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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. North Slope Borough v. Brower (08/28/2009) sp-6406
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
| NORTH SLOPE BOROUGH, | ) |
| ) Supreme Court No. S- 12956 | |
| Appellant, | ) |
| ) Superior Court No. 2BA-06-06 CI | |
| v. | ) |
| ) O P I N I O N | |
| ISABEL BROWER, Individually and | ) |
| as Personal Representative of Alfred | ) No. 6406 August 28, 2009 |
| Brower, Deceased, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Second Judicial District, Barrow,
Michael I. Jeffery, Judge.
Appearances: Timothy M. Lynch, Lynch & Blum,
PC, Anchorage, and Linda B. Clapham, Gordon &
Rees, LLP, Seattle, Washington, for
Appellant. David Henderson, Law Offices of
David Henderson, Bethel, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
After Alfred Brower died in a snow machine accident,
his mother, Isabel Brower, sued the North Slope Borough under the
survival of claims statute, AS 09.55.570, and the wrongful death
statute, AS 09.55.580. A jury found that Isabel was dependent on
Alfred, entitling her to damages as a statutory beneficiary under
the wrongful death statute. Among other things, the jury awarded
Isabel compensation for Alfreds pre-death pain and suffering and
his lost future earnings. The borough appeals on various damages
issues. It argues primarily that the trial court erroneously
allowed Isabel to recover damages both as the wrongful death
statute statutory beneficiary and as the personal representative
of Alfreds estate. It also argues both that Isabel did not
sufficiently prove that she was dependent on Alfreds earnings and
that even if she were entitled to his future earnings, they
should be measured by Isabels life expectancy, not Alfreds.
Finally, it argues that the trial court abused its discretion by
refusing to grant a new trial or remittitur of the damage award
based on Isabels maximum possible recovery. We affirm, because
Kulawik v. ERA Jet Alaska1 controls most of these issues.
II. FACTS AND PROCEEDINGS
Alfred Brower died in late May 2005, when his snow
machine went into a hole in the ice near Barrow. The hole had
been dug by the North Slope Borough Department of Public Works.
Alfred was then eighteen years old, was unmarried, and had been
living in Barrow with his widowed mother, Isabel Brower. He was
unemployed, but hunted and fished for Native subsistence foods
that he shared with his mother. He also helped his mother around
the house by cooking, cleaning, and doing maintenance work. He
had no will.
After Alfreds death, Isabel opened an estate on his
behalf and sued the North Slope Borough. She sought damages both
as the personal representative of the estate and on her own
behalf as an other dependent under the wrongful death statute, AS
09.55.580(a).2 She alleged that the boroughs negligence caused
Alfreds death and pre-death pain and suffering, and sought all
categories of loss allowed under the wrongful death statute, AS
09.55.580, and under the survival of claims statute, AS
09.55.570.3 The case was tried to a jury in August 2007.
At trial Isabel called a forensic economist who
testified about the economic impact Alfreds death had on Isabel
and on Alfreds estate. He testified that Isabels life expectancy
at the time of her sons death was about twenty-five and a half
more years (assuming she would live to age eighty-two) and that
Alfred would have had a life expectancy of fifty-four and a half
more years (assuming he would have lived to age seventy-three).
The economist calculated the value of the earnings Alfred would
have made as a heavy truck driver, as well as the present value
of the loss of his household services and subsistence support.4
He testified that the present value of Alfreds lost future
earnings was $877,700, and that the present value of his
subsistence support (hunting and fishing) and non-market services
(household support) was $565,400. Adding those two figures, he
testified that the total present value of the future economic
losses caused by Alfreds death was $1,443,100.
The jury returned a verdict finding that the borough
was liable for Alfreds death. The jury also found that Isabel
was dependent on Alfred at the time of his death, entitling her
to damages as a statutory beneficiary under the wrongful death
statute. The jury awarded Isabel damages in the following
categories:
(a) Past Non-Economic Loss to Alfred Brower
(pre-death pain and suffering of Alfred
Brower):
$400,000.00
(b) Past Non-Economic Loss to Isabel Brower
(including loss of consortium, affection
and companionship and pain and suffering
of Isabel Brower):
$250,000.00
(c) Past Economic Loss of Isabel Brower
(loss of support and assistance and loss
of past earnings of Alfred Brower):
$62,250.00
(d) Future Non-Economic Loss to Isabel
Brower (loss of consortium, affection and
companionship, pain and suffering):
$200,000.00
(e) Future Economic Loss of Isabel Brower
(loss of support and assistance and loss of
future earnings of Alfred Brower) (reduced
to present value):
$844,115.00
(Emphasis in original.) The trial court reduced the jurys non-
economic damage awards per the parties agreement about the
application of the AS 09.17.010 statutory cap on damages and
awarded Isabel prejudgment interest, costs, and attorneys fees.
