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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miller v. Handle Construction Company (7/22/2011) sp-6579

Miller v. Handle Construction Company (7/22/2011) sp-6579, 255 P3d 984

        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,   email 


CHARLES GARY MILLER,                           ) 
                                               )       Supreme Court No. S-13426 
                        Appellant,             ) 
                                               )       Superior Court No. 3AN-08-08256 CI 
        v.                                     ) 
                                               )       O P I N I O N 
HANDLE CONSTRUCTION                            ) 
COMPANY,                                       )       No.  6579 - July 22, 2011 
                        Appellee.              ) 

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

                Appearances:       Patrick   B.   Gilmore,   Atkinson,   Conway   &
                Gagnon, Anchorage, for Appellant. Timothy C. Verrett, Law
                Offices of Timothy C. Verrett, PC, Anchorage, for Appellee.

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

                PER CURIAM.
                CHRISTEN,         Justice,  with   whom     CARPENETI,        Chief   Justice,   joins,


                A landowner contracted with a manufacturer to purchase a pre-fabricated 

steel hangar.     In a separate agreement, the landowner contracted with a construction 

company      to  erect   the  steel  hangar   on   his land.   After    completing     its  work,   the 

construction company sued the landowner for unanticipated costs it incurred as a result 

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

of manufacturing defects in the pre-fabricated hangar. The landowner made an $18,000 

offer of judgment, which the construction company accepted. But when the construction 

company received a separate payment from the manufacturer, the landowner refused to 

pay the full $18,000, arguing that an offset was warranted.  The superior court rejected 

the landowner's argument, ordering him to pay the full amount of the offer.  Because the 

basis for the superior court's decision is unclear, we reverse and remand for additional 

factual findings. 


                Gary Miller is the lessee of a tract of land at Lake Hood.                Planning to 

develop his land into a hangar facility, Miller purchased a pre-fabricated steel hangar 
building from VP Buildings (VP).1            Miller then entered into a contract with Handle 

Construction Company for Handle to erect thehangar and perform other services relating 

to the hangar's construction. 

                In assembling the building, two costly defects in the pre-fabricated hangar 

became apparent.  First, a paint-related defect caused rust damage.  Second, an entirely 

separate   defect   relating   to   the   steel   caused   Handle   to   incur   more   costs   than   it   had 

anticipated in erecting the building.   Handle claimed that the additional costs arising out 

of the steel defect amounted to $13,000.  The hangar manufacturer, VP, acknowledged 

the steel defect, but claimed that the damages were only around $6,000.  Miller also 

believed that the damages were less than Handle alleged. 

                Because both VP and Handle had contracted with Miller, but not with each 

other, Miller found himself in the position of a middleman with respect to the additional 

costs Handle had incurred as a result of the steel defect.              Handle could not directly 

recover from the manufacturer VP; rather, Handle would have to assert a claim against 

        1       During      the   relevant    time   period    of   this   case,   VP's    agent    was 

Superstructures. We refer to both entities as "VP." 

                                                  -2-                                               6579 

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

Miller, who would in turn have to seek recovery from VP.  Because Miller was reluctant 

to advocate for the higher amount of damages Handle alleged, and because he believed 

that Handle was in a better position to explain its claim, Miller authorized Handle to 

negotiate directly with the manufacturer as to the amount owed. 

                It appears that both Miller and Handle understood the scope of this granted 

authority to be quite narrow, consisting exclusively of the power to negotiate, and not the 

power to collect payment on Miller's behalf.           Miller stated in an affidavit that he never 

assigned Handle his contractual rights against VP.  The superior court echoed this in its 

findings, stating that Handle had no contractual relationship with VP and, thus, could not 

independently assert a claim against VP.            An email that Handle sent to Miller in May 

2008 suggests that Handle shared this understanding of the authority it had been granted. 

Handle wrote: 

                Please   understand   that   our   contract   is   with   you,   not   with 
                [VP].   In an attempt to help you secure payment from [VP], 
                I have forwarded all of the information . . . . Although, the 
                bottom line is, we expect payment from you whether you 
                receive payment from [VP] or not. 

