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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allstate Insurance Company v. Dooley (11/12/2010) sp-6524

Allstate Insurance Company v. Dooley (11/12/2010) sp-6524

        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 


ALLSTATE INSURANCE COMPANY                           ) 
and WAYNE WATSON,                                   )    Supreme Court No. S-13331 
                        Petitioners,                )    Superior Court No. 3AN-06-07849 CI 
        v.                                          )    O P I N I O N 
RON DOOLEY,                                         )   No. 6524 - November 12, 2010 
                        Respondent.                 ) 

                Petition     for  Review      from    the   Superior    Court    of   the 
                State     of   Alaska,    Third     Judicial    District,   Anchorage, 
                William F. Morse, Judge. 

                Appearances:         Peter   J.  Maassen,    Ingaldson,    Maassen      & 
                Fitzgerald,     P.C.,   Anchorage,     for   Petitioners.    Danée     L. 
                Pontious      and   Ray    R.  Brown,     Dillon    &   Findley,    P.C., 
                Anchorage, and Christian N. Bataille, Walther & Flanigan, 
                Anchorage, for Respondent. 

                Before:    Carpeneti, Chief Justice, Eastaugh, Fabe, Winfree, 
                and Christen, Justices. 

                CHRISTEN, Justice.
                WINFREE, Justice, concurring in part and dissenting in part.


                Allstate Insurance Company (Allstate) and Wayne Watson, an Allstate 

attorney, seek review of an order denying their motion for partial summary judgment. 

Allstate and Watson argue that an action in tort for spoliation of evidence may only be 

----------------------- Page 2-----------------------

maintained where evidence is permanently lost or destroyed, not when evidence is only 

concealed from the complaining party.  We hold that the tort of fraudulent concealment 

of   evidence,    not   spoliation,   is  the  appropriate    cause   of  action   when     evidence    is 

intentionally concealed until after entry of judgment and expiration of the period allowed 

by Alaska Civil Rule 60(b) for seeking relief from a final judgment. 


                On October 28, 2000, Ron Dooley was injured when he slipped and fell 

while working on an addition to William Paul's home in North Pole.  Dooley was on the 

second   floor,   carrying   a   piece   of   lumber,   when   he   slipped   on   ice   or   snow   that   had 

accumulated at the top of the stairway.  Dooley could not recall what caused him to fall, 

but he fell down the stairs and landed on the concrete floor of the lower level.  The stairs 
had no railings at the time.1 

                Paul was insured by Allstate Insurance Company. On November 10, 2000, 

Allstate sent independent insurance adjustor Larry Staiger to the accident scene.  Staiger 

took photographs of the addition and stairwell and spoke with Paul about the condition 

of the area at the time of the accident. Staiger later made large copies of the photographs, 

mounted them on letter-sized sheets of paper, and made separate notes describing each 

photograph. Staiger also applied "stick-on" arrows to the photographs. The annotations 

to the photographs contained information about the condition of the accident site gleaned 

from Staiger's conversation with Paul.            Most significantly, the notes suggest that Paul 

        1       The   wooden   stairway   had   been  constructed   recently.   Although   it   was 

apparently structurally sound, it had no railings and there was no carpet or other material 
covering the stairs. 

                                                   -2-                                               6524 

----------------------- Page 3-----------------------

admitted that the area of floor where Dooley slipped was covered by ice at the time of 
the accident.2 

                Dooley   sued   Paul,   alleging   Paul's   negligence   caused   the   accident   and 

seeking damages for his injuries.  Allstate attorney Wayne Watson defended Paul in the 

suit.   Watson produced Staiger's photographs to Dooley during the discovery phase of 

the case but he did not produce the annotations to the photographs or the stick-on arrows, 

under the mistaken belief that they were privileged.          During his deposition, Paul made 

statements that appear to be inconsistent with Staiger's notes.           Later, Watson      realized 

that the photograph annotations and arrows were not privileged and produced them.  He 

also agreed that Dooley's attorneys could re-depose Paul, at Allstate's expense. 

                Dooley sought permission to submit additional instructions on spoliation 

and "breach of duty of disclosure" shortly before trial.  The superior court gave Dooley 

a choice between moving for a continuance or receiving an immediate ruling on the 

request for a spoliation instruction.  Dooley chose a continuance.  The court ultimately 

sanctioned Watson, ordering him to pay Dooley $12,200 for the discovery violation, and 
the parties proceeded with trial preparation.3 

        2       Photograph seven shows ice on the floor at the top of the stairwell opening. 

An arrow on the photograph points to a location on the floor directly in front of the first 
step.   The note states, in part, "[t]he fall occurred at the arrow.         Some of the ice was 
removed by a hammer. The ice came from a few snow falls, prior to the roof cover being 
installed."   Photograph eight also shows the stairwell opening from the second floor, but 
it is taken from a different angle and it shows some batt insulation on the floor. An arrow 
on the photograph points to the same spot as the arrow in photograph seven.  This note 
states, in part, "Arrow is start of the fall.     Note the ice build up to the left of the batt 
insulation.   This was similar to the fall area prior to 'hammering' it." 

        3       The amount of the sanction was calculated to compensate Dooley for the 


                                                 -3-                                            6524

----------------------- Page 4-----------------------

                 The case proceeded to trial after the photograph annotations and stick-on 

arrows were produced and Paul was re-deposed. Paul's negligence had been established 

in a pre-trial ruling, but the jury allocated 60% of the  total fault to Paul and 40% to 

Dooley.    The jury found that Dooley's total damages were $350,000; its decision to 

allocate 40% of the fault to Dooley reduced the principal amount of the judgment entered 

in his favor by $140,000. 

