opinion
among  reasonable persons, then the question is one for the  jury
to decide and a directed verdict is not appropriate.41
          In  general,  courts seek to recognize and  uphold  the
principles that the corporation exists as a separate legal entity
and  that  owner  liability for the debts of the  corporation  is
limited.42  Courts therefore exhibit a preference against piercing
the   corporate   veil  and  will  do  so  only  in   exceptional
circumstances.43
          The  corporate  veil, however, may be  pierced  if  the
corporate  form  is  used to defeat public  convenience,  justify
wrong, commit fraud, or defend crime  a misconduct standard.44 In
addition,  in Uchitel Co. v. Telephone Co.,45 we also  recognized
that  the  corporate veil may be pierced when  a  corporation  is
nothing more than a mere instrument of a shareholder, and we laid
out  six  primary factors to evaluate the rationality of imposing
personal  liability  on  the  shareholder.46   Under  this   mere
instrument test, we ask whether (a) the shareholder sought to  be
charged owns all or most of the stock of the corporation; (b) the
shareholder  has subscribed to all of the capital  stock  of  the
corporation  or  otherwise  caused  its  incorporation;  (c)  the
corporation  has grossly inadequate capital; (d) the  shareholder
uses  the  property  of  the corporation  as  his  own;  (e)  the
directors  or executives of the corporation act independently  in
the  interest of the corporation or simply take their orders from
the shareholder in the latters interest; and (f) the formal legal
requirements  of  the  corporation are  observed.47   It  is  not
necessary   for   all   six  factors  to  be   satisfied   before
instrumentality  can  be found, but the factors  help  the  fact-
finder to decide whether the evidence favors piercing the veil.48
          Viewing  the  evidence in the light most  favorable  to
Brown,  reasonable inferences can be drawn that are sufficient to
create  a  jury  question under either veil-piercing  theory.   A
reasonable fact-finder could infer that Gjovig (1) was  the  sole
shareholder  and  officer  of  L.D.G.;  (2)  did  not  honor  the
formalities of L.D.Gs corporate form, but paid employees  out  of
his  own  pocket and apparently under the table;49 (3) commingled
personal and corporate funds, not only by using personal funds to
pay  employees but also by apparently taking corporate money  for
          personal use without accounting for it;50 (4) undercapitalized
L.D.G.,  as demonstrated by his payment of employees out  of  his
own  pocket,  his  evident failure to obtain insurance  to  cover
adverse  judgments, and his taking corporate money  for  personal
use  without  accounting  for it;51 (5)  manipulated  the  actual
business in and out of the corporate form to both avoid tax  laws
and make sure that potential claimants against the bar operations
would  be unable to obtain a satisfiable judgment;52 and (6)  hid
behind  L.D.G.s corporate form to try to avoid liability for  his
employees dram shop violations.
          These   inferences  would  satisfy   several   of   the
instrumentality  factors, and would therefore  be  sufficient  to
create a jury question on whether L.D.G. was a mere instrument of
Gjovig  to  the  extend  that L.D.Gs  corporate  form  should  be
disregarded.53  The  inferences regarding  manipulations  of  the
corporate  form  to  avoid  taxes,  enforceable  judgments,   and
employer  liability are also sufficient to create a jury question
on  whether  Gjovig  violated the misconduct standard   that  is,
whether  he  used the corporate form of L.D.G. to  defeat  public
convenience, justify wrong, commit fraud, or defend crime.54  The
trial  court concluded that the evidence presented by  Brown  was
never really tied together in any kind of coherent theory that  a
jury  could chew on in any reasonable way according to standards,
but  the  jury  instructions proffered by Brown on  piercing  the
corporate  veil combined with closing arguments could have  cured
that perceived defect.
          We  conclude  that the issue of piercing the  corporate
veil  was  properly before the superior court and that there  was
sufficient evidence for the question to go to the jury.   It  was
therefore error to grant Gjovigs motion for directed verdict  and
to  dismiss  him from the lawsuit.  We remand for jury  trial  on
Browns claim that the corporate veil should be pierced and Gjovig
subjected to personal liability.
     E.   The  Trial  Court Did Not Abuse Its Discretion  in  the
          Original  Trial  in  Finding  that  the  Complaint  Was
          Sufficiently  Broad  To  Allow the  Jury  To  Determine
          Whether  L.D.G. Was Liable for Allowing an  Intoxicated
          Person To Consume Alcohol.
          L.D.G.  argues that Browns complaint alleged only  that
L.D.G.  served alcohol to Freeman in violation of the  dram  shop
statute,  and that it was therefore error for the superior  court
to  allow  the jury to receive instruction and consider liability
on  the issue of whether L.D.G. violated the dram shop statute in
allowing Freeman to consume alcohol on the bars premises while he
was  visibly intoxicated.  Browns amended complaint alleged  that
defendants  through their agents or employees, including  Sharine
Christensen, served alcoholic beverages to a drunken person,  one
Robert  Freeman,  who was obviously and visibly intoxicated,  and
that this action violated AS 04.16.030.  Alaska Statute 04.16.030
prohibits certain conduct relating to drunken persons, including:
          (a) A licensee, an agent, or employee may not
          with criminal negligence
          (1) sell, give, or barter alcoholic beverages
          to a drunken person;
          . . .
          (3)  allow  a  drunken person  to  enter  and
          remain within licensed premises or to consume
          an   alcoholic   beverage   within   licensed
          premises.
          At  trial,  L.D.G.  objected to  the  jury  instruction
pertaining to dram shop liability, arguing that theres nowhere  .
.  .  in  the plaintiffs complaint where they allege that L.D.G.,
Inc.,  and  J  Bar B are liable because they allowed  Freeman  to
consume alcoholic beverages when he was a drunken person  on  the
premises.55  The superior court ruled at trial that it would allow
the instruction on the consumption theory of dram shop liability,
finding  that the complaint was sufficiently broadly  pleaded  to
reach  all  forms  of  provision  under  AS  04.16.030.56    Jury
instruction  22 included instructions on dram shop liability  for
both  selling  alcoholic beverages to a drunken  person  and  for
allowing a drunken person to consume an alcoholic beverage in the
bar.   The  special verdict form included separate  questions  on
whether  an employee of the bar sold alcohol to Freeman  when  he
was  a  drunken person and whether an employee of the bar allowed
Freeman to consume an alcoholic beverage in the bar when he was a
drunken person. L.D.G. now argues that it was prejudiced  by  the
inclusion  of this jury instruction and separate special  verdict
questions because the jury found that L.D.G. did not sell alcohol
to  Freeman when he was a drunken person but did find that L.D.G.
allowed Freeman to consume alcohol on the premises when he was  a
drunken person.
          We   review  superior  court  decisions  regarding  the
sufficiency  of a complaint for abuse of discretion.57   We  have
held  that courts should construe complaints liberally under  the
theory that a party should be granted the relief to which  he  is
entitled  under  the evidence, regardless of the  theory  of  his
pleadings.58  This is because the complaint's function is to  put
the  opposing  party on notice of the nature of the  claim  being
asserted,  leaving it to discovery and other pretrial  procedures
to  narrow  the  issues.59   Here,  Browns  complaint  alleged  a