The resulting final judgment was $1,564,071.40.
The borough moved for a new trial or a remittitur. The
trial court denied the motion.
The borough appeals.
III. STANDARD OF REVIEW
This case primarily raises questions of law and
statutory interpretation, to which we apply our independent
judgment.5 We review for abuse of discretion a trial courts
denial of a new trial or remittitur, reversing only when we are
left with a firm conviction on the whole record that the trial
judge made a mistake in refusing to order a remittitur or grant a
new trial and where intervention on our part is necessary to
prevent a miscarriage of justice.6
IV. DISCUSSION
A. Whether It Was Error To Allow Isabel To Recover Damages
for Alfreds Pre-Death Pain and Suffering and for His
Future Earnings
The borough argues that awarding damages for Alfreds
pre-death pain and suffering and for his future earnings
impermissibly allowed Isabel to recover as both a personal
representative of Alfreds estate and as a statutory beneficiary
under the wrongful death statute. It argues that the wrongful
death statute, AS 09.55.580, prevents an estate from recovering
when there are statutory beneficiaries and creates a mutually
exclusive dichotomy between recovery as a statutory beneficiary
and recovery on behalf of the estate.
The trial court rejected the boroughs position,
reasoning that the wrongful death statute reflects [t]he
legislative policy that a dependent be eligible for full
pecuniary damages that an estate would have recovered and that
when at least one statutory beneficiary is found to exist, the
beneficiary must be able to recover all pecuniary damages to an
estate.7
1. Pre-death pain and suffering damages
The borough argues that Isabel, in her capacity as the
representative of Alfreds estate, should not have recovered
damages for Alfreds pre-death pain and suffering because Alaska
does not allow an Estate to recover where there are statutory
beneficiaries. It bases this argument on language in the
wrongful death statute, which states that the amount recovered
under the statute shall be exclusively for the benefit of the
decedents spouse and children . . . or other dependents.8 But
the pre-death pain and suffering damages were not recovered under
the wrongful death statute, AS 09.55.580; they were recovered
under the survival statute, AS 09.55.570. The boroughs argument
as to this award is therefore without merit. Isabel was both a
wrongful death action other dependent and the representative of
Alfreds estate. In her latter capacity she was entitled to
recover the award for Alfreds pre-death damages.9 Nothing in the
wrongful death statute prevents a person who is a statutory
beneficiary under that statute and who recovers wrongful death
damages under that statute from also being a personal
representative of the decedents estate or prevents the personal
representative from recovering for the decedents pre-death pain
and suffering under the survival statute.
2. Lost future earnings
The borough also argues that the wrongful death
statutes exclusively language in AS 09.55.580(a) barred Isabels
recovery of Alfreds future earnings.10 As the borough points out,
we have interpreted that language as creating a dichotomy between
recovery by the estate and recovery by the beneficiaries, so that
an estate cannot recover damages when there are statutory
beneficiaries.11 But we have never held that a beneficiary cannot
recover damages otherwise recoverable by the estate.
We held to the contrary in Kulawik v. ERA Jet Alaska.12
In that case we allowed two child statutory beneficiaries to
recover the entire amount of their deceased fathers probable
accumulations even though his will left them only half of his
estate.13 The estates representative asked us to abolish the
dichotomy between beneficiary and estate recovery so the
statutory beneficiaries could recover half of the probable
accumulations and the estate could recover the other half.14 We
rejected that request, stating that it contradicted the wrongful
death statutes requirement that recovery be exclusively for the
benefit of the decedents dependents.15 We then awarded the
remaining half of the decedents probable accumulations to the two
statutory beneficiaries.16
The borough argues that Kulawik is distinguishable from
the present case because the beneficiaries in Kulawik were
children.17 But the wrongful death statute does not distinguish
between the damages available to a decedents spouse, children
. . . or other dependents,18 and the borough cites no case that
supports treating them differently. The reasoning discussed in
Kulawik applies equally here, despite this factual difference.