                Dooley then brought this suit against Watson and Allstate. He claimed that 

their delayed production of material evidence caused him to incur unnecessary litigation 

expenses by prolonging the litigation and reducing the value of his claim.                 Dooley's 

initial complaint did not identify a specific cause of action, but it alleged that Watson's 

concealment of the photograph annotations "was intentional, in reckless disregard of the 
plaintiff's rights, fraudulent and a breach of AS 21.36.125 (a)(6) & (8)."4 

                During the discovery phase of this case, Dooley learned that Allstate claims 

adjuster Don Cook made an entry in his "claim diary" on January 16, 2001, after he 

interviewed   Paul   about   the   slip   and   fall   accident   (the   "Cook   note"). Watson   had 

produced a redacted version of the claim diary before the trial in Dooley v. Paul, but the 

pages documenting Cook's January 16, 2001 interview with Paul had been removed from 

        3       (...continued) 

full amount of the additional attorney's fees he incurred as a result of the late-produced 

        4       AS    21.36.125     is  Alaska's    Unfair    Claim    Settlement     Practices   Act. 

AS 21.36.125(a) states: "A person may not commit any of the following acts or practices: 
. . .   (6) fail to attempt in good faith to make prompt and equitable settlement of claims 
in which liability is reasonably clear; . . . (8) compel an insured or third-party claimant 
in a case in which liability is clear to litigate for recovery of an amount due under an 
insurance policy by offering an amount that does not have an objectively reasonable basis 
in law and fact and that has not been demonstrated in the insurer's file; . . . ." 

                                                  -4-                                           6524

----------------------- Page 5-----------------------

the claim diary entirely and had not been produced.                Dooley amended his complaint 

against Watson and Allstate when he learned about the existence of the Cook note.  The 

amended complaint makes three arguments for recovery of damages based on newly- 

discovered evidence:   (1) spoliation of evidence; (2) abuse of process; and (3) fraud and 


                Allstate    and   Watson     sought    partial  summary      judgment     on   Dooley's 

spoliation claim.  Their motion argued that the tort of spoliation of evidence is permitted 

in Alaska only where evidence is permanently destroyed, or intentionally concealed until 

it is naturally destroyed, before it can be seen or used by the complaining party.  Allstate 

and Watson argued that Dooley cannot maintain a spoliation claim regarding the Cook 

note because:   (1) the note was not destroyed or irretrievably lost, and (2) deprivation of 

access to the note did not prejudice Dooley's personal injury suit.                The superior court 

denied the summary judgment motion.  The court's order reasoned: 

                It   makes    no   sense   to  limit  spoliation    to  the  permanent 
                destruction      of   evidence,     thus   allowing     the   temporary 
                concealment of evidence to be outside the parameters of the 
                tort.   The essence of the spoliation claim is that the items or 
                information is destroyed as potential evidence, regardless of 
                whether it is destroyed for all purposes or simply concealed 
                long    enough     to  make    the  evidence     unavailable    when    it 
                matters, whether prior to trial or at trial.  The tort reflects the 
                obligation of a party not to interfere with the truth finding 
                function   of   litigation.   If   evidence   is   concealed,   but   not 
                destroyed, until after trial, the fact finder is no less deprived 
                of   the   evidence   than   if   the   evidence   had   been   destroyed 

                                                   -5-                                             6524

----------------------- Page 6-----------------------

                Allstate petitioned for review of the superior court's decision.  We granted 
the petition for review under Alaska Appellate Rule 402(b)(2).5 


                We review the denial of a motion for summary judgment de novo, and will 

reverse it if there are no material facts in dispute and the moving party was entitled to 
judgment as a matter of law.6       In making this determination, "all inferences of fact will 

be drawn in favor of the non-moving party."7 


                We   have   made   clear   the   importance   of   deciding   cases   on   the   merits 
whenever possible.8   We have also held that where an individual acts to intentionally 

prevent another person from pursuing his or her civil cause of action by destroying 
evidence, there must be a remedy.9  Intentional spoliation is   "a tort borne of necessity," 

available as a cause of action only in those limited circumstances when evidence is 

        5       Alaska Appellate Rule 402(b)(2) provides that a petition for review may be 

granted where an important question of law is at issue and "there is substantial ground 
for   difference   of   opinion,   and   an   immediate   review   of   the   order   or   decision   may 
materially advance the ultimate termination of the litigation." 

        6       See Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001) (citing United 

Airlines, Inc. v. Good Taste, Inc., 982 P.2d 1259, 1262 (Alaska 1999)). 

        7       Id. 

        8       See, e.g., Cook v. Rowland, 49 P.3d 262, 264 (Alaska 2002);  Wright v. 

Shorten, 964 P.2d 441, 443-44 (Alaska 1998). 

        9       Hazen     v.  Municipality     of  Anchorage,     718   P.2d   456    (Alaska    1986) 

(intentional interference with the probable expectancies of a potential plaintiff in a tort 
claim requires a remedy); see also Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 
492 (Alaska 1995). 

                                                  -6-                                           6524

----------------------- Page 7-----------------------

 destroyed and unavailable for trial and the damages caused by its destruction cannot be 
 concretely  determined.10        Where      evidence    is  intentionally   concealed     so  that  it  is 

 unavailable to a litigant pursuing a civil cause of action, our case law implies that there 
 must be a remedy.11      But where traditional discovery sanctions can sufficiently redress 

 the harm caused by the wrongful withholding of evidence, those remedies are exclusive.12 

 Only where such remedies are not available or are not sufficient is an independent cause 
 of action available.13 

                 We have recognized that fraud may be committed through the failure to 
 disclose   information   in   the   presence   of   an   affirmative   duty   to   do   so.14  Fraudulent 

 concealment of evidence is an outgrowth of the same principle and is the cause of action 

 most consistent with our existing case law and civil rules.                In our view, the tort of 

 fraudulent concealment of evidence, not spoliation, is the appropriate remedy when 

 evidence is concealed for so long that it is unavailable for trial and/or for a motion filed 

 under Civil Rule 60(b). 

