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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dearlove v. Campbell (7/13/2012) sp-6689

Dearlove v. Campbell (7/13/2012) sp-6689

        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  


KAREN DEARLOVE,                                    ) 

                                                   )    Supreme Court Nos. S-13772/13792 

                        Appellant and              ) 

                        Cross-Appellee,            )    Superior Court No. 3AN-08-08623 CI 


        v.                                         )    O P I N I O N 


PATRICIA CAMPBELL,                                 )    No. 6689 - July 13, 2012 


                        Appellee and               ) 

                        Cross-Appellant.           ) 


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Eric A. Aarseth, Judge. 

                Appearances:       Gregory      R.  Henrikson,    Walker     &  Eakes, 

                Anchorage, for Appellant and Cross-Appellee.             Michael W. 

                Flanigan, Walther & Flanigan, Anchorage, for Appellee and 


                Before:      Carpeneti,     Chief   Justice,   Fabe,    Winfree,    and 

                Stowers, Justices.     [Christen, Justice, not participating.] 

                WINFREE, Justice. 


                The passenger of a car was injured in a two-car accident.             The passenger 

brought suit against the other car's driver; the passenger's requested recovery included 

her insurer's subrogation claim for medical expenses.   The driver made an early offer of 

judgment, which the passenger rejected.           The driver then paid the subrogation claim, 

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thereby removing it from the passenger's expected recovery.   The driver made a second 

offer of judgment, which the passenger rejected, and the case proceeded to trial.                 After 

trial the jury awarded the passenger damages and both parties claimed prevailing party 

status; the driver sought attorney's fees under Alaska Civil Rule 68.  The superior court 

ruled the first offer of judgment did not entitle the driver to Rule 68 fees, but the second 

offer did.     Both parties appeal, arguing the superior court improperly considered the 

subrogation claim in its Rule 68 rulings.          We conclude the subrogation payment had to 

be taken into account when evaluating the first offer of judgment, but not the second 

offer of judgment; we therefore affirm the superior court's rulings. 


                Patricia Campbell and Karen Dearlove were in a car accident.                Campbell 

sued Dearlove, alleging the accident was caused by Dearlove's negligence; Dearlove 

denied liability and suggested the accident might be due to malfunctioning brakes.  Both 

parties were insured by a State Farm company:               Campbell by a company licensed in 

Minnesota and Dearlove by a company licensed in Alaska.  Campbell's insurer paid the 

first $20,000 of her medical expenses under her policy's Personal Injury Protection (PIP) 

coverage.    Campbell's insurer therefore had a subrogation claim against Dearlove.1 

                Campbell's insurer never sent her a "Ruggles letter."2              To the contrary, 

Campbell's       insurer   repeatedly     called   Campbell's     attorney    for   progress    reports. 

        1       Subrogation in this context is "[t]he principle under which an insurer that 

has   paid   a   loss   under   an   insurance   policy   is   entitled   to   all   the   rights   and   remedies 

belonging to the insured against a third party with respect to any loss covered by the 

policy."   BLACK 'S LAW  DICTIONARY 1563-64 (9th ed. 2009); see also LEE  R. RUSS  & 

THOMAS F. SEGALLA , 16 COUCH ON INSURANCE  222:2 (3d ed. 1995). 

        2       A  Ruggles  letter   is   one   from   the   insurer   "direct[ing]   its   insured   not   to 

pursue     its  medical   subrogation    claim   as  part   of  the  insured's   lawsuit   against   the 

tortfeasor."  O'Donnell v. Johnson, 209 P.3d 128, 132 (Alaska 2009) (citing Ruggles ex 

rel. Estate of Mayer v. Grow, 984 P.2d 509, 512 (Alaska 1999)). 

                                                  -2-                                               6689 

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Campbell's counsel stated that the insurer "expected [him] to protect [its] subrogation 

interest in PIP benefits paid." 

                Dearlove's first Rule 68 offer of judgment was for $18,000, inclusive of 

prejudgment interest, Rule 82(b)(1) attorney's fees, and Rule 79 costs; it also required 

Campbell   to   satisfy   her   insurer's   outstanding   subrogation   claim.    Campbell   did   not 

accept Dearlove's first offer of judgment. 