We stated in Kulawik that the wrongful death act should be
construed to afford a similar remedy as common law tort actions.19
A statutory beneficiarys recovery is not limited to her actual
losses, but is limited only to the extent it would be at common
law.20 As we said of the decedent in Kulawik, if Alfred had
merely been disabled rather than killed, he would have been able
to recover as a matter of tort law all the future earnings which
he lost as a result of his injuries.21 In both cases the same
reasoning applies: the legislature did not intend to make it
cheaper to kill than to injure.22
We also stated in Kulawik that the wrongful death
statute reflected the legislatures policy decision that any
windfall should go to the beneficiary, not the tortfeasor.23 In
Kulawik the two beneficiaries received this windfall because they
recovered in the wrongful death action the full value of their
fathers probable accumulations, but would have received only half
of his accumulations had they inherited through his will.24
Isabel arguably received an equivalent windfall here because she
recovered in the wrongful death action more of Alfreds earnings
than she likely would have received had Alfred survived, in which
case she would have received support from him only during her
lifetime and not during the nineteen years he was expected to
outlive her. To deny recovery in such cases would give a
windfall to the tortfeasor: if the beneficiary or beneficiaries
did not recover the additional money, it would not be recoverable
at all and the tortfeasor would be saved from paying a
significant amount in damages.25 As we noted in Kulawik:
Under a model statute, one would expect to
see the additional loss suffered by a
decedents estate paid to the estate so that
the decedents creditors and heirs or devisees
may be compensated for what they have lost.
However, our statute is not a model act.
It explicitly directs that the recovery be
distributed to the statutory beneficiaries
where they exist.[26]
Because Kulawik controls here, we hold that the trial
court permissibly allowed Isabel to recover damages for Alfreds
future earnings.
B. Whether It Was Error To Permit Isabel To Recover for
Loss of Alfreds Future Earnings, Despite the Alleged
Lack of Evidence of Her Dependence on His Earnings
The borough argues that Isabel presented no evidence to
show she was dependent on Alfreds earnings and that the trial
court therefore erred by instructing the jury that it could award
his lost future earnings to Isabel as a beneficiary. The trial
court did not explicitly rule on this issue when the borough
raised it below.
The borough concedes on appeal that Isabels dependence
on Alfreds subsistence and non-market support was sufficient to
justify the jurys finding that she was an other dependent under
the wrongful death statute, but contends that it was not
sufficient to justify awarding her Alfreds lost future earnings.
The borough argues that Isabel was required to prove specifically
that she was dependent on those earnings at the time of Alfreds
death because a statutory beneficiarys recovery must be measured
by the loss to the beneficiary.
Kulawik renders this argument unsustainable. There we
held that damages recovered by a statutory beneficiary need not
be measured by the loss to that beneficiary.27 We rejected the
argument that statutory beneficiaries are entitled to only their
actual losses, noting that [n]o language in the statute . . . so
limits the recovery.28 We stated that [s]ignificantly, the
[wrongful death] act focuses not merely on the individual losses
to each beneficiary, but more generally on the entire injury
resulting from the death. 29 And we stated that limiting damages
only to what the statutory beneficiaries could prove they would
have inherited is contrary to the language of the act, which
limits damages only by the common law tort concept of proximate
cause, and requires that damages be fairly compensatory for the
injury resulting from the death, without specifying that the
injury must be suffered by a statutory dependent.30 We held that
the beneficiaries should be allowed to recover the entire value
of their fathers future estate even though they could only prove
that they would have inherited half of that estate.31
Kulawik controls. Once the jury found Isabel to be an
other dependent, she was not required to prove dependence on
Alfreds future earnings. The trial court did not err by allowing
the jury to award loss of Alfreds future earnings, despite the
alleged lack of evidence that Isabel depended on those earnings
at the time of Alfreds death.
C. Whether It Was Error To Instruct the Jury To Use
Alfreds Life Expectancy To Calculate Future Economic
Damages
The borough argues that [l]ogic and common sense
dictate that the beneficiarys life expectancy be used to
calculate future economic damages if the beneficiarys life
expectancy is shorter than the decedents would have been. This
argument rests largely on the boroughs related argument that
damages must be measured by the loss to the beneficiary.
As we discussed in Part IV.B above, wrongful death
damages are not limited to the beneficiarys loss. We therefore
hold that the trial court did not err in allowing the statutory
beneficiarys future economic damages to be measured by Alfreds
life expectancy.