        A.      The Tort Of Intentional Spoliation In Alaska 

                We have not expressly defined the  elements of the tort of spoliation in 

Alaska,   but   they   can   be   gleaned   from   our   case   law   and   they   illustrate   important 

         10       Sweet, 895 P.2d at 492. 

         11      See Hazen, 718 P.2d at 464. 

         12      We     include   burden-shifting,     continuation     of  trial  to  allow  additional 

 preparation time, and/or awards of fees and costs among traditional discovery sanctions. 

         13      See Sweet, 895 P.2d at 492-93. 

         14      Carter v. Hoblit, 755 P.2d 1084, 1086 (Alaska 1988);see also Ben Lomond, 

 Inc. v. Schwartz, 915 P.2d 632, 634 (Alaska 1996). 

                                                   -7-                                             6524

----------------------- Page 8-----------------------

similarities     and    differences      between     the    permanent      destruction      and   temporary 

concealment of evidence.          As discussed below, the first two elements gleaned from the 

case law militate in favor of affirming the trial court's ruling that intentional concealment 

satisfies the requirements for spoliation.            The third element illustrates why a different 

remedy is required when evidence is concealed but not destroyed. 

                 1.	     The      tort   of   spoliation     requires      a   showing     of    intentional 
                         interference with another party's civil cause of action. 

                 The tort of spoliation was recognized by our court more than twenty years 
ago in Hazen v. Municipality of Anchorage.15               Hazen was arrested after a conversation 

with an undercover police officer in which she allegedly agreed to engage in an act of 
prostitution.16  That conversation was recorded.17            At a hearing shortly after her arrest, the 

charges against Hazen were dropped.18  Hazen's attorneys requested that the recording of 

the   conversation   be   preserved   or   that   Hazen   be   given   a   copy   of   it   because   she   was 
contemplating a civil suit.19      Subsequently, Hazen did sue the Municipality of Anchorage 

and the officers who arrested her, alleging false arrest and malicious prosecution.20                  In her 

civil case, Hazen requested a copy of the audio recording of the conversation on which 

her   arrest   had   been   based,   but   the   recording   had   been   permanently   altered   under 

         15       718 P.2d 456 (Alaska 1986).

         16       Id. at 458.

         17       Id.

         18       Id. at 458-59. 

         19       Id. at 459. 

         20       Id. 

                                                      -8-	                                              6524

----------------------- Page 9-----------------------

circumstances that suggested intentional destruction.21   When she learned the tape had 

been altered, Hazen amended her complaint to add an independent claim for alteration or 
destruction of evidence.22 

                The superior court allowed Hazen to pursue a claim for intentional alteration 

or destruction of evidence by implying a cause of action under the Alaska Constitution 
for deliberate violations of due process.23         On appeal, we found a constitutional remedy 

unnecessary, instead holding that "Hazen has a common-law cause of action in tort for 
intentional interference with prospective civil action by spo[li]ation of evidence."24 

                Intentional action by one party to interfere with another party's ability to 
bring a civil cause of action is central to the tort of spoliation.25  We have consistently held 

that   there   must    be  a  remedy     in  those   rare  cases   where     evidence    is  intentionally 
destroyed.26  The intentional concealment of evidence shares a common essential attribute 

         21      The circumstances in Hazen's case were exceptional. The court's recording 

 of Hazen's dismissal hearing captured a comment from an unidentified voice at the 
 prosecutor's table that said: "[W]ait 'til you hear what is on the tape now."  Id. at 459. 

         22      Id. at 458-59. 

         23      Id. at 460. 

         24      Id. at 463. 

         25      See State v. Carpenter, 171 P.3d 41, 64 (Alaska 2007) (quoting Sweet v. 

 Sisters of Providence in Wash., 895 P.2d 484, 492 (Alaska 1995)) (to bring an action for 
 spoliation, plaintiff must show that the destruction of evidence occurred with the intent 
 to disrupt an underlying cause of action); Hibbits v. Sides, 34 P.3d 327, 330 (Alaska 
 2001) (tort of spoliation requires showing that third party acted with intent to harm 
 party's ability to pursue civil cause of action). 

         26      Hazen,   718   P.2d   at   464; see   also  Hibbits,   34   P.3d   at   329   (third-party 


                                                    -9-                                              6524

----------------------- Page 10-----------------------

with the tort of spoliation; both actions provide remedies for the purposeful interference 

with the ability of the injured party to pursue a civil claim. 