violation  of  AS  04.16.030 without  specific  citation  to  any
particular  subsection.   Although the  complaint  did  reference
Christensens  actions  in  serv[ing]  alcoholic  beverages  to  a
drunken  person,  this  language  is  not  so  tailored   to   AS
04.16.030(a)(1) (sell, give, or barter alcoholic beverages  to  a
drunken  person) that it would preclude additional  consideration
of liability under AS 04.16.030 (a)(3) (allow a drunken person to
.  .  .  consume an alcoholic beverage within licensed premises).
Therefore,  L.D.G.  was  on  sufficient  notice  that  Brown  was
alleging  violation  of AS 04.16.030, including  the  prohibition
against  allowing  a  drunken person  to  consume  alcohol  on  a
licensees premises.  Accordingly, the superior court did not  err
in  finding that the complaint was sufficiently broad  to  permit
the jury to determine liability on the consumption theory of dram
shop liability.
     F.   The  Trial  Court Did Not Abuse Its Discretion  in  the
          Trial   on   Damages  by  Admitting  Hearsay  Testimony
          Relating to Non-Economic Damages.
          The   trial  court  admitted  hearsay  testimony,  over
L.D.G.s objection,  regarding Easons plans for spending time with
her  children  in  the future and testimony regarding  statements
made by Easons children about their feelings toward their mother.
L.D.G.  argues that it was error to admit this hearsay  testimony
as  evidence  of  the  non-economic  damages  claimed  by  Easons
children at the trial on damages.  Hearsay is a statement,  other
than  one made by the declarant while testifying at the trial  or
hearing,  offered in evidence to prove the truth  of  the  matter
asserted.60  Hearsay is not admissible unless it falls  within  a
specific exception.61  A hearsay statement is admissible if it is
[a]  statement  of the declarants then existing  state  of  mind,
emotion, sensation, or physical condition (such as intent,  plan,
motive,  design, mental feeling, pain, and bodily health) offered
to prove the declarants present condition or future action.62
          All  of the challenged testimony falls within a hearsay
exception.   The boys grandfather, Robert Brown, testified  about
Easons  current custody arrangements for her sons and  her  plans
for  the  future.  Brown testified that Tracy Eason was  divorced
from the boys father, Terry Eason, and that Justin lived with his
father in Oregon while Jordan had lived with his mother in Oregon
prior  to  her  move to Alaska.  Eason had moved to  Alaska  from
Oregon without Jordan approximately three weeks before her death.
Brown  testified about Easons hopes and plans regarding how  this
move  would affect the amount of contact she had with  her  sons:
Her  plans was to get herself established, get a house, and  then
go  back  down and get Jordan.  And then they would have  swapped
custody  back  and forth after that.  I think  it  was  they  was
figuring  on  Justin coming up in the summer  when  he  wasnt  in
school.   L.D.G. objected to this testimony as hearsay,  and  the
superior  court  overruled the objection.   Browns  wife,  Goldie
Brown,   the   boys   grandmother,  also  testified   about   her
conversations with Eason regarding Easons plans for  custody  and
visitation  with  Justin  and Jordan.  L.D.G.  objected  to  this
testimony  as  well.   The  superior  court  did  not  abuse  its
discretion  in  overruling L.D.G.s objection because  the  Browns
testimony regarding Easons statements about her plans for  future
visitation  with her children was admissible as  a  statement  of
Easons  then  existing  state of mind regarding  her  intent  and
plan[s].63            Because  all of the testimony  that  L.D.G.
challenges as inadmissible hearsay falls clearly within a hearsay
exception,  the  superior court did not abuse its  discretion  in
permitting the testimony at trial.
     G.   The  Superior  Court Did Not Err in Applying  a  Single
          Damages Cap to the Aggregate Non-Economic Damages Award
          of Both Surviving Dependents.
          The  jury  in  the  damages trial  returned  a  verdict
awarding each boy economic damages and each boy $565,798 in  non-
economic  damages.  L.D.G. then moved to impose a single  damages
cap under AS 09.17.010 to the combined awards for total aggregate
non-economic  damages  of $421,824 ($8,000 multiplied  by  52.728
years,  Easons  life expectancy at the time of her death),  split
between  the  two  boys.  Brown responded  by  arguing  that  the
statutory  damages cap is unconstitutional as  a  denial  of  the
          right to trial by jury and a violation of equal protection.
Brown also argued that the statute, if constitutional, should  be
applied  in  this  case  as a separate cap  on  the  non-economic
damages  awarded to each boy.  In the alternative, Brown  argued,
the  provision of the damages cap statute providing a cap of  one
million  dollars to cases of severe permanent physical impairment
should  apply  in this case.  The superior court found  that  the
damages  cap under AS 09.17.010(b) applied in this case and  that
the  statute  imposed  a single cap on all  non-economic  damages
arising  from  Easons death.  The superior court also  determined
that  Brown  had  not  met his burden of  establishing  that  the
statute violated the constitution.
          After   Brown  moved  for  reconsideration,  the  court
ultimately   reaffirmed  its  holding   that   the   statute   is
constitutional,  both on its face and as applied.   The  superior
court  then entered a single award for both boys for non-economic
damages of $421,824.
          1.   The   statutory  damages  cap  on  wrongful  death
               recovery is not unconstitutional on its face as  a
               denial of the right to trial by jury.
          Brown   renews,  on  appeal,  his  argument   that   AS
09.17.010,  the damages cap statute, is unconstitutional  on  its
face  as  a  denial  of the right to trial by jury.   Article  I,
section 16 of the Alaska Constitution provides:
          In   civil   cases  where   the   amount   in
          controversy   exceeds   two   hundred   fifty
          dollars,  the  right of trial by  a  jury  of
          twelve is preserved to the same extent as  it
          existed  at common law.  The legislature  may
          make provision for a verdict by not less than
          three-fourths of the jury and, in courts  not
          of record, may provide for a jury of not less
          than six or more than twelve.
The non-economic damages statute, AS 09.17.010(b), provides:
          Except as provided under (c) of this section,
          the  damages  awarded by a court  or  a  jury
          under  (a)  of this section for  all  claims,
          including a loss of consortium claim, arising
          out  of  a  single injury or  death  may  not
          exceed  $400,000 or the injured persons  life
          expectancy  in  years multiplied  by  $8,000,
          whichever is greater.
We  have previously held, in Evans ex rel. Kutch v. State,64 that
the  cap  on non-economic damages under AS 09.17.010 is  facially
constitutional.65    In  Evans,  a  group  of   injured   parties
contemplating  tort action sought a judgment  from  the  superior
court  declaring the 1997 tort reform legislation  including  the
cap  on non-economic damages at issue in the present case  to  be
unconstitutional on its face.66  The superior court  declined  to
make  that finding and instead granted summary judgment in  favor
of  the  state.67  A four- justice panel of this court heard  the
appeal  and,  in a divided opinion, affirmed the superior  courts
ruling.68   The controlling opinion held that [t]he  decision  to
place  a cap on damages awarded is a policy choice and not a  re-
examination of the factual question of damages determined by  the