D. Whether It Was Error Not To Require the Jury To
Determine Damages to the Estate Separately from Damages
to the Beneficiary
The borough argues that even if Isabels recovery was
permissible, the trial court erred by not instructing the jury to
calculate the estates damages separately from the beneficiarys
damages. The borough argues that without this division it is
impossible to determine how much money is available to pay the
estates creditors or how much money remains for the decedents
heirs.
The borough does not establish that any possible error
was harmful. The borough does not dispute the evidence that
Isabel was the only heir and that the estate had no creditors.
According to the boroughs argument, it is primarily the estates
creditors and other heirs who would be harmed by not calculating
the estates damages separately from the beneficiarys.32 If there
are no creditors or other heirs, there can be no harm. We
therefore decline to determine whether the trial court erred by
allowing the jury to calculate damages to the estate together
with the damages to the beneficiary.33
E. Whether It Was Error To Deny a Remittitur Based on
Isabels Maximum Possible Recovery
The borough argues that the trial court abused its
discretion by failing to grant a remittitur, which the borough
sought as an alternative to a new trial. We reverse a trial
courts denial of a remittitur only when left with a firm
conviction on the whole record that the trial judge made a
mistake in refusing to order a remittitur or grant a new trial
and where intervention on our part is necessary to prevent a
miscarriage of justice.34 Remittitur is appropriate when a jury
without acting under the type of passion or prejudice that would
warrant a new trial, nonetheless awards an amount that is
unreasonable given the evidence.35 Because the borough has not
convinced us that the amount was unreasonable in light of the
evidence, it was not error to deny a remittitur.
V. CONCLUSION
We therefore AFFIRM the trial courts denial of the
boroughs motion for a new trial or remittitur.
APPENDIX A
ORDER DENYING MOTION FOR NEW TRIAL OR REMITTITUR
The parties presented this case to a jury in August 2007,
resulting in a verdict in favor of Isabel Brower. She was
awarded both non-economic damages and past and future economic
damages based on the probable accumulations over the lifetime of
her son, the decedent, rather than being limited to future
economic damages that would occur during her own normal lifespan.
The North Slope Borough argues that verdict improperly included
the decedents probable future accumulations and that the damages
covered the decedents entire lifespan. Since the Courts rulings
implemented the legislative policy in the wrongful death act as
to recovery by a statutory beneficiary, the Boroughs motion for a
new trial or remittitur is denied.
Factual Background. The Court issued its Order Granting In
Part Defendants Motion to Limit Testimony of Plaintiffs Economic
Expert (Order) on June 27, 2007. The decision agreed with the
Boroughs argument that Ms. Browers economic expert Hugh Richards
report improperly combined into a lump sum the damages of the
estate and damages of Ms. Brower. The Court required that
Richards separately state damages suffered by the estate and
damages suffered by Ms. Brower if she is found to be an other
dependent of her son1 so that the jury could see clearly the
alternative damage amounts depending on its finding as to Isabel
Browers being a statutory beneficiary.
For reasons discussed at length in the Order and based on
the legislative policy expressed in Alaska Statutes 09.55.580,
the court rejected the Boroughs arguments about various
limitations on Ms. Browers potential recovery. The Order stated
that
The legislative policy that a dependent be eligible for
full pecuniary damages that an estate would have
recovered must be enforced. Therefore, the report and
expert testimony may calculate Ms. Browers pecuniary
damages, if she is found to be a dependent of her son,
based on the full life span of Alfred Brower. On the
other hand, Ms. Browers age in relation to her son is a
valid factor in calculating the remaining categories of
damages available to her if she is found to be
dependent.2
The Borough did not file a motion for reconsideration and the
case proceeded to trial.
Plaintiffs economic expert Hugh Richards offered testimony
that the jury should find that the Past Economic Loss of Isabel
Brower (loss of support and assistance and loss of past earnings
of Alfred Brower) is the sum of $75,100 for her loss of past
support and $4,200 for her loss of past net income from Alfred
Brower for a total of $79,300. He also presented figures showing
that the net present value of the future economic loss to Isabel
Brower, assuming Alfred Brower became employed with the North
Slope Borough, would be the sum of the value of his household
help ($279,300) and subsistence activities ($422,700) (a total of
$702,000 present value $565,400) as well as Alfred Browers
future earnings ($1,607,300 present value $877,700) for a total
present value for future economic damages of $1,443,100.3
On August 11, 2007, the jury returned its Special Verdict,
finding that the Borough was negligent and that the Boroughs
negligence was a legal cause of the death of Isabel Browers son
Alfred Brower. The jury also found that he made significant
contributions to supporting his mother for which she was actually
dependent at the time of her sons death and that these
contributions would have continued if the deceased had lived.4
The jury found that Alfred Brower was also negligent, but that
this negligence was not a legal cause of his death.5
The Special Verdict form included two sections depending on
whether Isabel Brower is a statutory beneficiary. If the answer
to the question had been No, the jury would have filled out
question 6 of the Special Verdict asking for the following
categories of damages to the Estate of Alfred Brower:
(a) Past Non-Economic Loss (pre-death pain and
suffering of Alfred Brower);
(b) Past Economic Loss;
(c) Future Economic Loss (reduced to present value).6
This question remained blank.