                 2.	     The   tort   of   spoliation   requires   a   viable   underlying cause of 

                 In Estate of Day v. Willis we clarified  that claims for intentional spoliation 

are limited to circumstances in which a valid underlying cause of action is prejudiced by 
the   destruction   of   evidence.27    As   with   Dooley's   case,  there   were   two   court   actions 

involved in Estate of Day.          The first proceeding was a wrongful death action filed by 

Day's     estate   against    the   State   of  Alaska     and   security    officers   from    Anchorage 
International Airport.28  The officers initially encountered Day when they investigated cars 

parked near the airport after hours.         The people in the area dispersed when the officers 

arrived; Day ran into some nearby woods. The security officers left after learning that one 

of the cars belonged to Day and that he was wanted on several criminal charges.  Shortly 

thereafter, the security officers saw Day drive out of the area at high speed and gave 

chase.    The chase culminated in Day's fatal car crash, and Day's estate brought a claim 

for wrongful death.       The superior court granted summary judgment to the defendants, 

ruling that the officers did not have a duty to take Day into protective custody prior to the 

        26       (...continued) 

 spoliation   must   be   recognized   as   a   cause   of   action   given   the   limited   availability   of 
 discovery sanctions as a remedy in this context); Nichols v. State Farm Fire & Cas. Co., 
 6 P.3d 300, 303 (Alaska 2000) (a separate tort cause of action will be available where 
 evidence has been intentionally spoliated, even against a party not included in the initial 
 law suit); Sweet, 895 P.2d at 492 (intentional spoliation, "a tort borne of necessity," is 
 recognized to provide a remedy in situations in which evidence has been intentionally 

         27       897 P.2d 78, 81 (Alaska 1995). 

         28      Id. at 79. 

                                                    -10-	                                             6524

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chase.29   We affirmed the trial court's dismissal of the wrongful death action, but Day's 

estate later learned of a witness to the chase whose description of events contradicted the 
police officers' account.30       Day's estate filed a second suit against the defendants, this 

time alleging that they intentionally failed to disclose the identity of the witness during 

the discovery phase of the wrongful death litigation. The superior court granted summary 

judgment to the defendants, dismissing the spoliation claim. We affirmed and explained, 

"[a]n action based on the tort of spoliation is meritless unless it can be shown that a 
party's underlying cause of action has been prejudiced by the spoliation."31  Day's estate 

failed to make out a valid claim for wrongful death because the defendants did not owe 

a duty to Day; it follows that the failure to disclose a witness to the chase could not have 

prejudiced the estate because the estate did not have a viable cause of action against the 


                 Allstate argues that an independent reason for dismissing Dooley's claim at 

the   summary   judgment   level   is   that   the   absence   of   the   Cook   note   did   not   prejudice 

Dooley's underlying negligence claim against Paul.  The superior court correctly rejected 
this as a basis for the summary judgment motion.32   Whether the Cook note would have 

made a difference in the Dooley v. Paul trial has not been determined.                   For purposes of 

the   decision   entered   today,   it   is   only   important   to   observe   that   Dooley's   claim   for 

          29      Id. 

          30      The officers stated that they slowed down and backed off from the chase 

 prior to the crash.   But the previously undisclosed witness reported that the officers did 
 not slow down prior to the crash.  Id. at 79-80. 

          31      Id. at 81. 

          32      The superior court opted not to make any conclusions of law or fact about 

 this argument.  We did not grant review on this question. 

                                                    -11-                                              6524

----------------------- Page 12-----------------------

concealment   of   the   Cook   note   alleges   that   a   viable   underlying   cause   of   action   was 

prejudiced by a defendant's intentional interference with necessary evidence. 

                 3.	     The   tort   of   spoliation   requires  that   evidence   be   destroyed   or 
                         concealed until it is naturally destroyed. 

                 Hazen v. Municipality of Anchorage concerned the allegation that necessary 
evidence was intentionally destroyed and irretrievably lost.33                   We have expanded the 

definition   of   "destroyed   evidence"   only   once,   and   only   to   explain   that   there   is   no 

functional difference between permanently destroying evidence and volitional actions that 
permit evidence to dissipate or disappear.34   In Hibbits v. Sides we held that there is "no 

difference between the intentional destruction or alteration of evidence and the intentional 
concealment of evidence until it is destroyed by natural causes."35               In either circumstance, 

the evidence is completely unavailable for use by one party as a result of another party's 

decision to interfere with his or her civil cause of action. 

                 We agree with the trial court that where one party merely conceals evidence 

until after the conclusion of trial and the expiration of other remedies available under the 

civil   rules,   the   evidence   is   "destroyed   as   potential   evidence"   in   the   sense   that   it   is 

unavailable for trial or to support a motion filed under Civil Rule 60(b).                     But we also 

agree with Allstate that once the previously concealed evidence becomes available, the 

situation is markedly different from cases in which evidence is completely destroyed and 

its   impact   on   the   underlying   proceedings   is   mere   speculation.       If   evidence   becomes 

available, our strong policy in favor of trying cases on their merits militates in favor of 

         33       718 P.2d 456 (Alaska 1986). 

         34       Hibbits v. Sides, 34 P.3d 327 (Alaska 2001). 

         35       Id. at 330. 

                                                     -12-	                                              6524

----------------------- Page 13-----------------------

allowing a fact finder to determine whether concealing the evidence caused a party to 
incur actual damages.36    Intentional spoliation is not the appropriate cause of action when 

evidence   is   concealed,   but   not   destroyed,   because   late-produced   evidence   -   even 

evidence produced after the entry of judgment - can still be presented to the fact finder 

for a ruling on the merits.    And trials on the merits are most consistent with the truth- 

seeking function of the court. 

        B.     Existing Remedies For Delayed Production Of Evidence 

               Allstate argues that Alaska Civil Rule 37 provides adequate sanctions for 

evidence that is produced late, but while litigation is still pending.        We agree.      Where 

evidence is produced late, but before a judgment is entered, Civil Rule 37 grants trial 
courts broad discretion to fashion remedies for discovery order violations.37        A court may 

consider the nature and severity of the violation, the prejudice to the opposing party, and 
any other factors it deems appropriate.38     Courts may order sanctions including payment 

of expenses incurred as a result of late-produced evidence, burden-shifting, or exclusion 
of pleadings, testimony, or other evidence.39   In Dooley's case, Watson was sanctioned 

for the late production of photograph annotations. The court required him to pay $12,200 

        36      In contrast, when destroyed evidence is permanently unavailable for trial, 

 the impact the missing evidence would have had on the outcome of the case, if any, is 
 wholly speculative.     State v. Carpenter, 171 P.3d 41, 66-67 (Alaska 2007).             For this 
 reason, we have explained that punitive damages are available in spoliation claims, even 
 where a plaintiff cannot prove compensatory damages, because the absence of evidence 
 can make it impossible to prove compensatory damages.  Id. 