Thus, it appears that both parties understood that Handle's negotiating authority did not 

encompass the power to independently recover from VP. 

                In March 2008, Handle recorded a lien against Miller's leasehold in the 

amount of $39,600.11, plus interest, costs, and attorney's fees. This amount included the 

alleged $13,000 "backcharges" caused by the steel defect, which was in addition to other 

unrelated damages that Handle argued Miller owed.               In June, Handle filed a complaint 

against Miller seeking recovery of the entire amount of the lien.             The following month 

VP - which was not a party to the pending litigation - offered to pay Handle $5,900 

as compensation for the additional costs it incurred related to the steel defect.              On the 

same day, VP also offered to pay Miller $9,502. While Handle took no immediate action 

                                                  -3-                                            6579

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

on its offer, Miller accepted his offer almost immediately. Although both Handle and VP 

later asserted that the $9,502 settled all of Miller's claims against VP, the superior court 

found   that   it   was   solely   for   the   "paint/rust   claim"   and   Handle   does   not   appeal   this 


                 In September, Miller made a Civil Rule 68 offer of judgment to Handle in 

hopes of settling Handle's lawsuit.  Miller's offer stated that it was 

                 to   allow   judgment   to   be   entered   against   him   in   complete 
                 satisfaction of Plaintiff's claims. This offer is in the principal 
                 amount        of    EIGHTEEN            THOUSAND             DOLLARS 
                 ($18,000.00), plus attorney's fees computed to the Civil Rule 
                 82(b)(1)      schedule     (contested     without     trial),  plus   costs 
                 computed       pursuant     to  Civil   Rule    79,  plus   prejudgment 

Several days after Miller made this offer,Handle's attorney asked Miller's attorney if the 

offer included an amount for the claim that Handle had concerning the steel defect. 

Miller's attorney said that it did and that Miller intended to collect the $5,900 VP had 
offered,2 to which Handle's attorney replied that the offer was probably too low. 

                 At   no   point   did   Miller   revoke   the   authority   he   had   granted   Handle   to 

negotiate directly with VP.   On October 2, Handle informed VP that it would accept the 

offer of $5,900. The following day, Handle accepted Miller's $18,000 offer of judgment. 

                 A   week   later,   Miller's   attorney   wrote   to   Handle's   attorney   regarding 

Handle's acceptance of both offers. Miller's attorney stated that the $5,900 from VP was 

rightfully Miller's, and reiterated that Miller had intended the offer of judgment to settle 

the steel defect claim.      Therefore, he explained, the amount that Handle had collected 

        2        While the superior court did not specifically find that Miller's attorney 

informed   Handle's   attorney   of   Miller's  intention   to   collect   the   $5,900,   both   parties 
acknowledged this fact in their respective pleadings: Handle in its memorandum in 
support for entry of judgment and Miller in his opposition to that motion. 

                                                     -4-                                                 6579 

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

from   VP   would   be   credited   against   Miller's   $18,000   offer   of   judgment.     Handle's 

attorney responded by insisting that Miller had not conditioned the offer of judgment on 

an offset and that, as a result, Handle expected full payment from Miller.  When Miller 

declined   to   pay   the   full   amount,   Handle   filed   a   motion   for   entry   of  judgment   upon 

confession, based upon Miller's Rule 68 offer and Handle's acceptance of the offer. 

                Miller opposed the motion.  The superior court held oral argument, but did 

not hold an evidentiary hearing. In its order on Handle's motion, the superior court 

rejected all of Miller's arguments, finding that the offer of judgment did not entail an 

offset   under   these   circumstances   and   that   Handle's   acceptance   was   not   voided   by 

unilateral mistake. The court made no findings as to whether the $5,900 Handle accepted 

from   VP   actually   belonged   to   Miller.    The  court   entered   judgment   against   Miller, 

ordering   him   to   pay   the   full   $18,000,   plus   attorney's   fees,   costs,   and   pre-judgment 


                Miller appeals. 