jury.69  An evenly divided decision by this court results  in  an
affirmance,70 but that decision is not binding in future cases.71
A full court revisited the issue in C.J. v. State,72 where the cap
on  non-economic damages for wrongful death was upheld against  a
constitutional attack.73
          Brown argues that the damages cap statute violates  the
right  to jury trial because [t]he jurys factual finding  that  a
plaintiff  is  entitled to recover damages is meaningless  unless
the plaintiff can collect those damages, and depriving a litigant
of  that to which a jury has determined him to be entitled  in  a
civil  action,  by legislative fiat, is not consistent  with  the
constitutional  guarantee of the right to jury trial.   But  that
argument is foreclosed by our decisions in Evans and C.J.
          The state, as intervenor, proposes another reason  that
the  common law right to trial by jury incorporated by the Alaska
Constitution  does  not apply to the damages cap  in  this  case:
Wrongful   death  actions  are  statutorily  created   and   have
traditionally   included  limits  on   the   amounts   that   are
recoverable.  The Alaska Constitution provides that the right  of
trial  by a jury of twelve is preserved to the same extent as  it
existed at common law.74  But the right to recovery for a wrongful
death  did not exist in the common law and is instead a  creature
of  statute.75   We have held that [n]o right to  trial  by  jury
attaches  to an action for a statutory remedy unless the  statute
so provides or the statutory remedy is a codification of a common
law remedy.76  Brown argues that the guarantee of a right to trial
by jury applies to statutorily created causes of action for money
damages  to the same extent it applies under the common law.   To
support this argument Brown adopts an overbroad interpretation of
our holding in Loomis Electronic Protection, Inc. v. Schaefer.77
          In  holding that the plaintiffs who brought suit  under
the   statutorily   created  cause  of  action   for   employment
discrimination were entitled to a trial by jury, the Loomis court
held that the legislature had drafted the statute to be analogous
to  a  number  of  tort actions recognized at  common  law,  and,
therefore  that  the  plaintiffs were  entitled  to  recover  the
traditional  form of relief offered in the courts of  law.78  But
there  is  no indication in the present case that the legislature
intended  recovery for wrongful death actions to be analogous  to
other tort actions.  Indeed, Alaskas first wrongful death statute
enacted   by   the  territorial  legislature  in  1900    limited
recoverable  damages  to $10,000.79  The territorial  legislature
amended  this  statute in 1955, but retained  a  damages  cap  of
$50,000.80  Although the wrongful death statute itself no  longer
directly incorporates a damages cap,81 AS 09.17.010 now serves the
same  function.  Accordingly, the constitutions incorporation  of
the  common  law right to a trial by jury does not apply  to  the
application of the damages cap to a statutorily created cause  of
action under the wrongful death act.
          We reaffirm our holdings in Evans and C.J. that the non-
economic damages cap does not violate the constitutional right to
a  trial  by jury.  A damages cap does not intrude on  the  jurys
fact-finding  function  because  the  cap  represents  a   policy
          decision that is applied after the jurys determination.82  The
jury must still make a determination of the amount of damages  to
be  awarded,  and the damages cap is applied only in those  cases
where  the jury has made a determination that the damages  should
be  higher  than the cap.  The law setting a limit  on  allowable
damages  does not destroy the jurys role in awarding damages;  it
merely limits it.
          2.   The   statutory  damages  cap  on  wrongful  death
               recovery  is  not unconstitutional as  applied  in
               this case as a denial of equal protection.
          Brown  next argues that even if the damages cap statute
is  constitutional on its face, it is an unconstitutional  denial
of  equal protection as applied to the facts of this case.  Brown
claims  that  the  damages cap statute, as  applied  to  multiple
statutory  dependents, discriminates irrationally among claimants
who  have siblings by reducing their recovery in [a] manner  that
bears  no relationship to their actual losses.  Brown essentially
argues  that, because the superior court applied a single damages
cap  to  the aggregate non-economic damages awards of  both  boys
together,  each boy recovered half as much as a single  surviving
decedent  would  have received in an otherwise identical  set  of
circumstances.   Therefore,  Brown  argues,  the  brothers   were
penalized for being siblings.
          We  take a multi-step, sliding-scale approach to  equal
protection analysis.83  First, we determine the importance of the
individual interest impaired by the challenged enactment.84  Next,
we  examine  the importance of the state interest underlying  the
enactment,  that  is,  the  purpose  of  the  enactment.85    The
importance  we  attach  to the individual interest  dictates  the
level  of  importance of the state interest  from mere legitimacy
to  a  compelling interest  that will satisfy equal protection.86
Finally, we examine the nexus between the state interest and  the
states means of furthering that interest.87  The importance of the
individual interest also controls the required degree  of  nexus,
from substantial relationship to least restrictive means.88
          In   Evans,   the  controlling  opinion  rejected   the
plaintiffs  claim that the damages cap impaired  their  important
interest  in  access  to  the courts and instead  held  that  the
plaintiffs  interests in unlimited damages are merely economic.89
In  C.J.,  we  adopted  the  equal  protection  analysis  of  the
controlling  opinion in Evans, holding that we have  consistently
held that restrictions on the types or amounts of damages that  a
plaintiff  can pursue in court impair economic interests  only.90
Economic  interests receive only minimal protection  under  equal
protection analysis.91  Under this minimum level of scrutiny  the
states  objective must be legitimate, and the means for achieving
the  objective  must bear a fair and substantial relationship  to
the accomplishment of the objective.92
          We  held  in  C.J.  that the non-economic  damages  cap
survives minimal scrutiny, noting that the court does not require
a  perfect  fit  between  a legislative  classification  and  the
government objective it is intended to further, and that although
the  rationale  underlying the legislation  should  be  logically
plausible, there is no requirement that it be proved in  court.93
          The legislature appears to have intended, in passing the tort
reform   legislation  that  included  AS  09.17.010,  to  control
excessive compensation for tortious injuries,94 and to reduce the
costs  of  liability and malpractice insurance  premiums.95   The
court in C.J. concluded that the legislature was entitled to make
the  conclusions  that  provided the rationale  for  passing  the
legislation,  and  that  the legislature  could  reasonably  have
concluded that any alternative method of lowering insurance costs
would  have  been less fair than a cap on noneconomic  damages.96
The court therefore held that the damages cap satisfies the means-
end fit requirement.97
          Here,  Brown  focuses his arguments  on  the  issue  of
fairness,  claiming  that  an  otherwise  constitutional  cap  on
recovery may not be constitutionally applied in situations  where
there  is  irrational discrimination among claimants  based  upon
circumstances  that  bear no relationship to  the  actual  losses
sustained  by  the  claimants.  To support this  argument,  Brown
cites to Gilmore v. Alaska Workers Compensation Board,98 where we