        37      Sowinski v. Walker, 198 P.3d 1134, 1158 (Alaska 2008). 

        38      Id.; Alaska R. Civ. P. 37(b). 

        39      Alaska R. Civ. P. 37(b)(2). 

                                                -13-                                          6524

----------------------- Page 14-----------------------

to Dooley, Dooley was given the opportunity to re-depose Paul, and additional time was 

allowed to prepare for trial.  In short, the trial court's response was appropriately aimed 

at reinforcing the importance of abiding by the discovery rules, leveling the playing field, 

insuring that the case could be fairly tried on its merits, and remedying the financial 

consequences of concealment. 

                Allstate and Watson argue that Civil Rule 60(b)  is also the appropriate 

remedy for the late production of the Cook note, but their argument is unconvincing. 

Civil   Rule   60(b)   allows   for   relief   from  final   judgment   under   several   circumstances, 

including those in which evidence is newly-discovered and/or where there has been fraud 

or misconduct by an adverse party.  But Civil Rule 60(b) would likely provide no relief 

at all for Dooley. Motions under Civil Rule 60(b)(2) and (3) must be filed within one year 
of notice of the entry of judgment.40         A motion filed by Dooley under Civil Rule 60(b) 

would   be   time-barred   even   though   Dooley   cannot   be   accused   of   failing   to   respond 

promptly; the existence of the Cook note was not revealed to him until more than a year 
after entry of the judgment in Dooley v. Paul.41 

        C.	     Fraudulent Concealment Of Evidence Is The Appropriate Cause Of 
                Action When Evidence Is Withheld But Not Destroyed. 

                 Spoliation   offers   a   remedy   if   evidence   is   completely   inaccessible   and 

calculation   of   compensatory   damages   is   merely   speculative.           Dooley's   situation   is 

fundamentally different because the Cook note is available and a reasonable estimate of 

         40      "The motion shall be made within a reasonable time, and . . . not more than 

 one year after the date of notice of the judgment . . . ."  Alaska R. Civ. P. 60(b). 

         41      Final judgment in Dooley v. Paul was entered on November 11, 2005.                      It 

 appears   that   as   of   January   7,   2008,   when   the   superior   court   denied   Allstate's   first 
 summary judgment motion, the Cook note was still unknown. 

                                                    -14-	                                            6524

----------------------- Page 15-----------------------

damages caused by the delayed production of it, if any, can be undertaken by a fact finder. 

Moreover,   the   alleged   harm   in   this   situation   is   different   than   that   in   instances   of 

spoliation.     In spoliation cases a party causes the complete destruction of evidence and 

denies another party the right to have the evidence considered on its merits.  A party who 

intentionally withholds disclosable evidence for a prolonged period of time, in contrast, 

fraudulently delays another party's access to such evidence in violation of an existing duty 
to disclose.42 

                We have recognized that a cause of action for fraud can arise by silence or 
non-disclosure in the context of an existing fiduciary duty.43           In Carter v. Hoblit, we stated 

that a cause of action for fraud may be alleged in cases of "silence or non-disclosure when 

a fiduciary relationship exists between parties" or, in the absence of such a duty, if the 

party   makes   statements   that   are   "half   truths,   or   true   remarks   which   omit   material 
information."44        Numerous       other    jurisdictions    specifically    recognize     "fraudulent 

concealment" as a type of fraud applicable when information is intentionally withheld.45 

         42      Alaska Civil Rule 26(a) sets out the affirmative duty of litigants to disclose 

 all relevant evidence in a civil action without awaiting a discovery request. 

         43       Carter v. Hoblit, 755 P.2d 1084, 1086 (Alaska 1988); see also Henash v. 

 Ipalook, 985 P.2d 442 (Alaska 1999); Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 634 
 (Alaska 1996). 

         44       Carter, 755 P.2d at 1086; see also Ben Lomond, Inc., 915 P.2d at 634 

 (holding "a fiduciary duty allows a finding of fraud even where the fraud is committed 
 by silence or non-disclosure, while the absence of a fiduciary duty precludes a finding 
 of fraud unless the offender makes remarks which are either half true or which omit 
 material information."). 

         45      Fraudulent concealment is recognized as a cause of action in numerous 

 jurisdictions across the United States.         See, e.g., Taylor v. Am. Chemistry Council, 576 

                                                    -15-                                             6524

----------------------- Page 16-----------------------

This   cause   of   action   is   a   better   fit   for   the   harm   Dooley   alleges,   and   we   recognize 

fraudulent concealment of evidence as an independent cause of action available in Alaska 

in limited circumstances. 