                We interpret an accepted offer of judgment according to our independent 
judgment.3     We review questions of law de novo.4 


                Miller argues that the superior court erred in finding that the circumstances 

did not warrant an offset of the judgment.  First, he argues that Handle's acceptance of 

both offers amounts to a double recovery and, therefore, the offer of judgment should be 

reduced by the $5,900 that Handle collected from VP.  Second, he asserts that the words 

        3       Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 638 (Alaska 2007). 

        4       Stewart v. Elliot, 239 P.3d 1236, 1239 (Alaska 2010) (citingJacob v. State, 

Dep't of Health & Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 

                                                   -5-                                               6579 

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

of the offer itself - which he argues unmistakably implied that Handle could not accept 

both offers - necessitate such an offset, especially when interpreted in light of the cross- 

counsel communications that occurred after Miller made his Rule 68 offer.  Finally, he 

argues that if the agreement does not entail an offset, it is unenforceable. 

                Because the superior court made no findings as to whether the $5,900 

Handle accepted from VP was rightfully Miller's, we are unable to evaluate the bulk of 

Miller's   arguments   on   appeal,   and   remand   to   the   superior   court   for   an   evidentiary 


        A.	     The Judgment Need Not Be Reduced By $5,900 In Order To Prevent 
                Double Recovery. 

                Miller argues that allowing Handle to keep both the $18,000 judgment and 

the $5,900 from VP gave Handle a double recovery for the steel defect claim, and that 

we must reduce the $18,000 judgment by the amount that Handle collected from VP to 

prevent this double recovery.   Miller cites no law in support of his argument. 
                Handle correctly asserts that we specifically held in Rules v. Sturn5 that 

double recovery arguments like Miller's do not apply in the Rule 68 context.  In Rules, 

we addressed a similar set of facts.        Rules operated a truck that collided with Sturn's 
automobile.6     Some time after Sturn filed a personal injury claim against Rules, Rules 

made a Rule 68 offer of judgment that stated:  "defendants . . . do hereby offer to allow 

judgment to be entered herein for plaintiffs . . . and against defendants in the amount of 

$11,000.00 to which may then be added appropriate sums for prejudgment interest, costs 

        5       661 P.2d 615 (Alaska 1983). 

        6       Id. 

                                                  -6-                                              6579 

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

of suit incurred to date and an attorney's fee . . . ."7            Although the offer specified a 

definite sum and made no mention of any offset, Rules's attorney informed Sturn's 

attorney in a conversation, which occurred after the offer was made but prior to its 

acceptance, that the judgment would be reduced by the sum of advance payments that 
Rules had made to cover Sturn's medical treatment in the years since the collision.8 

Despite Sturn's disagreement with this proposition, the check that Rules delivered to 
Sturn was for the reduced amount.9           The superior court denied Rules's motion to have 

satisfaction of judgment entered for that reduced sum.10 

                On appeal, Rules argued that allowing Sturn to keep both the full amount 
of the judgment and the advanced medical payments would result in a double recovery.11 

We rejected Rules's double recovery argument: 

                        The doctrine prohibiting multiple recovery is relevant 
                only where it is known what amount of money or property 
                constitutes   compensation.   .   .   .   In   a   particular   case,   what 
                constitutes compensation is known only after a trial on the 
                merits of the issue. 

                        The     purpose     of  Civil   Rule    68   is  to   encourage 
                settlement in civil cases and to avoid protracted litigation.  In 
                an attempt to reach a settlement, a defendant is not bound 
                under     Civil   Rule    68    to  make     an   offer   of   judgment 
                commensurate with any degree of compensation. 

        7       Id. at 615-17. 

        8       Id. at 617-18. 

        9       Id. 

        10      Id. at 616. 

        11      Id. 

                                                   -7-                                             6579

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

                         Therefore, we find that it makes little sense to speak of 
                 multiple   recovery   since   Civil   Rule   68   does   not   place   any 
                 burden on a defendant to extend an offer of judgment which 
                 is related to compensation. Moreover, an amount constituting 
                 appropriate compensation has not been determined in this 

The same reasoning applies here.             As we held in Rules, because the purpose of the 

prohibition against multiple recovery is to prevent over-compensation, it does not apply 

in a Rule 68 context, where there is no guarantee that the offer of judgment reflects the 

actual amount of compensation warranted. 

