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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kingery v. Barrett (3/4/2011) sp-6543

Kingery v. Barrett (3/4/2011) sp-6543, 249 P3d 275

        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 

LLOYD KINGERY,                                  ) 
                                                )       Supreme Court No. S-13246 
                Appellant,                      ) 
                                                )       Superior Court No. 3PA-03-01392 CI 
        v.                                      ) 
                                                )      O P I N I O N 
ROSCOE BARRETT,                                 ) 
                                                )      No. 6543 - March 4, 2011 
                Appellee.                       ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Palmer, Beverly W. Cutler, Judge. 

                Appearances:   Richard L. Harren, Law Offices of Richard L. 
                Harren,   P.C.,   Wasilla,   for   Appellant.  Barry   J.   Kell,   Call, 
                Hanson & Kell, P.C., Anchorage, for Appellee. 

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

                STOWERS, Justice. 

I.      INTRODUCTION 

                Roscoe   Barrett's   vehicle   collided   with   Lloyd   Kingery's   vehicle   near 

Palmer.    Shortly thereafter, another vehicle collided with Kingery's vehicle.              Kingery 

sued Barrett and the other driver to recover money damages for his injuries.                   Barrett 

admitted that he drove negligently but argued that his negligence was not the cause of 

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

Kingery's injuries.   Kingery settled with the other driver; his suit against Barrett went to 

trial.   The jury returned a defense verdict, finding that Barrett was not the cause of any 

injuries to Kingery.       The superior court denied Kingery's motion for a new trial, and 

Kingery appeals.   Because the superior acted within its broad discretion in denying the 

motion for a new trial, we affirm. 

II.     FACTS AND PROCEEDINGS 

                In   2001   Lloyd   Kingery   worked   the   night   shift   for   a   road   construction 

company removing rock from Hatcher's Pass.  On the morning of October 12, 2001, he 

was driving home from work on the Old Glenn Highway near Palmer when he was 

involved in a traffic accident with Roscoe Barrett.           Barrett had been driving on Maud 

Road.     As he approached the intersection with the Old Glenn Highway, he was unable 

to stop due to icy road conditions and collided with Kingery. 

                After the impact (the first collision) Barrett moved his vehicle to the side 

of the road and walked over to talk to Kingery.  Sometime between one and five minutes 

later, as the two men were talking and exchanging information near Kingery's pickup 

truck, a third vehicle operated by Jeremy Miller approached.              Barrett warned Kingery, 

who could not see from where he was standing that a vehicle was approaching.  Kingery 

jumped back through the open passenger door of his truck just before the oncoming car 

struck Kingery's truck (the second collision). 

                The second collision spun Kingery's truck into the ditch on the side of the 

road. Kingery's truck was towed from the scene a few hours later, and Kingery got a ride 

home.  Kingery slept during the day on October 12 and went to work that night as usual. 

His employer informed him that night that the road construction job he had been working 

was ending for the winter, as is customary in Alaska. Kingery's layoff had nothing to do 

with the collisions earlier in the day. 

                                                  -2-                                            6543
 

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

               Kingery went to a chiropractor, Dr. Bobby Lucas, several times shortly after 

the collisions complaining of neck and back pain.          Dr. Lucas had treated Kingery for 

neck, shoulder, and back pain in the two years prior to the collisions as well.          Kingery 

did not work again until the following summer. 

               During the summer of 2002, while operating a bulldozer at a construction 

site, Kingery injured his back again.  Kingery continued to visit Dr. Lucas in 2002.   He 

also visited Dr. David Werner, a physician, for treatment following the 2002 injury, 

complaining of back pain.        Dr. Werner referred Kingery to Marian Lear, a physical 

therapist, for treatment as well. 

               In October 2003 Kingery and his wife filed a complaint in the superior court 

alleging that Barrett and Miller were negligent in the 2001 collisions.  Miller and Barrett 

answered the complaint.       Miller denied the allegations of negligence, causation, and 

damages   and   offered   several   affirmative  defenses.    Barrett   admitted   that   he   drove 

negligently, but denied that his negligence was "the real and/or proximate cause of the 

damages"      the  Kingerys    claimed.   Barrett  also   raised  several  affirmative   defenses, 

including comparative negligence. 

               The Kingerys settled with Miller before the case went to trial.  On the first 

day of trial, September 4, 2007, Kingery's wife dismissed her claims against Barrett, 

leaving Kingery as the sole plaintiff and Barrett as the sole defendant. 