held that a statute prescribing the wage base on which an injured
workers  disability benefits were calculated was unconstitutional
as  a  violation of equal protection because it had the potential
to produce substantially different compensation rates for workers
who   were  in  important  respects  similarly  situated.99    We
determined in Gilmore that the statute at issue was only  subject
to  minimal scrutiny,100 but that it nevertheless violated  equal
protection  because the benefits levels it produced  for  injured
workers  were only randomly related to an injured workers  actual
losses.   Therefore, did not bear a substantial  relationship  to
the goal of compensating injured workers for their actual losses.101
In this instance, Brown argues, it is similarly unfair to apply a
single  cap  to  the  aggregate non-economic  damages  awards  of
multiple   surviving  dependents  because  each  dependent   then
receives  less of the award than would be available to  a  single
surviving dependent in otherwise identical circumstances.   Brown
asserts  that  the  amount  of damages each  surviving  dependent
receives  is  determined, at least in  part,  by  the  number  of
siblings or other dependents with whom they must split the award,
and not by each individuals actual losses.
          L.D.G.  argues that the application of a single damages
cap regardless of the number of surviving dependents is necessary
to  achieve  the legislatures objective of controlling litigation
costs  and  insurance rates.  L.D.G asserts that the alternative,
damages   awards   that  fluctuate  based  on   the   number   of
beneficiaries,  would  result in unpredictable,  and  potentially
very  large,  damages awards that would frustrate  the  expressed
intent of the statute.102  L.D.G. also responds to Browns fairness
claims by observing that we held in C.J. that fairness is  not  a
determinative factor in a minimum scrutiny analysis.  We noted in
C.J.  that  we  appreciate that there will  be  severely  injured
persons   who   are  under-compensated  as  a  result   of   this
legislation, and we are under no illusion that this  result  will
seem  fair to them, and that it was not the role of the court  to
make determinations of whether damages caps are good policy.103
          L.D.G.s   assessment  is  correct.   The   legislatures
          approach of imposing a single statutory cap on non-economic
damages for all claims arising from a single death bears  a  fair
and  substantial  relationship  to  the  legislatures  legitimate
objective  of  reducing  the costs of liability  and  malpractice
insurance premiums.  Although the amount of non-economic  damages
that individual beneficiaries receive may differ depending on the
number  of other beneficiaries whose claims arise from  the  same
death, the estates themselves are still treated equally.  Setting
aside the question of whether the damages cap is good policy when
applied   to  multiple  claimants,  the  statutory  approach   of
AS 09.17.010 satisfies the requirements of equal protection.
          3.   The  trial  court  did not err  in  the  trial  on
               damages   in   imposing  a  single   damages   cap
               applicable to all of the decedents dependents.
          After  the jury returned its verdict awarding  each  of
Easons  sons  $565,798 in non-economic damages,  L.D.G.  filed  a
motion  requesting  the court to apply a single  damages  cap  of
$400,000  or  $8,000  multiplied by the life  expectancy  of  the
injured  party, whichever is greater to the entire award.   Brown
opposed  this motion on multiple grounds, including  claims  that
the  court must impose a separate cap to the individual award  to
each boy, and that the appropriate cap was the one million dollar
limit  for certain personal injury awards.  The court found  that
the   damages  cap  statute  did  not  directly  address  actions
involving multiple claimants, but that when taken as a whole  the
statute applies a single damages cap to all claims arising from a
single  wrongful  death, regardless of the number  of  claimants.
The  court  granted L.D.G.s motion and entered  judgment  in  the
amount  of  $421,824 ($8,000 multiplied by Easons life expectancy
of  52.728 years) split between the two boys.  Brown now asks  us
to  narrowly  construe the damages cap statute and to  hold  that
under  AS  09.17.020(b) Easons sons each have  a  separate  claim
subject  to  a  separate damages cap.  In the alternative,  Brown
argues  that  we should hold that the one million dollar  damages
cap  for  personal  injuries involving severe permanent  physical
impairment under AS 09.17.020(c) applies in this case.
          We  apply  our  independent judgment when  reviewing  a
trial  courts interpretation of a statute, looking to the meaning
of  the language, the legislative history, and the purpose of the
statute, and adopting the rule of law that is most persuasive  in
light of precedent, reason, and policy.104  As a threshold issue,
Brown  argues  that  the damages cap statute should  be  narrowly
construed because it derogates the common law rule that permits a
jury  to  determine  damages unfettered by statutory  constraint,
subject to judicial review only.105  L.D.G. argues that we are not
required  to  construe the damages cap statute narrowly  in  this
case  because the right to recovery for a wrongful death did  not
exist  in the common law and is instead a creature of statute.106
Brown asserts that although the right to recover damages for  the
wrongful  death  of  another  is of  statutory  origin,  we  have
previously held in Loomis Electronic Protection, Inc. v. Schaefer107
that  the  Alaska Constitutions incorporation of the  common  law
right  to  a jury trial applies to statutorily created causes  of
action  to the same extent as it applies to claims arising  under
          the common law.108  As discussed above in section IV.G.1, Loomis
has  a  narrower holding than that advanced by Brown.  In holding
that  the  plaintiffs  who  brought suit  under  the  statutorily
created  cause  of  action  for  employment  discrimination  were
entitled  to  a  trial by jury, the Loomis court  held  that  the
legislature had drafted the statute to be analogous to  a  number
of  tort actions recognized at common law and that therefore  the
plaintiffs  were  entitled to recover  the  traditional  form  of
relief  offered in the courts of law.109  We did not,  therefore,
hold  that all statutorily created causes of action are  entitled
to  the same guarantees and protections afforded under the common
law.  Accordingly, we need not narrowly construe the damages  cap
statute as it is applied to a statutorily created cause of action
under  the wrongful death statute.  However, because the language
of  the statute and the legislative history at issue in this case
are  sufficiently clear under any construction, this question  of
the scope of statutory interpretation is essentially moot.
          The  non-economic damages statute, AS 09.17.010,  reads
in pertinent part:
          (a)  In  an  action  to recover  damages  for
          personal   injury  or  wrongful  death,   all
          damages  claims for noneconomic losses  shall
          be   limited   to  compensation   for   pain,
          suffering,      inconvenience,       physical
          impairment, disfigurement, loss of  enjoyment
          of   life,  loss  of  consortium,  and  other
          nonpecuniary damage.
          (b)  Except  as provided under  (c)  of  this
          section, the damages awarded by a court or  a
          jury  under  (a)  of  this  section  for  all
          claims, including a loss of consortium claim,
          arising  out of a single injury or death  may
          not  exceed  $400,000 or the injured  persons
          life   expectancy  in  years  multiplied   by