        B.	      We Are Unable To Assess Miller's Remaining Arguments Because Of 
                 The Lack Of Factual Findings. 

                 Miller's remaining arguments assume that the $5,900 Handle collected from 

VP was rightfully Miller's.         The parties disputed this issue in the proceedings below. 

Handle argued that the $9,502 VP paid Miller settled all of Miller's claims against VP, 

and therefore, Miller had no right to the $5,900 that VP eventually paid Handle.  Handle 

pointed     to  the   explicit   terms    of  the   settlement     agreement     and    submitted     a  VP 

representative's affidavit stating that following Miller's acceptance of the $9,502, he was 

entitled to no further compensation from VP.  Miller submitted his own affidavit to the 

court asserting that the $9,502 he collected from VP was solely for the paint-defect claim, 

and that the remaining $5,900, in payment for the steel defect claim, was rightfully his. 

                 The   superior   court   did   not   hold  an   evidentiary   hearing.    Although   the 

superior court stated that the $9,502 was for the "paint/rust claim," it made no findings 
as to whether the remaining $5,900 was rightfully Miller's.13  The superior court held that 

        12	     Id. (citations omitted). 

        13       On appeal, Handle refers to "VP's willingness to kick in an additional 


                                                    -8-                                                 6579 

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

the offer of judgment did not entitle Miller to an offset and that Miller was required to 

pay   Handle   the   full   offer   of   judgment   amount;   thus,   the   superior   court   apparently 

concluded that the disputed issue was not material.               We disagree, and remand to the 

superior court for an evidentiary hearing. 

                The   central   issue   in   this   case   is   the   meaning   of   the   accepted   offer   of 

judgment. Specifically, we must determine whether the accepted offer warrants an offset 

in these circumstances.       Rule 68 allows a party to make an offer of judgment "[a]t any 
time   more   than   10   days   before   the   trial   begins."14 The   purpose   of   the   rule   is   "to 

encourage settlement in civil cases and to avoid protracted litigation."15             A Rule 68 offer 

of judgment "must specify a definite sum and must be unconditional,"16 and once the 

offer of judgment has been served, the offeror cannot modify or revoke it for ten days.17 

Because "[a]n offer of judgment and acceptance thereof is a contract,"18 we interpret an 

accepted offer of judgment using our independent judgment and applying the rules of 
contract interpretation.19 

        13       (...continued) 

$5,900," with no discussion of who owned the money. 

        14      Alaska R. Civ. P. 68(a). 

        15      Rules, 661 P.2d at 616 (citing Cont'l Ins. Co. v. U.S. Fid. & Guar. Co., 552 

P.2d 1122, 1125-36 (Alaska 1976)). 

        16       Turner v. Municipality of Anchorage, 171 P.3d 180, 187 (Alaska 2007) 

(quoting Davis v. Chism, 513 P.2d. 475, 481 (Alaska 1973)). 

        17       White v. Harvey, 979 P.2d 1012, 1013 (Alaska 1999) (citing LaPerriere v. 

Shrum, 721 P.2d 630, 634-35 (Alaska 1986)) (internal quotation marks omitted). 

        18      Davis, 513 P.2d at 481. 

        19       O'Donnell v. Johnson, 209 P.3d 128, 131 (Alaska 2009). 

                                                   -9-                                             6579

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

                "The     goal   of  contract   interpretation   is   to  give   effect  to  the  parties' 
reasonable expectations . . . .20    "The parties' expectations must be gleaned not only from 

the contract language, but also from extrinsic evidence, including evidence of the parties' 

conduct, goals sought to be accomplished, and surrounding circumstances when the 
contract was negotiated."21       Thus, in order to ascertain the meaning of Miller's accepted 

offer of judgment, we must determine the parties' reasonable expectations by considering 

the offer's express terms in light of extrinsic evidence. 