               At trial Kingery testified to the circumstances of both collisions and how 

he felt afterwards.    At trial he agreed that he did not "feel like [he]'d been injured" 

following the first collision, but that following the second collision he could not feel 

anything:   "All I felt was just needles and pins when I did get hit, all the way through my 

back bone."   He nonetheless testified that he felt "good" later that day and that he "was 

getting sore but it wasn't bothering [him]."  According to Kingery, he "just kept getting 

sorer and sorer and sorer" over the four or five days following the collisions. 

                                                -3-                                          6543
 

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

                Dr. Lucas testified that he treated Kingery for neck, shoulder, and back pain 

several   times   following   the   2001   collisions,   although   Kingery   did   not   mention   the 

collisions until his second visit.   Dr. Lucas testified that he x-rayed Kingery's back and 

discovered moderate to severe degenerative disc disease ten days after the collisions, but 

that the disease would have developed over a period of time and would not have been 

caused by the collisions.   Dr. Lucas also testified that he could not say whether the pain 

Kingery experienced following the 2002 bulldozer injury was caused by the collisions. 

                Dr. Werner agreed that he did not "feel comfortable expressing an opinion 

about whether or not Mr. Kingery's symptoms . . . were the result of a car accident that 

happened in October of 2001."  Physical therapist Lear agreed that she did not "have the 

ability to determine a cause" of Kingery's injuries. 

                The     2005     deposition     testimony     of   independent      medical     examiner 

Dr. John M. Ballard was presented to the jury by video as well.  After Kingery had filed 

suit in this case, Dr. Ballard reviewed Kingery's medical and chiropractic records, took 

a   medical    history   from    Kingery,    and   performed      a  physical   examination      on   him. 

Dr. Ballard testified that he believed Kingery "had a cervical and a lumbar strain . . . as 

a result of [the 2001 collisions]."  He testified that the soft tissue injury Kingery suffered 

gave Kingery "a fair amount of need to . . . see a chiropractor."  He also testified that he 

could not determine which of the two collisions "was worse." 

                Prior to trial, both parties agreed that no reference should be made to the 

fact   that   Barrett   was   covered   by   insurance.   At   trial   Kingery   nonetheless   sought   to 

introduce portions of the claim file prepared by Allstate Insurance Company, Barrett's 

insurer, regarding the collisions. After suggesting he might introduce the Allstate claims 

records by calling Tracy Mears, an Allstate employee, as a witness, Kingery elected 

instead to file what he labeled an "Offer of Proof."  The filing was not actually an offer 

of proof, as the superior court noted, but rather a "paragraph by paragraph argument as 

                                                   -4-                                              6543
 

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

to   why   the   court   should   admit   [the   claim   file]."  The   court   denied   the   request   and 

excluded   the   claim   file   because   it   contained   too   much   information   about   Barrett's 

insurance and would therefore be more prejudicial than probative. 

                 At    the  conclusion      of  the   trial  both  parties    submitted     proposed     jury 

instructions. Neither party objected to the court's final jury instructions, which included 

a   special   verdict   form.    The   superior  court   read   to   the   jury   instruction   no.   8   -   a 

definition of negligence - that erroneously asked the jury to determine whether Barrett 

had acted negligently, something he had admitted.  The court immediately informed the 

jury that instruction no. 8 was incorrect, and that the jury members would receive a 

corrected      copy    the  next   morning      at  the  beginning     of   deliberation.     The    printed 

                                                                                                      1 
instructions provided to the jury initially contained the erroneous instruction no. 8.                  The 

special verdict form correctly indicated that Barrett was negligent; the first question the 

jury actually had to consider and answer was whether Barrett's admitted negligence was 

a legal cause of Kingery's harm. 

                                                                               2 
                   The   jury   returned   a   verdict   the   next   morning,     finding   that   Barrett's 

negligence was not a legal cause of any of Kingery's injuries.  Kingery moved for a new 

trial in April 2008.   The court denied that motion. 

         1 
                 The original version of instruction no. 8 included the statement:                  "In this 
case, you must decide whether defendant used reasonable care under the circumstances, 
whether plaintiff used reasonable care under the circumstances, and whether Jeremy 
Miller used reasonable care under the circumstances."  The corrected version provided: 
"In this case, you already have been instructed that defendant was negligent, but you 
must decide whether plaintiff used reasonable care after the first collision and whether 
Jeremy Miller used reasonable care under the circumstances." 

         2 
                 Kingery argues that the jury potentially reached this conclusion prior to 
receiving the corrected version of instruction no. 8. Whether it did so is unclear from the 
record. 