Based on its answer of Yes that Isabel Brower is a statutory
beneficiary of her son Alfred, the jury answered the categories
in Question 5 of the Special Verdict Form, with the following
results:
(a) Past Non-Economic Loss to Alfred Brower (pre-death
pain and suffering of Alfred Brower): $400,000
(b) Past Non-Economic Loss to Isabel Brower (including
loss of consortium, affection, and companionship
and pain and suffering): $250,000
(c) Past Economic Loss of Isabel Brower (loss of
support and assistance and loss of past earnings
of Alfred Brower): $62,250
(d) Future Non-Economic Loss of Isabel Brower (loss of
consortium, affection and companionship, pain and
suffering): $200,000
(e) Future Economic Loss of Isabel Brower (loss of
support and assistance and loss of future earnings
of Alfred Brower) (reduced to present value):
$844,115.
TOTAL: $1,756,3657
This amount was approximately $1 million less than the request of
plaintiffs counsel during closing argument, with the major
reductions occurring in subsections (d) and (e).8
As a result of post-trial briefing, the parties agreed that
Alaska Statutes 09.17.010(a) required that a cap of $8,000 times
54.54 years (the life expectancy of Alfred Brower) apply to all
non-economic damages. The calculation is $436,560.9 Therefore
the original total of non-economic damages is reduced to $436,560
for a new total of $1,280,675. Including the attorney fees and
costs and prejudgment interest, the Final Judgment was
$1,564,071.70, plus post judgment interest at 9.25%.10
Discussion. A new trial can be granted at the trial courts
discretion if required in the interests of justice.11 Alaska
Civil Rule 59(a) is modeled on the corresponding Federal Civil
Rule 59(a) which was intended to prevent the retrial of any issue
already properly decided, and to limit any new trial to those
issues which are incorrectly decided or not decided at all.12
Another tool provided to the trial court is remittitur, for
situations in which the trial was basically fair but the verdict
is excessive. If the judge, using independent judgment as to the
weight of the evidence, finds the verdict excessive, a lower
amount can be entered. To preserve as much as possible the
conclusion reached by the jury, the standard to be utilized by
the judge is the maximum possible recovery a reasonable jury
could have awarded.13 This decision is in the discretion of the
trial court.14 The Borough is not arguing that the trial was
generally unfair; instead, the motion contends the trial became
unfair when the Court enforced its pretrial ruling concerning the
potential damage claims that can be recovered by Isabel Brower as
a statutory beneficiary.
New Trial. The Borough first contends that the trial was
unfair because a recovery was allowed to both the estate and to
Ms. Brower as a statutory beneficiary, since Ms. Brower was
allowed to recover the probable accumulations of her son. This
argument was made by the Borough pretrial and rejected by the
Court.15 The Courts June 27, 2007 Order discussed the case of
Kulawik v. ERA Jet Alaska16 at length. For reasons set forth in
the Order, the Court holds that the Kulawik case represents an
acknowledgment by the Alaska Supreme Court of a policy judgment
by the Alaska Legislature that when at least one statutory
beneficiary is found to exist, the beneficiary must be able to
recover all pecuniary damages to an estate. Regardless of the
extent of the recovery, it is based on the rights of the
beneficiary, not the rights of the estate.
The Borough now contends that the later case of Gillispie v.
Beta Construction Co. limits the holding in Kulawik because the
Supreme Court held that the parents in that case could only
recover the pecuniary loss to the estate of their children as
personal representatives, unless they filed a separate cause of
action pursuant to Alaska Statutes 09.55.580(a) for their own
pain and suffering.17 But the parents in Gillispie were not
statutory beneficiaries of their children. The case has little
relevance to Ms. Browers case or to Kulawik. Moreover, the
Gillispie court reaffirmed Kulawik for situations when the
plaintiff is a statutory beneficiary by noting that Kulawik had
held that damages may also be measured by the additional loss
suffered by the decedents estate which the statutory
beneficiaries did not stand to inherit because of the provisions
of the decedents will.18
If Ms. Brower had not been found to be statutory beneficiary
of her son, she would still have been his sole heir under the
intestate succession law since he had no wife or children.19 She
would have inherited all of the pecuniary loss of his estate
which is the net accumulations over Alfred Browers lifetime.20
But this recovery is limited to the estates pecuniary loss and
would be subject to the claims of the creditors of the estate.