          $8,000, whichever is greater.
          (c)  In  an  action for personal injury,  the
          damages  awarded by a court or jury that  are
          described under (b) of this section  may  not
          exceed   $1,000,000  or  the   persons   life
          expectancy  in years multiplied  by  $25,000,
          whichever  is greater, when the  damages  are
          awarded   for   severe   permanent   physical
          impairment or severe disfigurement.
Brown  argues that the phrase arising out of a single  injury  or
death  from section (b) should be interpreted as applying not  to
Easons  death  but  to the separate claims of  each  of  her  two
surviving  dependents,  Justin  and  Jordan.   To  support   this
assertion,  Brown  notes that every surviving  dependent  has  an
individual  cause  of action for loss of parental  consortium,110
regardless  of  whether  a  suit is  brought  on  behalf  of  the
individual  dependents  by  a single personal  representative.111
Brown argues, then, that under the statute Justin and Jordan  are
each an injured person, and that therefore a separate damages cap
should  be  applied  to each, with the amount of  the  individual
damages cap calculated based on each boys life expectancy.
          L.D.G.  responds  by arguing that the  meaning  of  the
statute  is  plain and unambiguous on its face and that  the  cap
applies  to  all claims arising out of a single death,  including
all  wrongful death claims arising from a single death regardless
of  the  number  of children or wrongful death act  beneficiaries
making  claims.  L.D.G. further bolsters its argument by pointing
to  the  legislative history behind AS 09.17.010, especially  the
legislatures  intent  to  address  the  perceived   problems   of
excessive damages awards and increased costs for malpractice  and
other liability insurance.112  L.D.G. points out that the explicit
intent  of  the legislature in imposing the non-economic  damages
cap  on  claims arising out of a single death would be frustrated
rather  than  furthered by a construction  of  the  statute  that
effectively  removed the cap in situations where the decedent  is
survived  by  many  dependents  who  have  suffered  non-economic
damages as a result of a single death.
          The  states brief and the briefs of amicus curiae  also
dispute Browns interpretation of the statute. They note that even
if   each  of  Easons  surviving  dependents  has  an  individual
consortium  claim, these consortium claims are  derivative  of  a
single  death.113   They further point to additional  legislative
history,  quoting  Representative  Porters  presentation  of   an
overview  of  the damages cap bill to the Senate Rules  Committee
and  his  statement that the versions of the bill from  both  the
finance and rules committees apply the cap per occurrence.114
          L.D.Gs  argument that the statute applies a single  cap
to  all  consortium claims arising from a single death regardless
of  the number of claimants is persuasive, particularly in  light
of  the  legislative history.  The clear language of the  statute
indicates that a single cap applies to all claims arising out  of
a  single . . . death.115  There is no modifier of the phrase all
claims.   The  statute references consortium claims in  the  same
sentence in which it applies the single cap to all claims arising
out  of a single injury or death.116  This strongly suggests that
the  legislature was aware that multiple individuals  could  have
claims  arising  from  a single death or  injury,  and  that  the
legislature nevertheless intended to apply a single  cap  to  all
such  claims.  Had the legislature intended the meaning  advanced
by  Brown,  it would have specified that the cap applied  to  all
claims  brought  by  each  claimant.   Instead,  the  legislative
history  indicates that the legislature intended for the  cap  to
apply to all claims arising from each occurrence.117
          Brown  argues, in the alternative, that subsection  (c)
which  provides a cap of $1,000,000 for cases of severe permanent
physical impairment  should apply in this case.118  This argument
hinges on Browns assertion that an injury which leads to death is
obviously  the ultimate in severe permanent physical  impairment.
In  his  reply brief, Brown identifies what he interprets  as  an
inconsistency  between  the language of  sections  (b)  and  (c).
Section (b) provides that the non-economic damages arising out of
a  single injury or death may not exceed $400,000 or the  injured
persons  life expectancy in years multiplied by $8,000, whichever
is greater.119  Section (c) provides that the damages in an action
          for personal injury may not exceed $1,000,000 or the persons life
expectancy in years multiplied by $25,000, whichever is  greater,
when  the  damages  are  awarded for  severe  permanent  physical
impairment or severe disfigurement.120  Brown argues that because
section  (b)  which applies to both personal injury and  wrongful
death   actions   refers  only  to  the  injured   persons   life
expectancy,  the  statute  implicitly includes  deceased  persons
within  the  broader  category of injured  persons.   Brown  then
argues  that if deceased persons and injured persons are  treated
the  same  under  the statute, and if  as L.D.G.  and  the  state
assert   the  statute applies only one damages cap to all  claims
arising from Easons death, then Easons death should be considered
a  personal injury and the greater damages cap under section  (c)
should  apply.  Essentially Brown argues that the statute  cannot
be  interpreted  in  a wrongful death action to  both  apply  one
damages cap measured by the life expectancy of the injured  (i.e.
deceased)  person,  and  to  exclude deceased  persons  from  the
category  of  injured persons having experienced the most  severe
permanent physical impairment.
          Browns  logic  is  not  persuasive.   It  is  logically
consistent  to  interpret the statute as applying, under  section
(b),  one  cap to claims for damages from most injuries  and  all
deaths,  and applying, under section (c), a higher cap to certain
injuries  with  the potential for the most serious, debilitating,
and  long-term impacts on the injured person.  The impact of most
injuries  on  the  injured  person, and  of  all  deaths  on  the
survivors of the decedent, are no doubt significantly felt in the
short  term and capable of some lasting effects in the long term.
However, while most injured persons and surviving dependents have
a strong chance of moving on with their lives in the aftermath of
the  unfortunate events that give rise to their claims, there are
some  injured persons whose injuries are so significant that they
will  permanently and seriously alter the course of  the  injured
persons life.  It is these severely injured persons, and not  the
survivors of a decedent, whom the legislature recognized were  in
need  of  the  greatest  non-economic damages  recoveries.   This
interpretation avoids the logical inconsistencies  identified  by
Brown,  but without the strained logic that death is  a  form  of
impairment for purposes of calculating damages.
          The  superior court, therefore, did not err in  finding
that a single damages cap calculated under section (b) should  be
applied  to  the aggregate non-economic damages awarded  to  both
boys in this case.  Additionally, the superior court did not  err
in  calculating  the size of the damages cap applicable  in  this
case  by  multiplying Easons life expectancy  (52.728  years)  by
$8,000 to reach a total cap of $421,824.
V.   CONCLUSION
          For the reasons discussed above, we AFFIRM the superior
courts  decision  in  all  respects with  the  exception  of  its
dismissal  of  Larry Gjovig from the lawsuit, and we  REMAND  for
trial of the issue of piercing the corporate veil.
                                        