                                                     -5-                                               6543
 

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

                 In May 2008 Kingery filed a motion seeking an examination of the superior 

court judge for bias or, alternatively, a change of judge.  The superior court denied that 

motion as well, concluding that it was "without merit and without precedent" and noting 

                                                                                     3 
that if Kingery made "a separate motion to disqualify under Title 22,  that motion may 

be referred to another judge according to the process set by statute." Kingery did not file 

a separate motion seeking review by another judge. The superior court entered judgment 

in Barrett's favor, awarding him $8,265.90 in attorney's fees and costs. 

                 Kingery appeals the superior court's order denying his motion for a new 

trial. 

III.    DISCUSSION 

        A.       Standard Of Review 

                 "The question of whether to grant or refuse a new trial 'rests in the sound 

                                     4 
discretion of the trial court.'"       "We will 'affirm a trial court's decision to deny a new 

trial if there is an evidentiary basis for the jury's decision,' viewing the evidence in the 

                                                        5 
light most favorable to the non-moving party."   "We will only reverse a decision to deny 

a new trial 'if the evidence supporting the verdict was so completely lacking or slight and 

                                                                                        6 
unconvincing as to make the verdict plainly unreasonable and unjust.'" 

        3 
                 See   footnote   44   (discussing   AS   22.20.020(c),   to   which   the   court   was 
referring). 

        4 
                Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002) (quoting 
Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989)). 

        5 
                 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001) (quoting Pugliese v. 
Perdue, 988 P.2d 577, 581 (Alaska 1999)). 

        6 
                 Grant v. Stoyer, 10 P.3d 594, 596 (Alaska 2000) (quoting Pugliese, 988 
P.2d at 581). 

                                                    -6-                                              6543
 

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

                We apply our independent judgment to all questions of law, "adopting 'the 

                                                                                 7 
rule of law most persuasive in light of precedent, reason, and policy.'"           Whether a party 

has made a binding judicial admission is a question of law that we review de novo, 

                                           8 
applying our independent judgment. 

                "We review jury instructions de novo when a timely objection is made. 

                                                                                           9 
Without a timely objection, we will only review instructions for plain error."                "Plain 

error will be found when an obvious mistake exists such that the jury instruction creates 

'a high likelihood that the jury will follow an erroneous theory resulting in a miscarriage 

              10 
of justice.'" 

                The    superior   court's   evidentiary    rulings   are  reviewed    for   abuse   of 

            11 
discretion.     "We leave questions of admissibility to the sound discretion of the trial 

court, reversing only if, upon review of the record as a whole, we are left with 'a definite 

and firm conviction that the trial court erred in its ruling and the error affected the 

                                   12 
substantial rights of a party.'" 

        7 
               Jacob v. State, Dep't of Health & Soc. Servs., 177 P.3d 1181, 1184 (Alaska 
2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 

        8 
               Pugliese, 988 P.2d at 580. 

        9 
                Cummins,   Inc.   v.   Nelson,   115   P.3d   536,   541   (Alaska   2005)   (internal 
citations omitted). 

        10 
                Ollice v. Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska 1983). 

        11 
               Bylers Alaska Wilderness Adventures, Inc. v. City of Kodiak, 197 P.3d 199, 
205 (Alaska 2008). 

        12 
               Id. (quoting Dobos v. Ingersoll, 9 P.3d 1020, 1023 (Alaska 2000)). 

                                                 -7-                                            6543
 

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

        B.	     The Superior Court Did Not Err In Denying Kingery's Motion For A 
                New Trial. 

                Kingery advances a number of arguments in support of his contention that 

the superior court erred in denying his motion for a new trial.  Kingery argues that he is 

entitled to a new trial because:          (1) the jury verdict was inconsistent with Barrett's 

position during litigation and his admissions of negligence; (2) the jury was given an 

erroneous instruction; (3) Alaska law precludes a defense verdict in the present case; 

(4) the verdict was against the weight of the evidence; (5) the trial court impermissibly 

interjected during Kingery's examination of a witness; (6) the trial court erroneously 

excluded evidence Kingery wished to introduce; and (7) the trial court was biased against 

Kingery. 

                1.	     Alaska law does not preclude a defense verdict in this case, and 
                        Kingery is therefore not entitled to a new trial on this ground. 

                Kingery argues that Barrett was the cause of at least some of Kingery's 

                                                                              13 
injuries as a matter of law.      Kingery, citing Winschel v. Brown,             argues that Alaska's 

                            14 
"substantial factor test"      of causation requires an award of damages in the present case. 