The jurys decision that she was a statutory beneficiary of
her son drastically changed this situation. First, the recovery
is personal to her and is not an estate asset subject to
creditors claims. She was allowed to recover her prospective
inheritance from her son,21 as well as the additional amount of
Alfred Browers probable accumulations over his lifetime as
allowed by the Supreme Court in the Kulawik case: [r]eview of our
wrongful death statute convinces us that the legislature intended
that statutory beneficiaries recover all of the deceaseds
probable accumulations.22 As discussed in this Courts Order,
state law also allows Isabel Brower to recover:
(2) loss of contributions for support;
(3) loss of assistance or services irrespective of age
or relationship of decedent to the beneficiary or
beneficiaries;
(4) loss of consortium;
(5) loss of prospective training and education;
(6) medical and funeral expenses.23
The jury was entitled to factor in Ms. Browers age and
statistical span of life in evaluating these additional
categories of damages.24
These same considerations answer the Boroughs argument that
any recovery must be measured by the lifetime of Isabel Brower,
not of her son Alfred Brower. As stated in Kulawik, the
statutory beneficiary can recover all of the probable
accumulations of the deceased.25
The Borough highlights the fact that there is a windfall to
Isabel Brower of the difference between the recovery of the
probable accumulations of her son during her life expectancy
compared to the actual recovery which included the probable
accumulations over the lifespan of her son. But if the recovery
were limited to her lifespan, then the Borough (as tortfeasor)
would have the windfall of only paying for the probable
accumulations of Alfred Brower over a period less than his
statistical lifespan because the statutory beneficiary happened
to be his mother rather than someone his age or younger.
Although other policy decisions could have been made, the
Legislature has made a reasonable decision that the windfall
should go to the beneficiary instead of the tortfeasor. The
earlier decision of this Court, the Courts instructions at trial
and the Special Verdict Form implement this legislative judgment.
If the Borough has an issue with the Legislatures policy
decision expressed in the wrongful death statute as interpreted
by the Alaska Supreme Court, the Borough must seek a legislative
solution.
Remittitur. The Borough contends that there should be a
remittitur to reduce the jurys award of $844,115 for Future
Economic Loss of Isabel Brower (loss of support and assistance
and loss of future earnings of Alfred Brower) (reduced to present
value). The Borough points out that the plaintiffs economic
expert identified a total of $701,995 for future subsistence
support and for future household support from Alfred Brower and
suggests that the award should be reduced to that amount. (The
Borough apparently overlooked the fact that the expert later
identified the present value of this category of damages as
$565,400. By the Boroughs logic, this portion of the judgment
would have to be reduced to this present value amount26).
For reasons already discussed, this portion of the Special
Verdict also required the jury to calculate the loss of future
earnings of Alfred Brower. The expert assigned a total value of
$1,607,300 for these future earnings, with a present value of
$877,700. The total present value for future household support,
future subsistence support and future earnings proposed by the
expert was $1,443,100.
The jury did not agree with these figures and reduced this
proposed award to $844,115. As stated by the Supreme Court in
City of Bethel v. Peters, a jury provides the insight of a
reasonable person in evaluating damage claims.27 The amount
selected by the jury for this category of damages was about
$600,000 less than evidence presented in the case could have
allowed and is well within the jurys discretion. As noted above,
the total verdict was about $1 million less than what the
plaintiffs expert and plaintiffs counsel presented to them. The
Boroughs argument that the verdict is somehow inflated is without
merit.
Conclusion. The Borough contends that the recovery in this
case violates the rule that there must be a choice in a wrongful
death case between a recovery by an estate and recovery by a
statutory beneficiary and that the verdict was excessive. But
the estate did not recover anything in this case. Instead, since
the jury found that Isabel Brower was a statutory beneficiary,
she recovered as her personal recovery as a statutory beneficiary
all the probable accumulations of Alfred Brower over his span of
life plus the additional recovery appropriate for a statutory
beneficiary. The verdict is well within a reasonable jurys
discretion. Since the Borough has failed in its burden of
showing a legal error in the pretrial ruling and the jurys
verdict, neither a new trial or a remittitur is appropriate in
this case.