_______________________________
     1     More  extensive analysis of the relevant  standard  of
review for particular issues is provided where appropriate in the
discussion below.

     2     Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974).

     3    See Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999)
(amendment of complaint).

     4    Yang v. Yoo, 812 P.2d 210, 217 (Alaska 1991).

     5     Marsingill  v. OMalley, 128 P.3d 151,  155-56  (Alaska
2006)  (quoting Alderman v. Iditarod Props., Inc., 104 P.3d  136,
140 (Alaska 2004).

     6     Pagenkopf  v. Chatham Elec., Inc., 165 P.3d  634,  646
n.50 (Alaska 2007).

     7     State  v. Alaska Civil Liberties Union, 978 P.2d  597,
603 (Alaska 1999).

     8     Alaskans For Efficient Govt, Inc. v. Knowles, 91  P.3d
273, 275 (Alaska 2004).

     9     Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974); see also Kava v. American Honda Motor Co., 48 P.3d
1170, 1176 (Alaska 2002).

     10    Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007); see
also  Robles  v.  Shoreside Petroleum, Inc.,  29  P.3d  838,  841
(Alaska 2001).

     11    882 P.2d 389 (Alaska 1994).

     12    Id. at 397 (Alaska 1994) (internal citations omitted);
see  also Kavorkian v. Tommys Elbow Room, Inc., 711 P.2d 521, 523
(Alaska 1985).

     13    See Winschel, 171 P.3d at 148-49.

     14     McCarthy v. McCarthy, 753 P.2d 137, 138 (Alaska 1988)
(holding  that  it  was  unreasonable  for  jury  to  find   that
defendants  negligence  in pulling out  of  parking  lot  without
stopping  was not legal cause of collision with car pulling  into
parking lot).

     15    See Winschel, 171 P.3d at 148.

     16    882 P.2d at 397; see also Kavorkian, 711 P.2d  at 523.

     17    McCarthy, 753 P.2d at 139.

     18     See  Winschel v. Brown, 171 P.3d at 42,  148  (Alaska
2007).

     19    The jury, on the special verdict form, declined to find
that  an  employee of the J Bar B [sold] alcohol to R.V.  Freeman
with  criminal negligence when he was a drunken person,  but  did
find  that  an  employee of the J Bar B with criminal  negligence
allow[ed]  R.V. Freeman to consume an alcoholic beverage  in  the
bar when he was a drunken person.

     20    Yang v. Yoo, 812 P.2d 210, 217 (Alaska 1991).

     21     Marsingill  v. OMalley, 128 P.3d 151, 155-56  (Alaska
2006)  (quoting Alderman v. Iditarod Props., Inc., 104 P.3d  136,
140 (Alaska 2004).

     22    AS 09.17.080(a)(2).

     23    Evans ex rel Kutch v. State, 56 P.3d 1046, 1060 (Alaska
2002) (quoting AS 09.17.080(a)(2) (emphasis in original)).

     24    AS 09.17.080(a)(2).

     25    At the time of the hearing Freeman was incarcerated in
Arizona and was therefore locatable.  Freeman was subject to long
arm service under AS 09.05.015(a)(3) because all actions at issue
in  this  case occurred within Alaska.  Brown never  showed  that
Freeman could not be joined.