Because "'but for' Barrett's original negligence . . . there would have been no risk of a 

vehicle such as Miller's coming along and colliding with                . . . Kingery's vehicle," and 

because "this was a foreseeable harm brought about by Barrett," Kingery asserts that 

"[u]pon retrial Barrett should, as a matter of law, be held legally responsible for any and 

        13	 
                 Winschel v. Brown, 171 P.3d 142 (Alaska 2007). 

        14 
                The   test   requires   the   plaintiff   to   demonstrate   two   elements:  "that   the 
accident would not have happened 'but for' the defendant's negligence and that the 
negligent act was so important in bringing about the injury that reasonable individuals 
would regard it as a cause and attach responsibility to it."            Id. at 148.    The legal cause 
instruction given to the jury included both elements. 

                                                   -8-	                                            6543
 

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

all of Kingery's damages related to both collisions."  Barrett argues that Kingery did not 

preserve this argument below and that, in any event,  Winschel is not on point. 

                 Kingery did not argue at trial that Barrett caused Kingery's injuries as a 

matter   of   law.   He   did   not   move   for   a   directed   verdict   on   causation,   propose   jury 

instructions explaining that Barrett was the cause of Kingery's injuries as a matter of law, 

or otherwise argue that Barrett caused Kingery's injuries as a matter of law. Kingery has 

                                       15 
therefore waived the argument. 

                 2.	     Kingery is not entitled to a new trial because Barrett made no 
                         binding admissions with which the jury verdict was inconsistent. 

                 Kingery argues that the jury verdict was inconsistent with Barrett's position 

throughout the course of the litigation, and that he is therefore entitled to a new trial. 

        15 
                Blood v. Kenneth A. Murray Ins., Inc., 151 P.3d 428, 431 n.17 (Alaska 
2006) (A party waives an argument if the party does "not raise the point in the superior 
court     . . . by requesting a jury instruction or moving for a directed verdict." (citing 
Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1120 (Alaska 2002))); see also Mullins 
v. Oates, 179 P.3d 930, 941 n.31 (Alaska 2008) ("A party may not raise an issue for the 
first time on appeal." (quoting Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 
2001))). 
                 We also note that Kingery never argued in the superior court, nor does he 
argue to us on appeal, that Barrett and Miller were concurrent tortfeasors, and as such, 
causes of a single, indivisible harm.  1 DAN B. DOBBS, THE LAW OF TORTS  174, at 423 
(2001) ("[W]hen the plaintiff suffers injuries that are similar in nature or consequences, 
so that they cannot be separated in any practical way and cannot be attributed separately 
to the separate tortfeasors, each tortfeasor is treated as a cause of the entire indivisible 
injury.").    In his closing argument, for example, Kingery asked the jury to apportion 
Kingery's injuries between the two collisions. And Kingery himself testified that he felt 
injured only after the second collision.            Because Kingery did not argue a theory of 
concurrent causation, and because, as we explain below, there was sufficient evidence 
to   support   the   jury's   determination   that   the   first   collision   did   not   cause   Kingery's 
injuries, it was not plain error for the superior court not to instruct the jury on concurrent 
causation,   nor   do   we   need   to   decide   whether   Miller   and   Barrett   were   concurrent 
tortfeasors. 

                                                    -9-	                                             6543
 

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

Kingery   suggests   that   Barrett   disputed   only  the   extent   to   which   he   was   liable,   not 

whether he was liable, identifying statements in Barrett's trial brief and parts of Barrett's 

                                   16 
proposed   jury  instructions.          Barrett   responds   that   although   he   admitted   he   drove 

negligently, he maintained throughout trial that his negligence was not the legal cause 

of any injuries Kingery may have suffered. 

                 "A   judicial   admission,   to   be   binding,  must   be   one   of   fact   and   not   a 

                                                          17 
conclusion of law or an expression of opinion."               "The admission must consist of 'clear, 

                                                            18 
deliberate, and unequivocal statements of fact.'"               None of the statements identified by 

Kingery are binding judicial admissions.  Kingery identifies Barrett's statements in his 

trial brief that: (1) he was not "the sole real and proximate cause of [Kingery's] injuries"; 

(2) the jury was required to "determine the measure of damages and which party is 

responsible for the damages";           and (3) not "all of the damages [Kingery] claims are 

related to the accident." (Emphasis in Appellant's brief.) None of these three statements 

are   admissions,   much   less   unequivocal   statements   of   fact,   as   required   for   judicial 

                                19 
admissions to be binding. 