IT IS THEREFORE ORDERED that the North Slope Boroughs Motion
for New Trial or Remittitur is DENIED.
Effective Date: November 29, 2007
ENTERED AT Barrow, Alaska, this 29 day of November 2007.
/s/
Michael I. Jeffery
Superior Court Judge
_______________________________
1 Kulawik v. ERA Jet Alaska, 820 P.2d 627, 635 (Alaska
1991).
2 The wrongful death statute, AS 09.55.580, states in
pertinent part:
(a) [W]hen the death of a person is caused
by the wrongful act or omission of another,
the personal representatives of the former
may maintain an action therefor against the
latter . . . . [T]he damages therein shall be
the damages the court or jury may consider
fair and just. The amount recovered, if any,
shall be exclusively for the benefit of the
decedents spouse and children . . . or other
dependents. When the decedent is survived by
no spouse or children or other dependents,
the amount recovered shall be administered as
other personal property of the decedent but
shall be limited to pecuniary loss. . . .
(b) The damages recoverable under this
section shall be limited to those which are
the natural and proximate consequence of the
negligent or wrongful act or omission of
another.
(c) In fixing the amount of damages to be
awarded under this section, the court or jury
shall consider all the facts and
circumstances and from them fix the award at
a sum which will fairly compensate for the
injury resulting from the death. In
determining the amount of the award, the
court or jury shall consider but is not
limited to the following:
(1) deprivation of the expectation of
pecuniary benefits to the beneficiary or
beneficiaries, without regard to age thereof,
that would have resulted from the continued
life of the deceased and without regard to
probable accumulations or what the deceased
may have saved during the lifetime of the
deceased;
(2) loss of contributions for support;
(3) loss of assistance or services
irrespective of age or relationship of
decedent to the beneficiary or beneficiaries;
(4) loss of consortium . . . .
3 The survival of claims statute, AS 09.55.570, states in
pertinent part:
All causes of action by one person against
another . . . survive to the personal
representatives of the former and against the
personal representatives of the latter . . .
. The personal representatives may maintain
an action thereon against the party against
whom the cause of action accrued, or, after
the partys death, against the personal
representatives of the party.
4 Isabel had previously called a vocational
rehabilitation expert who testified that Alfred would probably
have become a heavy truck driver.
5 Zaverl v. Hanley, 64 P.3d 809, 822 n.39 (Alaska 2003).
6 Alyeska Pipeline Serv. Co. v. Anderson, 629 P.2d 512,
528 (Alaska 1981) (quoting Sturm, Ruger & Co. v. Day, 594 P.2d
38, 48 (Alaska 1979), rehg granted, 615 P.2d 621 (Alaska 1980)).
7 Superior Court Judge Michael I. Jefferys order denying
the boroughs motion for a new trial or remittitur is attached as
Appendix A.
8 AS 09.55.580(a).
9 AS 09.55.570.
10 AS 09.55.580(a) (stating that money recovered under
statute shall be exclusively for the benefit of the decedents
spouse and children . . . or other dependents).
11 See, e.g., Gillispie v. Beta Constr. Co., 842 P.2d
1272, 1272 (Alaska 1992) (Alaskas wrongful death statute . . .
creates a dichotomy between actions in which the decedent left
dependents and actions in which the decedent did not.); Horsford
v. Estate of Horsford, 561 P.2d 722, 727 (Alaska 1977) (Our
Wrongful Death Act explicitly provides for only one instance,
namely, when there are no statutory beneficiaries, where the
damages recovered are to be administered as part of the decedents
estate.).
12 Kulawik v. ERA Jet Alaska, 820 P.2d 627, 635, 637-38
(Alaska 1991).
13 Id. at 636-38.
14 Id. at 635.
15 Id.
16 Id. at 638.
17 Id. at 628.
18 AS 09.55.580(a).
19 Kulawik, 820 P.2d at 637.
20 Id.
21 Id.
22 Id. at 637 n.19.
23 Id. at 638 n.21. The windfall in Kulawik was that
portion of the decedents probable accumulations the two children
would not have inherited under the terms of the decedents last
will. Id.
24 Id. at 636, 638 n.21.
25 In that event, the defendant in Kulawik would have
avoided paying $63,012 in damages found by the jury. Id. at 636.