     26    AS 09.55.580(b).

     27    AS 09.55.580(c).

     28    484 N.E.2d 830 (Ill. App. 1985).

     29    Id. at 833.

     30    253 N.W.2d 736 (Mich. App. 1977).

     31    Id. at 738.

     32    112 N.W.2d 329 (S.D. 1961).

     33    Id. at 335-36.

     34     AS  09.55.580(c).  While it is true that the  factors
listed  are not exclusive, id., the jury is required to  consider
the  facts  and  circumstances relating to fixing the  amount  of
damages.   Id.   The  evidence L.D.G. sought  to  admit  did  not
concern damages; it concerned causation.

     35    AS 09.55.580(b).

     36    It does not appear that the court ever issued a written
order  regarding  the  dismissal of  the  claims  against  Gjovig
personally,  and  the  courts final order does  not  contain  any
mention  of  this issue.  Both parties treat the superior  courts
ruling on the issue at the hearing as a final order.

     37     McCormick  v. City of Dillingham, 16  P.3d  735,  743
(Alaska 2001).

     38    Under the federal Internal Revenue Code, a subchapter S
corporation  is  exempt  from corporate income  tax  because  net
profits  and  net losses are passed directly on to the  corporate
shareholders. 26 U.S.C.A. Subt. A, Ch. 1, Subch. S.

     39    McCormick, 16 P.3d at 743.

     40    Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92
(Alaska 1974).

     41    Id. at n.12.

     42     Pyramid Printing Co. v. Alaska State Commn for  Human
Rights, 153 P.3d 994, 1000 (Alaska 2007).

     43     See  Dole Food Co. v. Patrickson, 538 U.S.  468,  475
(2003) (noting that [t]he doctrine of piercing the corporate veil
.  .  .  is  the rare exception, applied in the case of fraud  or
certain other exceptional circumstances).

     44     Id.  (quoting Elliott v. Brown, 569 P.2d  1323,  1326
(Alaska 1977)).

     45     646 P.2d 229 (Alaska 1982).

     46     Id. at 235. In Jackson v. General Elec., 514 P.2d 1170
(Alaska  1977)  we  first  used the multi-factor  test  for  mere
instrumentality in the parent-subsidiary context; in  Uchitel  we
imported  that test into the corporation-shareholder  context  to
create  a disjunctive test for piercing the corporate veil.   See
also  Nerox Power Sys., Inc. v. M-B Contracting Co., 54 P.3d 791,
801-02  (Alaska 2002) (referring to mere instrument  test  as  an
alternate  theory of personal liability to misconduct  standard);
Philip  Reed  Strauss, Control and/or Misconduct: Clarifying  the
Test  for Piercing the Corporate Veil in Alaska, 9 Alaska L. Rev.
65  (1992)  (describing some vacillation between our  disjunctive
and  conjunctive  applications of the two tests,  and  concluding
that  disjunctive treatment  that the tests are distinct ways  to
justify  piercing  the  corporate veil  is the  most  appropriate
choice on both precedent and policy grounds).

     47    Uchitel, 646 P.2d at 235.

     48     Nerox  Power, 54 P.3d at 802.  See also McCormick  v.
City  of Dillingham, 16 P.3d 735, 744-45 (Alaska 2001) (upholding
lower  courts decision to pierce corporate veil even though first
factor  was  not  satisfied and fifth  factor  was  not  directly
addressed);  Murat  v. F/V Shelikof Strait, 793  P.2d  69,  76-77
(Alaska 1990) (considering possibility that instrumentality could
be  found on basis of only two out of six factors, but ultimately
declining to pierce veil because of inadequate facts).

     49     Some  of the bar employees had never heard of  L.D.G.
Some  employees  never saw a W-2 form until after the  litigation
was  initiated.   Gjovig  admitted  in  testimony  that  he  paid
employees with cash out of his personal pocket.

     50     Gjovig  testified that he received a  $30,000  annual
salary from L.D.G., but it was not reflected on the corporate tax
return for 1998.  That corporate tax return showed total salaries
of under $10,000, although Gjovig testified that the bar was open
every day of the year except Christmas.

     51    See supra notes 50-51.

     52     For  example,  Gjovig testified that  he  leased  the
restaurant portion of his facility to his girlfriend, who paid no
rent  for  the  alleged lease.  But the bartender testified  that
there  was  only one cash register and patrons of the  restaurant
could  order  drinks  from the bar.  Gjovig  testified  that  the
reason  L.D.G. did not show more income and expenses on  its  tax
returns  was because someone else owned the restaurant  business.
But   that  was  contradictory  to  L.D.G.s  liquor  license  and
statements of business on L.D.G.s tax return.

     53     See  Uchitel Co. v. Telephone Co., 646 P.2d 229,  234
(Alaska 1982).

     54    Id. at 234-35.

     55     L.D.G.  further objected to this jury instruction  at
trial on the theory that the exceptions to the dram shop immunity
statute did not include violations for allowing a drunken  person
to  consume  alcohol on the premises, but L.D.G. does  not  renew
that  specific  objection  on appeal.   We  have  held  that  the
exceptions  to  the dram shop immunity statute, AS  04.21.020(a),
include  any violation of AS 04.16.030.  See Gonzales v. Krueger,
799 P.2d 1318, 1320 (Alaska 1990) (holding that AS 04.21.020 does
not   immunize  vendors  who  violate  AS  04.16.030)    (quoting
Williford v. L.J. Carr Invs., 783 P.2d 235, 239 (Alaska 1989)).

     56    L.D.G., in its appeal, categorizes the superior courts
action  as  permitting  Brown to amend his  complaint  to  allege
liability, but this argument mischaracterizes the courts  action.
Brown  never  moved to amend his complaint.  Instead,  the  court
responded  to L.D.G.s objection to the jury instruction  on  dram
shop  liability  by  ruling that the complaint  was  sufficiently
broad.

     57     See  Taylor  v. Johnston, 985 P.2d 460,  463  (Alaska
1999).

     58     Griffith  v. Taylor, 937 P.2d 297, 307 (Alaska  1997)
(quoting Brayton v. City of Anchorage, 386 P.2d 832, 833  (Alaska
1963)).