                 Kingery also identifies the first sentence of one of Barrett's proposed jury 

instructions, which read:   "The defendant has admitted that he is legally responsible for 

         16 
                 Kingery also identifies statements made by Miller's attorney.                    Nothing 
Miller's attorney stated could be a binding judicial admission for Barrett. 

         17 
                 Hayes v. Xerox Corp., 718 P.2d 929, 931 (Alaska 1986). 

         18 
                 Pugliese v. Perdue, 988 P.2d 577, 580 (Alaska 1999) (quoting Hayes, 718 
P.2d at 933). 

         19 
                 See id. at 580-81 (holding that defendant's concessions at closing argument 
that plaintiff was "entitled to some compensation" and that it "just wouldn't be fair and 
just to award him nothing" were not binding judicial admissions that conflicted with a 
defense verdict because they were "framed as counsel's personal opinions or as proposed 
legal conclusions"); see also Hayes, 718 P.2d at 933. 

                                                    -10-                                              6543
 

----------------------- Page 11-----------------------

some part of the plaintiff's injuries."  But this sentence originally appeared in Kingery's 

proposed   jury   instructions,   and   seems  to   have   been   copied   into   Barrett's   proposed 

instructions.   Furthermore, it is framed as a legal conclusion.  Finally, it is immediately 

followed by the following sentence:             "You must decide how much money, if any, will 

fairly compensate the plaintiff." (Emphasis added.)                  The statement, when viewed in 

context, is not a "clear, deliberate, and unequivocal statement[] of fact," and is therefore 

                                         20 
not a binding judicial admission. 

                 None      of  the   statements     identified    by   Kingery     are   binding     judicial 

                                                   21 
admissions that conflict with the verdict,             and Kingery is not entitled to a new trial on 

                  22 
these grounds. 

                 3.	     Kingery is not entitled to a new trial because the inclusion of the 
                         erroneous jury instruction was harmless error. 

                 Kingery   argues   that   a   mistake   in   jury   instruction   no.   8,   which   defined 

negligence, entitles him to a new trial.            The superior court read an initial version of 

instruction   no.   8   that   charged   the   jury   with   determining   whether   Barrett   had   acted 

negligently.      The printed instructions provided to the jury initially contained the same 

error.   Kingery argues that the jury had already reached a verdict before it received a 

corrected version of the instruction, and therefore that "the jury decided this case based 

upon [an] erroneous instruction."  Barrett does not dispute the mistake, but he observes 

        20	 
                 See id. at 580; Hayes, 718 P.2d at 931. 

        21 
                 We also note that this case was not one in which the defendant switched his 
theory of the case at trial and plaintiff was not given accommodation or an opportunity 
to adjust. Barrett maintained from the outset that he was not the legal cause of Kingery's 
injuries. 

        22 
                 See    Pugliese,    988    P.2d   at  581    ("[B]ecause   the     verdict   [in  favor    of 
defendant] did not conflict with any binding admissions as to causation, it follows that 
the trial court did not err in denying a new trial on that basis."). 

                                                    -11-	                                              6543
 

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

that after the court read the erroneous version of the instruction to the jury it immediately 

informed the jury that instruction no. 8 was incorrect and that the jury would receive a 

revised instruction the next morning.  Barrett also argues that "[i]t is pure speculation to 

suggest that the court's misreading of one clause in one instruction at the end of nearly 

two weeks of trial caused the jury to improperly decide this case." 

                 We note that the special verdict form correctly indicated  that Barrett was 

negligent,   and   that   the   first   question   the   jury   had   to   answer   was   whether   Barrett's 

admitted   negligence   was   a   legal   cause   of  Kingery's   harm.         We   also   note   that   jury 

instruction no. 5 provided:   "I hereby instruct you as a matter of law that Mr. Barrett was 

negligent . . . ." 

                 Kingery did not object to any of the jury instructions.              "Without a timely 

                                                                          23 
objection, we will only review instructions for plain error."                "Plain error will be found 

when an obvious mistake exists such that the jury instruction creates 'a high likelihood 

                                                                                                         24 
that the jury will follow an erroneous theory resulting in a miscarriage of justice.'" 

                 Even if the jury had not received the corrected version of instruction no. 8, 

it is highly unlikely that the mistake altered the result.  As Barrett notes, jury instruction 

no. 5 clearly stated that "Barrett was negligent" "as a matter of law."                      Furthermore, 

because the special verdict form did not submit the issue of Barrett's negligence to the 

      25 
jury,      and   the   first   question   the   jury   had   to   answer   was   question   two   -   whether 

Barrett's negligence was a cause of Kingery's injuries - the jury was not required or 

able to consider the issue of negligence. 