                 The elements we adopt for the tort of fraudulent concealment of evidence 

are:   (1)   the   defendant   concealed   evidence   material   to   plaintiff's   cause   of   action;   (2) 

plaintiff's underlying cause of action was viable; (3) the evidence could not reasonably 

have been procured from another source; (4) the evidence was withheld with the intent 

to disrupt or prevent litigation; (5) the withholding caused damage to the plaintiff from 

having to rely on an incomplete evidentiary record; and, (6) the withheld evidence was 

discovered at a time when the plaintiff lacked another available remedy. We note that the 

elements   we   adopt   provide   for   a   cause   of   action   with   a   much   narrower   scope   and 

application      than   the   broader    tort  of  fraudulent     concealment      recognized      in  other 

jurisdictions.     We now highlight the most  important distinctions between the cause of 

action we adopt here and the similar cause of action as it has been adopted in other 

         45      (...continued) 

 F.3d 16 (1st Cir. 2009); Lerner v. Fleet Bank, N.A., 459 F.3d 273, 291-92 (2d Cir. 2006); 
 Caperton v. A.T. Massey Coal Co., Inc., 690 S.E.2d 322 (W. Va. 2009); Picher v. Roman 
 Catholic Bishop of Portland, 974 A.2d 286 (Me. 2009).                    Dooley draws our attention 
 specifically to the state of New Jersey where fraudulent concealment is both broadly 
 available as a cause of action and specifically applicable to situations in which evidence 
 has been concealed.   The elements of fraudulent concealment in New Jersey, as applied 
 to concealed evidence are: (1) the defendant had a "legal obligation to disclose evidence 
 in connection with existing or pending litigation," (2) the concealed evidence "was 
 material to the litigation," (3) the evidence could not "reasonably" have been procured 
 from another source, (4) the defendant withheld or concealed the evidence "with purpose 
 to disrupt the litigation," and (5) "plaintiff was damaged in the underlying action by 
 having   to   rely   on   an   evidential   record  that   did   not   contain   the   evidence   defendant 
 concealed."  Rosenblit v. Zimmerman, 766 A.2d 749, 758 (N.J. 2001). 

                                                    -16-                                              6524

----------------------- Page 17-----------------------

jurisdictions in order to avoid confusion about the scope of the remedy we recognize in 

this decision. 

                 1.	     In Alaska, a claim for fraudulent concealment of evidence is only 
                         available when no other remedy is available. 

                 In contrast to claims for fraudulent concealment in other jurisdictions, a 

cause of action for fraudulent concealment of evidence may be maintained in Alaska only 
when a plaintiff lacks another sufficient remedy.46   This is consistent with our view that 

most discovery violations can be appropriately addressed with our existing civil rules.47 

We intend the tort of fraudulent concealment of evidence to be available only when 

evidence is concealed until after judgment is entered and  the time for seeking relief from 
judgment under Civil Rule 60(b) has expired.48 

         46       See,   e.g.,  Rosenblit,   766   A.2d   at   758   (the   same   plaintiff   may   bring   an 

 independent tort suit for fraudulent concealment and also recover through discovery 

         47       Civil Rules 37 and 60(b) will often provide the exclusive remedies for late- 

 produced discovery in Alaska.   But we note that existing remedies for the concealment 
 of evidence are not limited to those provided in the civil rules.                 For example, when 
 concealed evidence   prevents a litigant from discovering a cause of action, our existing 
 case law allows for the tolling of the statute of limitations under the "discovery rule." See 
  Williams v. Williams, 129 P.3d 428, 432 (Alaska 2006); Law Offices of Steven D. Smith, 
 P.C. v. Borg-Warner Sec. Corp., 993 P.2d 436, 446 (Alaska 1999). 

         48       The   dissent   argues   that   a   "case   within   a   case"   trial   may   not   provide   a 

 satisfactory remedy for evidence that was concealed because various factors may prevent 
 the aggrieved party from recreating the original trial for a fact finder.                We agree this 
 approach entails the risks associated with the passage of time: memories fade, witnesses 
 die, and other evidence may be lost or destroyed. These risks are a disadvantage of the 
 "case-within-a-case" approach, but we believe the advantages of the approach outweigh 
 its drawbacks. Most notably, today's approach avoids the wholly speculative assessment 
 of how destroyed evidence might have affected the original trial.  The availability of the 

                                                    -17-	                                            6524

----------------------- Page 18-----------------------

                2.	     Fraudulent concealment of evidence is not limited to pending 

                In New Jersey, a cause of action for fraudulent concealment of evidence may 
be maintained only "in connection with existing or pending litigation."49              If adopted, this 

element would bar litigants in Dooley's situation from obtaining relief because final 

judgment   has   been   entered   in   Dooley's   underlying   cause   of   action   and   the   time   for 

seeking relief from judgment has expired.           We believe the existing civil rules in Alaska 

provide adequate remedies for situations  in which evidence becomes available while 

litigation is still pending or before the expiration of the time for seeking relief from 

judgment under Civil Rule 60(b).           Thus, we do not recognize an independent cause of 

action for late-produced evidence in circumstances when Civil Rules 37 and 60(b) provide 

redress; a claim for fraudulent concealment of evidence in Alaska may not be filed in 

conjunction with pending litigation. 

                3.	     Fraudulent   concealment   of   evidence   is   not   a   general   cause   of 
                        action available when information is intentionally withheld. 

        48      (...continued) 

 no-longer-concealed evidence substantially reduces the difficulty of determining how the 
 evidence would have affected the original trial.  In contrast, the remedy proposed by the 
 dissent   would   allow   an   independent   claim  based   upon   newly   discovered   evidence 
 without regard to whether it would have made a difference to the  original action.                   We 
 already engage in merit-based "case-within-a-case" trials in other contexts.                  See e.g., 
 Shaw v. State, Dep't of Admin., 861 P.2d 566, 573 (Alaska 1993) ("In order to prove he 
 would have been found innocent at trial on the original charges, Shaw, as most civil 
 malpractice plaintiffs, will have to present a 'trial within a trial.' ").             Extending the 
 process to instances of fraudulent concealment of evidence is similarly appropriate. 