                 1.      Post-offer extrinsic evidence is not relevant. 

                As   a   preliminary   matter,   we   reject   Miller's   argument   that   the   offer   of 

judgment should be interpreted in light of the communications his attorney had with 
Handle's attorney after the offer was made.  Again, Rules v. Sturn22 controls.   There, we 

rejected the argument that even though the offer of judgment's terms made no mention 

of an offset, an offset was implied in light of the post-offer cross-counsel communication 

expressing the intent that the judgment be reduced by the sum of advance payments made 
in the years since the collision.23      We stated that the offer would be subject to an offset 

if "the words in the offer of judgment, when interpreted in light of all the surrounding 

        20      Matanuska Elec. Ass'n, Inc. v. Chugach Elec. Ass'n, Inc., 99 P.3d 553, 562 

(Alaska 2004) (citing Stepanov v. Homer Elec. Ass'n, Inc., 814 P.2d 731, 734 (Alaska 

        21      Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009) (citingNeal & Co. v. 

Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895 P.2d 497, 502 (Alaska 1995)). 

        22       661 P.2d 615 (Alaska 1983). 

        23      Id. at 617-18. 

                                                  -10-                                             6579

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

circumstances, reasonably require[d] such a finding."24  However, because Rule 68 offers 

are irrevocable for ten days and then automatically withdrawn,25 we concluded that 

extrinsic evidence that comes into being after the offer is made is irrelevant to the offer's 

               The same rule applies here. Because the only extrinsic evidence a court can 

look to in interpreting an offer of judgment is that which existed at the time the offer was 

made, the post-offer communications expressing Miller's intent to collect the $5,900 

from VP are irrelevant to the accepted offer of judgment's meaning. Miller contends that 

Rules only precludes post-offer extrinsic evidence that modifies the offer, and does not 

prevent courts from looking to post-offer extrinsic evidence to determine the offer's 

meaning.    We disagree.     We stated in Rules that "the extrinsic circumstances to which 

one can refer to determine the meaning of [an] offer [of judgment] should be those 
existing at the time the offer is made."27    We did not distinguish between modification 

and clarification there, and we decline to do so here. 

               Miller goes on to argue that an offset is warranted because, as a result of the 

post-offer communications, Handle knew that Miller intended to collect the $5,900 from 

VP.   It is true that when one party knows or has reason to know that the other party 

attaches a different meaning to the contract, the contract is interpreted in accordance with 

       24      Id. at 617. 

       25      Alaska R. Civ. P. 68(a). 

       26      Rules, 661 P.2d at 618-19 & n.4. 

       27      Id. at 618 n.4. 

                                              -11-                                        6579

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

the second party's meaning.28          But in this case, the extrinsic evidence giving rise to 

Handle's knowledge of Miller's intended meaning came into being after Miller made his 
offer.  It is therefore irrelevant to our interpretation of the agreement.29   Consequently, 

we reject this argument, and focus exclusively on the extrinsic evidence that existed at 

the time Miller made his offer. 

                2.	     Whether an offset is warranted in these circumstances depends 
                        on whether the $5,900 was rightfully Miller's. 

                Miller argues that even if post-offer extrinsic evidence is not taken into 

account, the offer of judgment requires an offset in these circumstances.  We agree that 

the   accepted   offer   of   judgment   would   warrant   an   offset   if   the   $5,900   was,   indeed, 

Miller's money; however, because that remains a disputed issue of material fact, we 

remand to the superior court for an evidentiary hearing. 

                In his Rule 68 offer of judgment, Miller offered to pay $18,000 plus add-ons 

"in complete satisfaction of Plaintiff's claims."  As Miller argues on appeal, this implies 

that Miller intended the $18,000 to settle all of Handle's claims against him, including 

the claim arising out of the steel defect. The superior court held that these circumstances 

did not warrant an offset because Miller failed to include an express offset term.  But the 

superior court failed to acknowledge the terms that every offer of judgment  implies. 