                Dearlove was deposed and testified there "weren't any problems with the 

brakes" and the accident was caused by her own negligence.                 Dearlove later formally 

stipulated to liability, leaving damages as the only issue for trial. 

                After Dearlove's deposition her insurer negotiated with Campbell's insurer 

and settled the subrogation claim by direct payment of $20,000 to Campbell's insurer. 

Dearlove then sought a ruling that Campbell could not seek recovery of the $20,000 in 

medical expenses paid by her insurer.          Campbell did not oppose the motion, except to 

request recovery of her attorney's fees and costs on the $20,000 payment.  The superior 

court ruled Campbell could not include the medical expenses in her claim for damages 

at trial, but reserved the question whether Campbell could recover fees and costs on the 

$20,000 payment. 

                Dearlove's      second    Rule   68  offer   of  judgment     was   for  $5,000    plus 

prejudgment interest, Rule 82(b)(1) attorney's fees, and Rule 79 costs.   The offer stated 

Campbell would be "responsible for satisfying any and all accident-related liens and 

expenses   with   the   exception   of   the   [PIP]   Lien   of   $20,000.00   which   [Dearlove   had 

already] satisfied."    Campbell rejected this offer. 

                The case proceeded to trial and the jury was shown an exhibit itemizing 

Campbell's medical expenses.          The expenses covered by Dearlove's insurer's $20,000 

payment to Campbell's insurer appeared in a separate column marked "PAID."  The 

court instructed the jury that "[a] portion of the expenses for [the] medical treatment is 

                                                  -3-                                            6689

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not at issue because it has been paid.   You are not to make an economic award for those 

expenses   that   have   already   been   paid."    The   jury   returned   a   verdict   for   $2,370   in 

economic damages and $1,500 in non-economic damages for a total award of $3,870. 

Both parties claimed prevailing party status and moved for fees. 

                The superior court reasoned Dearlove's first Rule 68 offer would have 

resulted in a net $2,000 loss to Campbell because the offer was for $18,000 lump sum 

and under the offer's terms, Campbell would have been responsible for her insurer's 

$20,000 subrogation claim.  From this, the superior court concluded that Dearlove was 

not entitled to fees under the first Rule 68 offer. 

                The superior court then concluded Dearlove was entitled to Rule 68 fees 

and costs from her second offer.         To compare Campbell's $3,870 recovery at trial with 

the $5,000 second offer of judgment, the court made several preliminary rulings.  First, 

because the second offer added fees, prejudgment interest, and costs to the offer amount 

- as would the jury's verdict - the superior court concluded those "add-ons" did not 

change   the   comparison's   outcome.3        Second,   the   court   did   not   include   the   $20,000 

subrogation payment in Campbell's total recovery when it compared the second offer to 

the verdict, because the subrogation claim had been satisfied before the second offer was 

served.   Third, because the $20,000 payment was not included in Campbell's verdict for 

purposes     of  assessing    the  second    offer,  it   was  not   included   in  the  calculation   of 

prejudgment interest, Rule 82 attorney's fees, and costs that Dearlove owed Campbell 

on the verdict.    Finally, though the court concluded Campbell was entitled to recover a 

proportional share of her own actual attorney's fees and costs incurred in the process of 

recovering the subrogation claim on her insurer's behalf, the court also concluded this 

        3       See generally Andrus v. Lena, 975 P.2d 54, 57 n.3 (Alaska 1999) (citing 

Farnsworth ,      601   P.2d   266,   269   n.4  (Alaska    1979))    (explaining    methodology      for 

comparing offer of judgment to ultimate recovery). 

                                                   -4-                                               6689 

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obligation was owed by Campbell's insurer, not Dearlove.   The court declined to order 

Campbell's insurer to pay its share of Campbell's fees and costs because the insurer was 

not a party to the litigation. 

               Based on these legal rulings, the superior court calculated that Campbell's 

recovery at trial ($3,870 plus "add-ons") was at least five percent less favorable than the 

second offer of judgment ($5,000 plus "add-ons").            Accordingly, the court ruled that 

Dearlove   was   entitled   to   recover   Rule   68   attorney's   fees   and   costs   incurred  after 

Campbell's second offer of judgment. 