         23 
                 Cummins, Inc. v. Nelson, 115 P.3d 536, 541 (Alaska 2005) (citing Manes 
v. Coats, 941 P.2d 120, 125 (Alaska 1997)). 

         24 
                 Ollice v. Alyeska Pipeline Serv. Co., 659 P.2d 1182, 1185 (Alaska 1983). 

         25 
                 The negligence question was pre-answered "yes" when the special verdict 
form was provided to the jury. 

                                                    -12-                                               6543
 

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

                Any error with respect to instruction no. 8 was harmless (and therefore not 

plain error), and Kingery is not entitled to a new trial because of instruction no. 8. 

                4.	     The jury verdict was not against the evidence so as to entitle 
                        Kingery to a new trial. 

                Kingery argues that the jury must have improperly disregarded the evidence 

in reaching its verdict. Kingery specifically cites the testimony of Dr. Ballard, Dr. Lucas, 

Dr. Werner, and physical therapist Lear. Barrett argues that the evidence was "more than 

adequate to support [the superior court's] denial of Kingery's Motion for [a] New Trial." 

                Under Alaska Rule of Civil Procedure 59(a), a trial court may grant a new 

                                                   26 
trial "if required in the interest of justice."        "A court may set aside a verdict as being 

against the weight of the evidence even when 'there is substantial evidence to support it.' 

                                                                    27 
The decision is a matter for the trial court's discretion."            But we apply a much more 

deferential standard "when reviewing a trial court's decision to deny a new trial after a 

                28 
jury verdict,"     reversing only "if the evidence supporting the verdict was so completely 

lacking or slight and unconvincing as to make the verdict plainly unreasonable and 

          29 
unjust." 

        26 
                Rule 59(a) provides in relevant part:   "A new trial may be granted to all or 
any of the parties and on all or part of the issues in an action in which there has been a 
trial by jury or in an action tried without a jury, if required in the interest of justice." 

        27 
                Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) (quoting 
Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1176 (Alaska 2002)). 

        28 
                Id. 

        29 
                Grant   v.   Stoyer,   10   P.3d   594,   596   (Alaska   2000)   (quoting Pugliese   v. 
Perdue, 988 P.2d 577, 581 (Alaska 1999)). 

                                                  -13-	                                           6543
 

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

                 Inadequacy of a jury verdict can be grounds for a new trial in cases where 

                                                                                                    30 
negligence and causation are conceded or proved, but no damages are awarded.                            For 

example, in Pugliese v. Perdue, we reversed the superior court's denial of a motion for 

                                                                                              31 
a new trial following a jury verdict for the defendant in a negligence action.                    We held 

that "[t]he undisputed facts establish[ed]" that the defendant's negligence caused the 

plaintiff some degree of injury, and that  "a verdict finding that [plaintiff's] injuries 

                                                                                                          32 
resulted from some other traumatic cause would have required sheer speculation." 

Similarly, in Grant v. Stoyer, we granted a new trial to aplaintiff to whom a jury awarded 

no damages in a negligence action and held that "where negligence and causation of 

compensable physical injury are conceded or proved, and where evidence of at least 

some pain and suffering is substantial and uncontroverted, some damages ordinarily must 

                 33 
be awarded." 

                 But if conflicting evidence about causation exists we will not reverse the 

                                                                                                          34 
superior court's denial of a motion for a new trial following a verdict for the defendant. 

In Hogg v. Raven Contractors, Inc., we affirmed the superior court's denial of a motion 

for   a   new   trial   in   an   action   in   which   the  jury   determined   that   defendant   had   been 

                                                                                                          35 
negligent,      but   that   its  negligence     was    not    the   cause    of  plaintiff's    injuries. 

Distinguishing Grant, we held: 

        30 
                 See Glamann v. Kirk, 29 P.3d 255, 263 (Alaska 2001).
 

        31 
                 Pugliese, 988 P.2d at 581-83.
 

        32
 
                 Id. at 581-82. 