When a party makes a Rule 68 offer, he implicitly expresses his willingness to give up 

a specific amount of his own money in exchange for certainty that this is the only amount 

he will lose going forth with respect to the claims at issue.  This exchange is the essence 

of settlement.      When Miller offered $18,000 "in complete satisfaction of Plaintiff's 

        28      Sprucewood Inv. Corp. v. Alaska Hous. Fin. Corp., 33 P.3d 1156, 1163 n.21 

(Alaska 2001) (quoting 5 MARGARET N. KNIFFIN, CORBIN ON CONTRACTS  24.5, at 15 
(rev. ed. 1998)). 

        29	     See supra notes 26-27 and accompanying text. 

                                                  -12-	                                              6579 

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

claims," he reasonably expected that Handle's acceptance would guarantee that this was 

the only amount of Miller's money Handle would receive for this set of damages after 
the offer was made.30 

                If the $5,900 was Miller's money, then it was unreasonable as a matter of 

law for Handle to expect that it could both accept the offer of judgment and retain the 

$5,900 it accepted from VP on Miller's behalf.  Miller did not need to include express 

language to that effect; if the $5,900 was indeed Miller's, this conclusion follows from 

the offer's implied terms, and an offset would be warranted. However, if the $5,900 was 

not rightfully Miller's, then Handle's acceptance of both the offer of judgment and the 

$5,900   would   not   be   inconsistent   with   the  implied   terms   described   above,   and   the 

agreement would not entail an offset. 


                Because the superior court's factual findings are insufficient, we are unable 

to   determine   whether   the   accepted   offer   of   judgment   warrants   an   offset   in   these 

circumstances.      We   REMAND   to   the   superior   court   for   an   evidentiary   hearing   to 

determine whether the $5,900 was rightfully Miller's money. 

        30      This is a fundamental difference between the current case and Rules v. 

Sturn.   There, the offeror Rules argued that the offer of judgment should be offset by the 
amount of money he had paid Sturn before making the offer.                 Rules, 661 P.2d at 617. 
Here, the offset at issue represents money Handle collected after Miller extended the 
offer of judgment. 

                                                 -13-                                            6579

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

CHRISTEN, Justice, with whom CARPENETI, Chief Justice, joins, dissenting. 

                I write separately to express my disagreement with the court's decision to 

remand to the superior court for a finding on whether the $5,900 paid by VP to Handle 

was rightfully Miller's money. 

                In my view, the uncontested facts known to the parties when Miller made 

his offer of judgment clearly establish that the VP payment belonged to Miller.                     It is 

uncontested that Handle was never in privity of contract with VP, and Handle's counsel 

confirmed at oral argument that Handle never brought a claim against VP.                        Indeed, 

Handle went out of its way to communicate that its contract was with Miller and that it 

would look to Miller to satisfy its claim for cost overruns.  In addition, although Miller 

enlisted Handle as the appropriate agent to negotiate the rust and steel defect claims with 

VP   -   an   entirely   reasonable   step   in   light   of   Handle's   first-hand   knowledge   of   the 

construction process - Handle has not alleged that Miller ever agreed or even suggested 

that Handle could keep the settlement it negotiated with VP.  These facts are part of the 

extrinsic   evidence   that   must   be   considered   in   determining   the   parties'   reasonable 
expectations regarding the settlement offer.1         With no contract or claim existing between 

Handle and VP, the circumstances show that both Miller and Handle understood Miller's 

settlement offer to have been premised on the assumption that Handle had no claim to 

direct reimbursement from VP and would be required to turn over any recovery to Miller. 

Thus, I believe that this case need not be remanded for a finding that addresses whether 

the $5,900 was Miller's money.  I would reverse the superior court's decision, hold that 

        1       See Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009) (citing Neal & 

Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth., 895 P.2d 497, 502 (Alaska 
1995));Rules v. Sturn, 661 P.2d 615, 617 (Alaska 1983) (interpreting offer of judgment 
in light of surrounding circumstances). 

                                                  -14-                                               6579 

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

Miller was entitled to an offset for Handle's recovery from VP, and remand for entry of 

judgment in Miller's favor.  For these reasons, I respectfully dissent. 

                                           -15-                                     6579
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