               Campbell appeals the superior court's decision regarding Dearlove's second 

offer of judgment.     Dearlove cross-appeals the superior court's decision regarding her 

first offer of judgment. 


               We review de novo whether the superior court correctly applied the law in 

awarding attorney's fees.4     We also exercise our independent judgment in reviewing the 

superior court's interpretation of Civil Rule 68,5  as well as in calculating a judgment's 

value to determine whether it exceeded an offer of judgment.6 


        A.      Subrogation Claims 

               A subrogation claim arises when an insurer compensates its insured for an 

injury caused by a third party and obtains the "right to proceed against [the] third party 

responsible for [the] loss which the insurer has compensated pursuant to its contractual 

        4       Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001). 

        5      Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1087 n.7 (Alaska 

2008) (citing Jackman v. Jewel Lake Villa One , 170 P.3d 173, 177 (Alaska 2007)). 

        6      Power Constructors, Inc. v. Taylor & Hintze , 960 P.2d 20, 34 (Alaska 


                                                -5-                                             6689 

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

obligation under [the] policy."7         An insurer with a subrogation claim "may pursue a 

direct action against the tortfeasor, discount and settle its claim, or determine that the 

claim should not be pursued."8          The insured may include the subrogation claim in the 

insured's own claim against a third-party tortfeasor, unless the insurer objects.9 

                 Here, Campbell's insurer repeatedly indicated that it wanted Campbell to 

pursue recovery of its subrogation claim. The subrogation claim was part of the damages 

Campbell sought from Dearlove at the start of this litigation. 

        B.       Alaska Civil Rule 68 

                 When there is a single defendant, Rule 68(b) provides in relevant part: 

                 If   the   judgment   finally   rendered   by   the   court   is   at   least   5 

                percent less favorable to the offeree than the offer, . . . the 

                 offeree   .   .   .   shall   pay   all   costs   as   allowed   under   the   Civil 

                 Rules and shall pay reasonable actual attorney's fees incurred 

                by the offeror from the date the offer was made[.] 

Rule 68's purpose is to discourage expensive and protracted litigation by encouraging 

settlements,10 with earlier settlement offers entitling the offeror to a greater percentage 

of attorney's fees.11  In practice, the rule encourages parties to assess their litigation risks 

carefully and penalizes rejection of reasonable settlement offers. 

                 C.      Dearlove's First Offer Of Judgment 

                 Dearlove's first offer of judgment was for $18,000 (including add-ons) and 

required Campbell to pay all outstanding medical liens. The superior court reasoned that 

        7        RUSS & SEGALLA , note 1 above,  222:2.

        8       Ruggles ex rel. Estate of Mayer v. Grow , 984 P.2d 509, 512 (Alaska 1999).

        9       Id.

        10      Mackie v. Chizmar , 965 P.2d 1202, 1206 (Alaska 1998) (citing Pratt &

Whitney Can., Inc. v. Sheehan, 852 P.2d 1173, 1182 (Alaska 1993)). 

        11       See Alaska R. Civ. P. 68(b). 

                                                    -6-                                                6689 

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

this offer would have resulted in a $2,000 net loss to Campbell due to her responsibility 

to pay the $20,000 subrogation claim.  Though Campbell received only a modest award 

of $3,870 at trial, the court concluded that Campbell was better off with the jury award 

than she would have been if she had accepted the first settlement offer. 

                Dearlove argues the court erred by considering the $20,000 subrogation 

claim when it assessed the value of her first settlement offer.               She maintains that the 

correct comparison was between the $18,000 offer, standing alone, and the $3,870 award 

(plus add-ons). Although we agree it was error to compare the hypothetical net recovery 

to the jury award, we disagree with Dearlove that the $20,000 payment to Campbell's 

insurer is irrelevant in the comparison.  As we discuss below, the superior court should 

have included Dearlove's payment of the subrogation claim in Campbell's recovery 

before comparing it to the jury award (plus add-ons). 