     59    Id. (internal quotation omitted).

     60    Alaska R. Evid. 801.

     61    Alaska R. Evid. 802.

     62    Alaska R. Evid. 803(3).

     63    Id.  L.D.G. also made a hearsay objection to a question
for  Robert Brown submitted by one of the jurors that asked about
[w]hat  memories does Jordan have of his mother.  L.D.G. and  the
court had a prolonged discussion regarding the hearsay rule,  and
the  court overruled the objection.  Brown was then asked Do  you
have  any way of knowing what memories Jordan has of his  mother?
Brown  answered No, because he dont talk to me about  it.   There
was  no prejudice to L.D.G. because Brown did not testify  as  to
any statements made to him by Jordan regarding his memories of or
feelings toward his mother.

     64    56 P.3d 1046 (Alaska 2002).

     65    Id. at 1049.

     66    Id. at 1048.

     67    Id.

     68    Id. at 1049, 1070.

     69    Id. at 1051.

     70     See  Ward v. Lutheran Hosps. & Homes Socy of America,
Inc., 963 P.2d 1031, 1037 n.11 (Alaska 1998).

     71    See City of Kenai v. Burnett, 860 P.2d 1233, 1239 n.11,
1246 (Alaska 1993) (Compton, J., concurring).

     72    151 P.3d 373 (Alaska 2006).

     73    Id.

     74    Alaska Const., art. 1,  16.

     75     See  In  re  Estate of Maldonado, 117 P.3d  720,  724
(Alaska 2005).

     76     Fairbanks N. Star Borough Sch. Dist. v.  Duncan,  878
P.2d 641, 641 (Alaska 1994).

     77    549 P.2d 1341 (Alaska 1976).

     78     Id. at 1344 (quoting Curtis v. Loether, 415 U.S. 189,
194-96 (1974)).

     79     See Kulawik v. ERA Jet Alaska, 820 P.2d 627, 631  n.8
(Alaska  1991)  (quoting  353, pt. IV, Carters  Annotated  Alaska
Code (1900)).

     80    See id. at 633 n.14 (quoting ch. 153,  1, SLA 1955).

     81    AS 09.55.580.

     82    Evans ex al. Kutch v. State, 56 P.3d 1046, 1051 (Alaska
2002).

     83     Wilkerson  v.  State, 993 P.2d 1018, 1022-23  (Alaska
1999).

     84    Id. at 1023 (quoting State Depts of Transp. & Labor v.
Enserch Alaska Constr. Inc., 787 P.2d 624, 631-32 (Alaska 1989)).

     85    Id.

     86    Id.

     87    Id.

     88    Id.

     89     56  P.3d 1046, 1052-53 (Alaska 2002) (citing Reid  v.
Williams,  964 P.2d 453, 458 (Alaska 1998) and Gilmore v.  Alaska
Workers Comp. Bd., 882 P.2d 922, 926-27 (Alaska 1994)).

     90     C.J.  v.  State, Dept of Corrs., 151  P.3d  373,  379
(Alaska 2006).

     91    Reid v. Williams, 964 P.2d 453, 458 (Alaska 1998).

     92     Evans, 56 P.3d at 1053 (citing Reid, 964 P.2d at  458
and  Gilmore  v.  Alaska Workers Comp. Bd.,  882  P.2d  922,  926
(Alaska 1994)).

     93    151 P.3d at 380 (internal citations omitted).

     94    Ch. 26, 1(1), SLA 1997.

     95    Ch. 26, 1(3),(5), SLA 1997.

     96    C.J. v. State, Dept of Corrs., 151 P.3d 373, 381(Alaska
2006).

     97    Id.

     98    882 P.2d 922 (Alaska 1994).

     99    Id. at 923 (Alaska 1994).

     100    Id. at 926-27.

     101    Id. at 928.

     102     The  related  issue of whether the statute  actually
requires  separate damages caps for each beneficiary claimant  is
discussed in more detail below in part IV.G.3.

     103     C.J.  v.  State, Dept of Corrs., 151 P.3d  373,  382
(Alaska 2006).

     104     Enders  v.  Parker, 66 P.3d 11, 13-14 (Alaska  2003)
(internal citations omitted).

     105    See Univ. of Alaska v. Shanti, 835 P.2d 1225, 1228 n.5
(Alaska 1992) (noting that [s]tatutes which establish rights that
are  in  derogation of common law are to be construed in a manner
that effects the least change possible in common law).

     106     See  In  re Estate of Maldonado, 117 P.3d  720,  724
(Alaska 2005).

     107    549 P.2d 1341 (Alaska 1976).

     108     Id.  at 1344 (Alaska 1976) (holding that article  I,
section 16, of the Alaska Constitution guarantees right to   jury
trial  in  action brought under the unlawful employment practices
statute, AS 18.80.220).

     109     Id. (quoting Curtis v. Loether, 415 U.S. 189, 194-96
(1974)).

     110     See Truesdell v. Halliburton Co., 754 P.2d 236,  237
(Alaska  1988) (recognizing a minor childs independent  cause  of
action for loss of parental consortium).

     111     See  In  Re Estate of Pushruk, 562 P.2d 329,  330-31
(Alaska  1977)  (noting  that  in wrongful  death  action,  where
decedent    survived   by   statutory   beneficiaries,   personal
representative  is  nominal party only, and that  the  action  is
brought  on  behalf of the statutory beneficiary and damages  are
measured by the loss to the survivors).

     112     Evans  ex  rel. Kutch v. State, 56 P.3d  1046,  1053
(Alaska 2002) (citing to legislative goals for AS 09.17.010 given
at ch. 26, 1(1-5), SLA 1997).

     113    See Chizmar v. Mackie, 896 P.2d 196, 212 n.15 (Alaska
1995) (noting that loss of consortium is a derivative claim).

     114     Minutes, Senate Rules Comm. Hearing on H.B. 58,  No.
075,  9 (April 15, 1997).

     115    AS 09.17.010(b).

     116    Id.

     117    Minutes, Senate Rules Committee Hearing, supra note 110
at 46.

     118    AS 09.17.010(c).

     119    AS 09.17.010(b).

     120    AS 09.17.010(c).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC