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. North Slope Borough v. Brower (08/28/2009) sp-6406

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).

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