                For the offeror to obtain attorney's fees under Rule 68 when there is a 

single defendant, the value of the amount recovered must be at least five percent less 

favorable than the offer's value.12  The offer of judgment must not be conditional or joint, 

though it can acknowledge the existence of a lien and require the party accepting the 

offer to pay the lien from the settlement.13        The critical comparison is between the offer 

amount and the ultimate recovery.           We have refused to label an offer as "worthless" 

simply because it was for less than the value of a subrogated lien.14            This recognizes that 

although a party may have incurred significant damages, other factors - such as strong 

defenses to liability - may significantly reduce a claim's settlement value.                 Offers for 

        12      Id . 

        13      Jaso v. McCarthy , 923 P.2d 795, 801-02 (Alaska 1996) (citing Grow v. 

Ruggles , 860 P.2d 1225, 1227-28 (Alaska 1993)). 

        14      Id. 

                                                   -7-                                               6689 

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

less than the value of subrogated liens can serve as the basis for Rule 68 offers of judgment. 

                 But contrary to Dearlove's position, we have held that requiring courts to 

consider      only   the  final  award    is  "an   overly   technical    reading"    of  Rule    68.15  In 

Progressive Corp. v. Peter ex rel. Peter , the defendant made the plaintiffs an offer of 

judgment for $52,501 plus prejudgment interest, costs, and fees. 16  The plaintiffs rejected 

the offer.17    The superior court subsequently ruled on a key liability issue against the 

defendant.18    The defendant then voluntarily paid $75,681.27 - an amount representing 

the   underinsured   motorist   policy   limits   -   into   the   court   registry   for   the   plaintiffs' 

benefit.19   Because the plaintiffs did not recover additional damages and were awarded 

only $8,555 in attorney's fees, the defendant sought Rule 68 fees, claiming "[v]oluntary 

payments and partial settlements are not the benchmark by which offers of judgment 

should be evaluated."20         The superior court disagreed, and   we affirmed the superior 

court's ruling.21    Our decision looked to the total "amount recovered" rather than just the 

amount awarded at trial; we held that the superior court did not err by including the 

insurer's voluntary payment in its calculation of the "judgment finally rendered."22 

        15       Progressive Corp. v. Peter ex rel. Peter , 195 P.3d 1083, 1090 (Alaska 


        16       The offer's total value was $70,312.44.  Id . at 1089. 

        17       Id. at 1086. 

        18       Id. 

        19       Id. 

        20       Id. at 1088 (emphasis in original). 

        21       Id. at 1090. 

        22       Id.  at  1089   ("Because the amount recovered exceeded the amount that 


                                                    -8-                                                 6689 

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                Here the superior court should have included the amount of the subrogation 

claim    recovery     along   with   the  jury's   verdict   when    determining      the  total  amount 

Campbell recovered.  We reach this conclusion because Campbell's insurer specifically 

requested   that   she   include   its   subrogation   claim   in   the   damages   she   pursued   in   her 

lawsuit, and - at the time of the first settlement offer - its subrogation claim was a part 

of Campbell's claim and was included in the first offer as an "accident-related lien[]." 

Under the facts of this case Dearlove's insurer's direct payment to Campbell's insurer 

to satisfy its subrogation claim was a part of Campbell's total recovery, and it should 

have been considered when the superior court compared Campbell's "judgment finally 

rendered" against the first settlement offer. 

                The   consequences   of   interpreting   Rule   68   so   strictly   as   to   allow   only 

consideration of the amount reflected in a final verdict could thwart Rule 68's goals. 

Under Dearlove's reading, voluntary pre-trial payments would not be included when 

assessing a previous Rule 68 offer's success.            But this would permit a party to make a 

Rule    68   offer  knowing     the   opposing    party   is  unlikely   to  accept,   make    voluntary 

payments to remove part of the opposing party's claim from the issues to be presented 

at trial, and then seek Rule 68 attorney's fees and costs based on the amount awarded in 

the final verdict. 