         49      Rosenblit, 766 A.2d at 758. 

                                                   -18-	                                           6524

----------------------- Page 19-----------------------

                Some jurisdictions permit claims for fraudulent concealment in multiple 
circumstances involving intentionally withheld information.50  For example, as fraudulent 

concealment is defined in New Jersey, the elements have encompassed claims against a 
seller   in   a   real   estate   transaction,51  against   a   car   dealership   regarding   the   sale   of   an 

automobile,52 and against a tenant who misrepresented the status of his insurance.53                  In 

Alaska, the tort of fraud has not expanded in the same manner;54 we do not intend to so 

expand this cause of action now.  Instead, we affirm our previous decisions recognizing 

that a cause of action for fraud may exist when information is withheld in spite of a duty 

to disclose it.   Our existing discovery rules impose a duty to disclose relevant evidence; 

a   violation   of   this   duty   is   the   foundation   for   the   tort   of   fraudulent   concealment   of 



         50      See, e.g., Taylor v. Am. Chemistry Council, 576 F.3d 16 (1st Cir. 2009) 

 2009); Lerner v. Fleet Bank, N.A., 459 F.3d 273, 291-92 (2d Cir. 2006); Caperton v. A.T. 
 Massey Coal Co., 690 S.E.2d 322, 2009 (W. Va. 2009); Picher v. Roman Catholic 
 Bishop of Portland, 974 A.2d 286 (Me. 2009). 

         51      State, Dep't of Envir. Protection v. Ventron Corp., 468 A.2d 150 (N.J. 


         52      Ghaleb v. King Motors, Inc., 2008 WL 4763313                 (N.J. Super. App. Div. 


         53      Boston Market Corp. v. Hack, 2007 WL 2349989 (N.J. Super. App. Div. 


         54      Cf.   Ben   Lomond,   Inc.   v.   Schwartz,   915   P.2d   632,   634   (Alaska   1996) 

 (holding that withholding information may only constitute fraud in the presence of a 
 fiduciary relationship); Carter v. Hoblit, 755 P.2d 1084, 1086 (Alaska 1988) (holding 
 that   fraud   can   be   established   by   nondisclosure   when   a   fiduciary   relationship   exists 
 between the parties). 

                                                  -19-                                            6524

----------------------- Page 20-----------------------

             We VACATE the superior court's order denying Allstate's motion for partial 

summary judgment and REMAND for further proceedings consistent with this decision. 

                                          -20-                                    6524

----------------------- Page 21-----------------------

WINFREE, Justice, concurring in part and dissenting in part. 

                I reluctantly agree with the court'srecognition of the fraudulent concealment 

of evidence tort.  Alaska already stands in the very small minority of states recognizing 

intentional spoliation of evidence as a tort, and the policy justifications for the new tort 

do   not   seem   to   clearly   outweigh   the   policy   concerns   against   it. Nonetheless,   I   am 

persuaded that if Alaska is to maintain its recognition of the intentional spoliation tort, it 

would be inconsistent to deny recognition of the fraudulent concealment tort. But I do not 

see how the remedies can substantively differbetween this new tort and the spoliation tort 
recognized in Hazen v. Municipality of Anchorage.1 

                The 1986Hazen decision included a sua sponte recognition of the "new tort" 
of "intentional interference with prospective civil action by spo[li]ation of evidence."2 

Although  Hazen   involved   both   first-party   and   third-party   spoliation,3        the   decision's 

primary basis was Smith v. Superior Court, where the California Court of Appeal allowed 

an accident victim to sue a car dealer who had destroyed or lost important vehicle parts 
necessary for the victim's products liability lawsuit.4          But the California Supreme Court 

subsequently refused to recognize the tort for either first-party spoliation cases5 or third­ 

         1       718 P.2d 456 (Alaska 1986). 

         2       Id.    at  463   (recognizing     "new    tort"  of   intentional    interference    with 

 prospective civil action by spoliation of evidence although issue was not raised by the 
 parties and "was neither briefed nor discussed at oral argument"). 

         3       Hibbits v. Sides, 34 P.3d 327, 329 (Alaska 2001), clarified that Hazen 

 involved both first-party and third-party spoliation claims. 

         4       Hazen, 718 P.2d at 463-64 (discussing Smith v. Superior Court, 198 Cal. 

 Rptr. 829, 831-32, 836-37 (Cal. App. 1984)). 

         5       Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511, 514-21 (Cal. 


                                                   -21-                                             6524

----------------------- Page 22-----------------------

party spoliation cases.6     And in the nearly 25 years after Hazen the "new tort" has gained 

little traction in other jurisdictions.7 

                 Hazen is hardly a solid foundation for the creation of yet another tort.  But 

Hazen is the law of Alaska, there has been no request to reconsider and overrule it, and 

there is no persuasive distinction between Hazen's spoliation tort and the fraudulent 

        5       (...continued) 

 1998).     In Cedars-Sinai the court acknowledged the policy concerns arising from the 
 intentional destruction of evidence.         Id. at 515.    But weighing against recognizing the 
 new   tort   were   (1)   "the   dangers   of   creating   new   torts   to   remedy   litigation-related 
 misconduct";   (2)   the   extensive   and   effective   nontort   remedies   available   to   address 
 spoliation; (3) the elusive certainty of harm in spoliation cases impeding the jury's ability 
 to evaluate the evidence and accurately compensate a party; and (4) the costs associated 
 with creating a spoliation tort remedy.         Id. at 515-21.     Expressly "part[ing] company" 
 with Smith v. Superior Court, the court declined to recognize a tort "for the intentional 
 destruction or suppression of evidence by a party to the underlying litigation." Id. at 513, 
 519 n.3, 521. 