The borough argues here that it should not have been required to
pay $278,715 of the damages found by the jury. This amount is
the difference between the total award for future economic loss
($844,115) and the value of Alfreds future non-market services
and subsistence support ($565,400).
26 Kulawik, 820 P.2d at 638 n.21 (internal citations
omitted).
27 Id. at 638.
28 Id. at 636.
29 Id. at 637.
30 Id.
31 Id. at 635, 637-38.
32 The borough also argues that because the damages were
not calculated separately, it is impossible to determine whether
the lost earnings damages were based on Isabels life expectancy
or on Alfreds life expectancy. But as we held above in Part
IV.C, it was not error for the trial court to base the lost
earnings damages on Alfreds life expectancy.
33 See Tommys Elbow Room, Inc. v. Kavorkian, 727 P.2d
1038, 1047 (Alaska 1986) (holding that omitted language in jury
instructions was harmless when [p]ractically speaking, the
omissions probably made little difference).
34 Alyeska Pipeline Serv. Co. v. Anderson, 629 P.2d 512,
528 (Alaska 1981) (quoting Sturm, Ruger & Co. v. Day, 594 P.2d
38, 48 (Alaska 1979), rehg granted, 615 P.2d 621 (Alaska 1980)).
35 City of Fairbanks v. Rice, 20 P.3d 1097, 1107 (Alaska
2000).
1 Order Granting In Part Defendants Motion to Limit
Testimony of Plaintiffs Economic Expert, June 27, 2007 at 12.
2 Id.
3 Media 2BAA-07-112, 9:05:12 AM 9:29:00 AM; 10:03:04
10:19:21 AM (Aug. 8, 2007).
4 Special Verdict Form, Aug. 11, 2007, at 1-3.
5 Id. at 6.
6 Special Verdict Form, Aug. 11, 2007, at 5.
7 Id. at 4-5.
8 The corresponding amounts requested by plaintiffs
counsel in closing argument were:
(a) $ 400,000
(b) $ 250,000
(c) $ 79,300
(d) $ 600,000
(e) $1,443,100
TOTAL: $2,772,400 Media 2BAA-07-115, 9:03:03 AM 9:08:50
AM (Aug. 10, 2007).
9 Defendants Partial Opposition to Plaintiffs Motion for
Attorneys Fees, Prejudgment Interest and Final Judgment, Aug. 25,
2007 at 1-2; Plaintiffs Reply to Defendants Partial Opposition
for Attorney Fees, Prejudgment Interest and Final Judgment, Aug.
29, 2007.
10 Final Judgment, Sept. 12, 2007.
11 Civil Rule 59(a); Kulawik v. ERA Jet Alaska, 820 P.2d
627, 639 (Alaska 1991).
12 City of Fairbanks v. Nesbett, 432 P.2d 607, 613 n.15
(Alaska 1967) (quoting Yates v. Dann, 11 F.R.D. 386, 392-93 (D.
Del. 1951)).
13 City of Fairbanks v. Rice, 20 P.3d 1097, 1107 (Alaska
2000) (quoting Exxon Corp. v. Alvey, 690 P.2d 733, 742 (Alaska
1984)).
14 Sturm, Ruger & Co. v. Day, 594 P.2d 38, 48 (Alaska
1979), modified on reh. on other grds, 615 P.2d 621 (Alaska 1980)
& 627 P.2d 204 (Alaska 1981).
15 Order Granting In Part Defendants Motion to Limit
Testimony of Plaintiffs Economic Expert, June 27, 2007 at 4-9.
16 820 P.2d 627 (Alaska 1991).
17 842 P.2d 1272, 1273-74 (Alaska 1992).
18 Id. at 1272 n.1.
19 AS 13.12.103(2).
20 Osborne v. Russell, 669 P.2d 550, 559-60 (Alaska 1983).
21 AS 09.55.580(b) & (c)(1); Kulawik, 820 P.2d at 633.
22 Kulawik, 820 P.2d at 636 (emphasis added).
23 AS 09.55.580(c); see Kulawik, 820 P.2d at 633 n.14,
633.
24 Tommys Elbow Room v. Kavorkian, 727 P.2d 1038, 1047
(Alaska 1986). See Order Granting In Part Defendants Motion to
Limit Testimony of Plaintiffs Economic Expert, June 27, 2007, at
9-11.
25 Kulawik, 820 P.2d at 636.
26 See AS 09.17.040(b).
27 97 P.3d 822, 829 (Alaska 2004).
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