        33 
                 Grant, 10 P.3d at 598. 

        34 
                 See Richey v. Oen, 824 P.2d 1371, 1375-76 (Alaska 1992). 

        35 
                 Hogg v. Raven Contractors, Inc., 134 P.3d 349, 353 (Alaska 2006). 

                                                    -14-                                              6543
 

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

                 In   the   present   case,   the   evidence   convinced   the   jury   that 
                 [defendant]      was    negligent,    and   clearly    establishes    that 
                 [plaintiff] suffered serious physical injuries, but it does not 
                 necessarily establish that [defendant's] negligence was the 
                 cause of [plaintiff's] injuries.  Thus, the trial court's decision 
                 to deny a new trial is consistent with an independent review 
                 of the evidence and does not violate the rule announced by 
                 this court in Grant.[36] 

                 Like the defendant in Hogg, Barrett was negligent.               And like the plaintiff 

in Hogg, the evidence establishes that Kingery was injured at some point.  But again, as 

in Hogg, the evidence "does not necessarily establish" that Barrett's negligence was the 

cause of Kingery's injuries. 

                 Kingery argues that "the overwhelming and undisputed medical evidence 

. . . proves that Mr. Kingery sustained substantial soft tissue injuries in this accident, at 

minimum a temporary aggravation of a preexisting condition . . . for which he is entitled 

to be compensated, as a matter of law."  As noted above, however, Kingery waived his 

                                                                          37 
argument that Barrett caused his injuries as a matter of law. 

                 Given the conflicting evidence presented to the jury and the way the case 

was presented and argued, we conclude that the jury could permissibly determine that 

Barrett's negligence was not the cause of Kingery's injuries.               The verdict was therefore 

        36 
                Id. 

        37 
                 See Part III.B.1, supra. Moreover, although Dr. Ballard, who performed the 
independent medical examination, testified that he believed Kingery "had a cervical and 
a lumbar strain . . . as a result of [the 2001 collisions]," Dr. Ballard did not testify that the 
first collision, rather than the second, caused any harm to Kingery. And Kingery himself 
testified that he did not "feel like [he]'d been injured" following the first collision. When 
asked how he felt after the second collision, Kingery explained:                   "All I felt was just 
needles and pins when I did get hit, all the way through my back bone."                    Thus there is 
evidence to support a jury finding that all of Kingery's injuries were caused by the 
second collision, and not by the first collision with Barrett. 

                                                   -15-                                              6543
 

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

not plainly unreasonable or unjust, and Kingery is not entitled to a new trial on these 

grounds. 

                 5.	     Kingery is not entitled to a new trial because the trial court's 
                         exclusion of evidence was within the court's discretion. 

                 Kingery argues that the superior court improperly excluded the Allstate 

claim file information based on an "antiquated application" of Alaska Rule of Evidence 

      38 
411.      Barrett argues that the materials were properly excluded, and that all evidence 

with particularly probative value in the claim file was admitted. 

                 It appears that the superior court excluded the claim file under Alaska Rule 

                     39 
of Evidence 403         rather than Rule 411; in excluding the evidence the court stated:                 "I 

just don't see anything here that overall isn't more prejudicial than probative to try to 

explain what happened."           "When reviewing the exclusion of evidence under Evidence 

Rule   403   as   unfairly   prejudicial,   we   first   'consider   the   relevance   of   the   [excluded 

         38	 
                 Alaska Rule of Evidence 411 provides: 

                 Evidence      that  a  person    was    or  was   not   insured    against 
                 liability is not admissible upon the issue whether the person 
                 acted negligently or otherwise wrongfully. This rule does not 
                 require     the  exclusion     of   evidence    of   insurance     against 
                 liability when offered for another purpose, such as proof of 
                 agency,   ownership,   or   control,   or   bias   or   prejudice   of   a 
                 witness. 

         39 
                 Alaska Rule of Evidence 403 provides: 

                 Although relevant, evidence may be excluded if its probative 
                 value    is  outweighed      by   the   danger    of  unfair   prejudice, 
                 confusion      of  the   issues,   or  misleading      the   jury,  or   by 
                 considerations   of   undue   delay,   waste   of   time,   or   needless 
                 presentation of cumulative evidence. 

                                                    -16-	                                             6543
 

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

evidence]   and   then   determine   whether   .   .   .   [the   superior   court's   exclusion   of   it] 

                                                    40 
constitute[s] a clear abuse of discretion.'" 

                 While   some   of   the   Allstate   claim  file   may   have   been   relevant   under 

                         41 
Evidence   Rule   401,        its   exclusion   under   Rule   403   was   not   an   abuse   of   discretion. 

Kingery suggests that the claim file should have been admitted to show what Allstate 

employees told him, the date on which he first felt pain following the collisions, the 

amount of time between the collisions, and that Kingery provided the name of a potential 

witness to Allstate employees. 