                 The nontort remedies noted by the California Supreme Court are available 
 in Alaska. See Sweet v. Sisters of Providence in Wash., 895 P.2d 484, 492 (Alaska 1995) 
 (finding on the facts of that case no need to recognize tort of negligent destruction of 
 healthcare records in light of available remedy of burden-shifting); Alaska R. Civ. P.  37 
 (allowing discovery abuse sanctions); Alaska R. Prof. Conduct 3.4(a)-(b) (establishing 
 disciplinary   rule   prohibiting   unlawful   destruction   or   concealment   of   evidence);   AS 
 11.56.610  (establishing   class   "C"   felony   for   "tampering   with   physical   evidence," 
 including destroying, mutilating, altering, concealing, or removing that evidence "in an 
 official proceeding"). 

         6       Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223, 225 (Cal. 1999) 

 (expanding Cedars-Sinai to spoliation caused by non-party). 

         7       See Timber Tech Eng'd Bldg. Prods. v. The Home Ins. Co., 55 P.3d 952, 

 954   (Nev.   2002)   ("[T]he   vast   majority   of   jurisdictions   have   never   recognized   tort 
 remedies for spoliation of evidence."). 

                                                   -22-                                            6524

----------------------- Page 23-----------------------

conduct tort recognized today. I therefore reluctantly concur with the court's recognition 

of this new tort. 

                Paradoxically, although I only reluctantly agree with the creation of the new 

fraudulent concealment tort, I strongly disagree with the court's limitation on its remedy 

through an unpersuasive distinction between the two torts - the tortious conduct is the 

same, the effect of the tortious conduct is the same, and the remedy for the tortious 

conduct should be the same. 

                It has been suggested, but never squarely held, that proof of compensatory 

damages might not be a necessary element of the spoliation tort and that punitive damages 
might be awardable even in the absence of compensatory damages.8  For the new tort the 

court concludes that unlike the complete destruction of evidence and its unavailability for 

trial,   "mere   concealment"   of   evidence   beyond   the   time   the   victimized   party   can   do 

anything about it in the underlying litigation does not really create uncertainty whether 

the absence of the evidence caused the victim any actual harm - the victim simply must 

go   to   the   expense   of   a   second   trial   and   prove   that   the   first   trial   would   have   had   a 

quantifiably different conclusion.  I disagree. 

         8       Hazen,   718   P.2d   at   464   n.10   (noting   that   because   Hazen   might   prove 

 compensatory damages in the form of extra expense in litigating underlying claims 
 without the destroyed evidence on remand, there was no need to address the issue of 
 punitive damages in the absence of compensatory damages); State v. Carpenter, 171 P.3d 
 41,    66-67     (Alaska     2001)     (affirming     punitive    damages      award     accompanying 
 compensatory damages award for destroyed evidence (but not for underlying tort claim), 
 and notingHazen's contemplation that punitive damagesmight be awardable even in the 
 absence of a compensatory damages award and that "punitive damages may sometimes 
 be the only appropriate damages recoverable for spoliation, especially when the jury 
 finds no liability for the underlying claims" (emphasis in original)). 

                                                    -23-                                             6524

----------------------- Page 24-----------------------

                 First,   if   a   victim   can   prove   the   five   non-damages   elements   of   the   new 
fraudulent concealment tort established by the court,9 the victim already has established 

both (1) the right to receive the compensatory litigation-costs damages noted in Hazen10 

and (2) the obvious basis for "retribution and deterrence" noted in State v. Carpenter.11 

The court's narrow focus on whether the victim can prove that the underlying trial would 

have been quantifiably different ignores the harm unquestionably caused by the fraudulent 

concealment of evidence - the added expense to the victim and the affront to our system 

of justice from intentional disruption of the underlying litigation. 

                 Second,   the   court's   assurance   that a   second   trial   with   the   newly   found 

evidence will provide the victim with a "trial on the merits" of the original claim is not 

adequate.      In this case the facts are seductive because of the close proximity in time 

between the first trial and the discovery of the concealed evidence, making it seem logical 

that   an   adequate   remedy   would   be   a   case-within-a-case   trial   giving   the   victim   an 

opportunity to prove the original trial would have been different had the evidence been 

available.   But extend the timeline and that logic loses luster.  What if critical concealed 

evidence is discovered two, five, or ten years later, but by that time previously existing 

evidence is no longer available to put on the case-within-a-case trial?                    Witnesses die; 

memories fade; documents are lost or destroyed; and other physical evidence perishes. 

         9        The five non-damages elements adopted for the fraudulent concealment of 

 evidence tort are:   (1) the defendant concealed evidence material to the plaintiff's cause 
 of action; (2) the plaintiff's underlying cause of action was viable; (3) the evidence could 
 not reasonably have been procured from another source; (4) the evidence was withheld 
 with   the   intent   to   disrupt   or   prevent  litigation;   and   (5)   the   withheld   evidence   was 
 discovered at a time when the plaintiff lacked another available remedy. 

         10       718 P.2d at 464 n.10. 

         11       171 P.3d at 67. 

                                                     -24-                                              6524

----------------------- Page 25-----------------------

The victim might have the critical, but previously concealed, evidence but might no 

longer have the ability to put on the case-within-a-case trial because other evidence no 

longer exists. 

              I find it fundamentally unfair, and inconsistent with the Hazen line of cases, 

that the court would place such an extraordinary burden of proof and persuasion on the 

victim in these circumstances.   If the court is going to create the new tort, it should not 

create a remedial framework different from Hazen. 

              For the foregoing reasons, I concur in part and dissent in part. 

                                            -25-                                      6524
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