                Indeed, in Progressive we cautioned that abusive settlement tactics could 

result if trial courts were unable to consider partial recoveries expressly included in the 

court's judgment:  "To hold otherwise would be to create a loophole allowing parties to 

either escape or create the punitive measures of an offer of judgment by simply making 

a gratuitous payment prior to the entry of a final judgment.  Such a loophole would 

        22      (...continued) 

would have been paid had the offer been accepted, the amount recovered was necessarily 

not 'at least' five . . . percent 'less favorable' to the [plaintiffs] than the offer." (emphasis 


                                                   -9-                                                6689 

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effectively avoid the rule."23      We further observed that if trial courts could not consider 

voluntary   pre-trial   payments   when   determining   whether   to   award   Rule   68   fees,   the 

"unconditional acceptance of an eve-of-trial payment could trigger an unexpected and 

ruinous penalty."24 

                Rule 68's purpose is served by awarding fees and costs when an offeree 

incorrectly   assesses   a   claim's   value.    It   is   not   intended   to   benefit   an   offeror   who 

unilaterally satisfies a portion of the other party's claim in a way that is not reflected in 

the final verdict.25    As to Dearlove's first offer of judgment, the correct comparison is 

between her $18,000 all-inclusive offer and Campbell's $23,870 recovery - Dearlove's 

$20,000 payment to Campbell's insurer plus the $3,870 Campbell recovered at trial (plus 

add-ons).     Dearlove's   first   offer   was   for   an   amount   less   than   Campbell's   recovery; 

accordingly, Rule 68 fees were not available to Dearlove. 

        D.      Dearlove's Second Offer Of Judgment 

                Dearlove's second   offer of judgment was for $5,000 plus prejudgment 

interest, Rule 79 costs, and Rule 82 attorney's fees. In concluding Dearlove was entitled 

to Rule 68 fees from this offer, the superior court did not consider the $20,000 payment 

because     the   subrogated     claim   had   already    been   satisfied,   was   no   longer   part  of 

Campbell's claim against Dearlove when the second offer was served, and the second 

offer expressly noted the subrogation claim had been resolved.                 The court also did not 

consider   the   value   of   prejudgment   interest,   costs,   or   attorney's   fees   on   the   verdict 

because both the $3,870 verdict and the second offer of judgment included these add-ons 

        23      Id. at 1091 (internal quotation marks omitted). 

        24      Id. at 1092. 

        25      See Mackie v. Chizmar, 965 P.2d 1202, 1205-06 (Alaska 1998) (discussing 

Rule 68's goals, including discouraging expensive and protracted litigation due to parties 

overvaluing their claims). 

                                                  -10-                                                6689 

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

separately; the court decided the add-ons would not make a significant difference in the 

comparison.26      Campbell appeals the court's decision not to include:               (1) the $20,000 

payment; and (2) post-verdict Rule 82 fees and Rule 79 costs on the $20,000 payment 

when it awarded Dearlove Rule 68 fees.             We examine each argument in turn. 

                 The   superior   court   was   correct   not   to   include   the   $20,000   payment   in 

Campbell's total recovery when considering the second offer.                   As stated above, Rule 

68's policy goals are to encourage settlement and avoid protracted litigation.27                   By the 

time the second offer of judgment was served, Campbell's claim had changed because 

Dearlove had settled the insurer's subrogation claim.                Campbell could no longer have 

expected to recover the $20,000 in medical expenses at trial, which she conceded before 

trial, and the question became whether her remaining damages were likely to exceed the 

$5,000 offer of judgment.  The superior court's review of the second offer of judgment 

correctly   focused   on   that   assessment   of   Campbell's   remaining   claims;   Campbell's 

inaccurate assessment of litigation risks and the value of her remaining claims led to a 

recovery less than the offer of judgment. 

                 Campbell      also   argues    the  superior    court   erred   in  failing   to  include 

attorney's   fees   and   costs   on   the   $20,000   payment   when   considering   her   "judgment 

finally rendered."     In essence, Campbell argues that because her insurer did not collect 

costs and attorney's fees in addition to the $20,000, she was still pursuing that portion 

of the subrogation claim.   But because the subrogation claim against Dearlove belonged 

to   Campbell's   insurer,   so     did  the  prejudgment   interest,      costs,   and  attorney's    fees 

        26      See Andrus v. Lena, 975 P.2d 54, 57 n.3 (Alaska 1999) (stating it was not 

necessary to include attorney's fees, costs, and prejudgment interest in Rule 68 analysis 

because   offer   of   judgment   was   for   a   base   value   plus   fees,   costs,   and   prejudgment 


        27      Id. (citing Pratt & Whitney Can., Inc. v. Sheehan , 852 P.2d 1173, 1182 

(Alaska 1993)). 