                 The date on which Kingery first felt pain and the amount of time between 

collisions were items of potentially considerable significance in the present case. But the 

court allowed the documents Kingery wished to introduce for those purposes - a note 

reflecting the fact that his wife told a claim adjuster that Kingery was very sore following 

the accident and a note reflecting Kingery's estimation on the day of the collisions that 

only one-and-a-half to two minutes passed between the collisions - to be read to the 

jury. As far as a potential witness is concerned, the court observed that Kingery was free 

to interview and call that witness himself. Thus, Kingery was permitted to convey to the 

jury the relevant and probative information that was contained in the Allstate file; the 

trial court permissibly exercised its broad discretion in excluding the evidence it found 

to be more prejudicial than probative. 

                 The superior court did not abuse its discretion in excluding the insurance 

file, and Kingery is not entitled to a new trial on these grounds. 

         40 
                 Liimatta   v.   Vest,   45   P.3d   310,   313   (Alaska   2002)   (quoting  Poulin   v. 
Zartman, 542 P.2d 251, 260 (Alaska 1975)) (some alteration in original). 

         41 
                 Alaska Rule of Evidence 401 defines relevant evidence as "evidence having 
any     tendency    to   make    the  existence     of  any   fact  that   is  of  consequence      to  the 
determination of the action more probable or less probable than it would be without the 
evidence." 

                                                   -17-                                              6543
 

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

               6.	    Kingery     waived    his  arguments      of  superior   court   bias   or 
                      improper interjection during his examination of a witness. 

               Kingery's final two arguments are that the superior court impermissibly 

interjected itself during Kingery's examination of Dr. Werner and that the trial court was 

biased against Kingery.   In support of the bias argument he cites the court's suggestion 

that the case was a "penny ante personal injury case[]" and the court's alleged impatience 

with his case.   Kingery does not elaborate on these arguments or provide a single legal 

authority supporting either.      He has therefore waived the arguments by inadequately 

                42 
briefing them. 

               We note, however, that in our independent review of the trial record, we see 

                                                                        43 
no indication that the superior court was biased against Kingery           or that the court's 

interjection was improper.  The court's suggestion that the case was a "penny ante" one 

was not made in front of the jury. In context, the superior court's comment was a lament 

that personal injury cases of relatively small value ("penny ante" cases) were harder to 

try because the cases could not be prepared as thoroughly as larger value cases where 

there was more at stake, yet it also seemed that the smaller personal injury cases were 

less likely to settle.   The court began its comments with the statement that it was "really 

sympathetic with both" attorneys. There is no suggestion in any of the court's comments 

       42 
               See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) 
("[W]here a point is given only a cursory statement in the argument portion of a brief, 
the point will not be considered on appeal."). 

       43 
               See Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2002) ("[J]udicial 
remarks during the course of a trial that are critical or disapproving of, or even hostile to, 
counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. 
. . . Not establishing bias or partiality . . . are expressions of impatience, dissatisfaction, 
annoyance and even anger, that are within the bounds of what imperfect men and women 
. . . sometimes display." (quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994)) 
(emphasis and some alteration in original)). 

                                             -18-	                                        6543
 

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

that it was biased against Kingery or his counsel.      Kingery is not entitled to a new trial 

                   44 
on either ground. 

IV.     CONCLUSION 

               Because the superior court acted within its broad discretion, we AFFIRM 

the superior court's denial of Kingery's motion for a new trial. 

        44 
               Inasmuch as Kingery's bias arguments are an appeal of the superior court's 
denial of his motion for disqualification under AS 22.20.020, rather than grounds for a 
new trial, he has also failed to preserve them for appeal.      Under AS 22.20.020(c), "[i]f 
a judicial officer denies disqualification the question shall be heard and determined by 
another judge assigned for the purpose by the presiding judge of the next higher level of 
courts."    But it was incumbent on Kingery, as the party seeking disqualification, to 
request that the chief justice assign the matter to a different judge after the superior court 
denied his motion.     See Coffey v. State, 585 P.2d 514, 525 (Alaska 1978) ("[U]nder 
AS 22.20.020(c), it was incumbent on Coffey to request the chief justice, as presiding 
judge of the next higher court, to appoint another judge to determine the question."). The 
superior court invited Kingery to file another motion seeking review by another judge, 
but he never did so.      He therefore failed to preserve the issue for appeal. See id.  at 
525-26. 

                                              -19-                                          6543 
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