                                                   -11-                                                6689 

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

associated with that claim against Dearlove.      For its own reasons, Campbell's insurer 

chose to settle its subrogation claim against Dearlove for $20,000.  After that settlement, 

Dearlove had no liability to the insurer, or to Campbell, for any portion of the $20,000 

in medical expenses covered by the subrogation claim or for any associated prejudgment 

interest, costs, or attorney's fees. Accordingly, the superior court did not err in declining 

to consider hypothetical costs and attorney's fees on the $20,000 settlement payment as 

a recovery by Campbell from Dearlove when comparing Campbell's recovery against 

Dearlove's second offer of judgment. 

              We emphasize that (1) there is nothing in the record to suggest collusion 

by the two insurers, and (2) the subrogation claim settlement ultimately did not prejudice 

Campbell in connection with Dearlove's Rule 68 offers of judgment.            Collusion in a 

subrogation claim settlement prejudicing the plaintiff with respect to a previous Rule 68 

offer of judgment likely would require a different analysis.   And even in the absence of 

collusion, a subrogation claim settlement prejudicing the plaintiff-insured with respect 

to a previous Rule 68 offer of judgment may well implicate the first-party insurer's duty 

of good faith and fair dealing towards its insured. We do not need to address these issues 


       E.     Common Fund Analysis 

              Campbell argues that she is entitled to additional attorney's fees and costs 

under the common fund doctrine, contending that Dearlove should also have to pay part 

of   Campbell's    counsel's  contingency    fee  for  the  effort  expended  to  recover  the 

subrogated claim.    We find no support for this argument. 

              The common fund doctrine provides that "a litigant or lawyer who recovers 

a common fund for the benefit of persons other than himself or his client is entitled to a 

                                            -12-                                        6689

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

reasonable attorney's fee from the fund as a whole."28  The doctrine's goal is to prevent 

"persons who obtain the benefit of a lawsuit without contributing to its cost [from being] 

unjustly enriched at the successful litigant's expense."29          In the subrogation context, this 

rule is typically applied so that "[a]ny proceeds recovered [on behalf of the insurer] must 

be   paid   to   the   insurer,   less   [proportional]   costs   and   fees   incurred   by   the   insured   in 

prosecuting and collecting the claim."30          Otherwise, the insurer would take the benefit 

of the insured's premium and the insured's litigation effort.31 

                The   superior   court   recognized   there   was   no   question   that   Campbell's 

insurer benefitted from Campbell's litigation efforts.             But that does not mean Dearlove 

should be responsible for part of Campbell's fee agreement with her attorney under the 

common fund doctrine.   As we held in Sidney v. Allstate, a litigating party is entitled to 

recover a fair share of fees and costs from the beneficiaries of the party's litigation 

efforts.32  In this case, the party who benefitted from Campbell's litigation efforts was 

Campbell's insurer, not Dearlove.   Campbell must look to her insurer, not Dearlove, for 

the costs and attorney's fees attributable to her insurer's recovery of the $20,000. 


                We AFFIRM the superior court's rulings. 

        28      Sidney   v.   Allstate   Ins.   Co.,   187   P.3d   443,   454   (Alaska   2008)   (quoting 

Edwards v. Alaska Pulp Corp. , 920 P.2d 751, 754 (Alaska 1996)). 

        29      Edwards , 920 P.2d at 754 (quoting Boeing Co. v. Van Gemert , 444 U.S. 

472, 478 (1980)). 

        30      Sidney, 187 P.3d at 454 (emphasis omitted) (quoting Ruggles , 984 P.2d at 


        31      Id.   (quoting   Cooper   v.   Argonaut   Ins.   Co.,   556   P.2d   525,   527   (Alaska 


        32      Id. 

                                                   -13-                                               6689 

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