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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pouzanova v. Morton (6/20/2014) sp-6915

Pouzanova v. Morton (6/20/2014) sp-6915

         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  



EKATERINA V. POUZANOVA,                                    )  

                                                           )    Supreme Court No. S-14442  

                            Petitioner,                    )  

                                                           )    Superior Court No. 3AN-10-08545 CI  

         v.                                                )    District Court No. 3AN-08-11802 CI  

                                                              

                                                           )  

KUUIPO T. MORTON,                                          )    O P I N I O N  

                                                           )  

                            Respondent.                    )    No. 6915 - June 20, 2014  

                                                           )  



                  Petition for Hearing from the Superior Court of the State of  

                                                

                  Alaska,  Third  Judicial  District,  Kodiak,  Steve  W.  Cole,  

                  Judge,  on  appeal  from  the  District  Court  for  the  State  of  

                  Alaska, Anchorage, John R. Lohff, Judge.  



                  Appearances:    David  S.  Carter,  Hughes,  Gorski,  Seedorf,  

                  Odsen & Tervooren, LLC, Anchorage, for Petitioner.  Allison  

                  Mendel   and   Laurence   Blakely,   Mendel   &   Associates,  

                  Anchorage, for Respondent.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, and Maassen,  

                                       

                  Justices. [Carpeneti, Justice, not participating.]  

           

                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  This case, arising out of a traffic accident, comes to us on a petition for  

                                             



hearing from a decision of the superior court, acting as the intermediate appellate court  



following a trial in district court. The superior court reversed the district court judgment  

                                                                



and remanded the case for a new trial.  We agree with the superior court that a remand  

                                                                     


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

is in order because certain evidence of domestic violence should have been excluded  

                                                                                                  



under Alaska Evidence Rule 403.  On two other issues, however, we reverse the superior  



court's decision and hold that the district court was correct:  it correctly dismissed the  



plaintiff's punitive damages claim and correctly declined to require that the plaintiff's  



husband be joined as a third-party defendant.  



II.       FACTS AND PROCEEDINGS  



                    On May 26, 2008, Ekaterina Pouzanova drove past a stop sign and into an  

                                                                                               



intersection in Anchorage and was broad-sided by a vehicle driven by Kuuipo Morton.  

                                                                                         



Morton went to the emergency room and was diagnosed with lower back pain and a  

                                                                                                                       



possible compression fracture.  She continued to complain of pain in her back and neck  



in  the  months  that  followed,  and  she  received  some  additional  treatment  for  these  



complaints.  



                   Pouzanova did not contest liability for the accident, but she did dispute the  

                                                                                                          



extent of Morton's injuries. Morton sued in district court for non-economic and punitive  

                                          



damages.  She initially included claims for lost earnings and medical expenses as well  



but dropped them before trial.  The district court dismissed the punitive damages claim  

                                                                                                          



on  summary  judgment,  finding  that  the  evidence  could  not  support  a  finding  of  



recklessness.  



                   During jury selection, Morton challenged three potential jurors for cause.  

                                                                                                        



The court declined to excuse the jurors, and Morton used three of her four peremptory  

                                                                                              



challenges to replace them.  During trial the court allowed testimony about domestic  



violence in Morton's marriage as relevant to her claim for loss of enjoyment of life,  

                                 



including evidence of an incident in which she allegedly threatened her husband with a  

                                                                                                         



hammer.  The jury returned a verdict of $5,000 for past non-economic loss and zero for  

                                                                                                       



future non-economic loss.  Because Morton had earlier rejected an offer of judgment  

                                         



                                                             -2-                                                       6915
  


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

under Civil Rule 68, the  amount of attorney's fees and costs assessed against her more  

                                



than offset the amount of the verdict in her favor.  



                    Morton appealed to the superior court, which vacated the judgment and  

                                                                                                           



remanded the case for a new trial.  The superior court found reversible error  in the  



district court's grant of summary judgment on the punitive damages claim; its refusal to  



grant the challenges for cause during jury selection; its failure to require the joinder of  

                                                                                                            



Morton's husband as a third-party defendant for purposes of allocation of fault; and its  

                                                                                                          



admission of evidence of the domestic violence incident involving the hammer.  



                    Pouzanova filed a petition for hearing, which we granted.  



III.      STANDARDS OF REVIEW  



                    In an appeal from a judgment of a superior court acting as an intermediate  

                                                                                    



court of appeal, we independently review the judgment of the district court.1  

                                                                                                                  



                                                                                                                

                    "We review summary judgment decisions de novo, affirming if there are  



                                                     

no genuine issues of material fact and the moving party is entitled to judgment as a  



                       2                                                                                                    3  

matter of law."    We draw all factual inferences in favor of the non-moving party.    



                                                                                          

                    Although  we  ordinarily  review  the  decision  whether  someone  is  an  



                                                                  4 

                                                                          

indispensable party for an abuse of discretion,  the decision in this case depends upon the 



          1         Smith v. Kofstad         , 206 P.3d 441, 444 (Alaska 2009) (quoting Hallam v.  



Holland Am. Line, Inc. , 27 P.3d 751, 753 (Alaska 2001)).  



          2         Brannon  v.  Cont'l  Cas.  Co. ,  137  P.3d  280,  284  (Alaska  2006)  (citing  



Makarka v. Great Am. Ins. Co. , 14 P.3d 964, 966 (Alaska 2000)).  



          3         Id.  (citing Morgan v. Fortis Benefits Ins. Co. , 107 P.3d 267, 269 (Alaska  

                                                              

2005)).  



          4         Tlingit-Haida Reg'l Elec. Auth. v. State, 15 P.3d 754, 768 n.48 (Alaska  

                                                                     

2001).  



                                                             -3-                                                        6915
  


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

                                                                                   5  

interpretation  of  a  statute,  which  we  decide  de  novo.     A  superior  court's  decision  



whether to admit evidence under Evidence Rule 403 requires it to balance the probative  

                                                                          



value of the evidence against its unfair prejudice; we review this balancing for abuse of  

                                                                                            

discretion.6  

                      



IV.	      DISCUSSION  



                                                                                    

          A.	       The District Court Properly Dismissed The Punitive Damages Claim  

                    On Summary Judgment.  



                                                                      

                    Before  trial,  Pouzanova  moved  for  summary  judgment  on  the  issue  of  



punitive  damages.    The  district  court  granted  the  motion  on  grounds  that  there  was  



insufficient  evidence  that  Pouzanova  had  acted  with  recklessness  rather  than  mere  



negligence.    Awards  of  punitive  damages  require  proof  by  "clear  and  convincing  



                                                                                                    

evidence" that the defendant's conduct "was outrageous, including acts done with malice  



or bad motives," or that it "evidenced reckless indifference to the interest of another  



             7  

                                                               

person."       The superior court reversed the district court's dismissal of the claim, holding  



that the sworn statements of two witnesses, while "very minimal" evidence, were enough  



                                 

to create an issue of fact for the jury as to whether Pouzanova saw the stop sign and  



                                                     

intended to run it.  We do not view these statements as sufficient to distinguish this case  



                                          8 

                                                                                                             

from Hayes v. Xerox Corp. ,  in which we affirmed a grant of summary judgment on a  



punitive  damages  claim.    We  conclude,  therefore,  that  the  district  court  correctly  



dismissed the claim.      



          5         ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.                                 , 322 P.3d  



114, 122 (Alaska 2014).  



          6         Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007).  



          7         AS 09.17.020(b).  



          8         718 P.2d 929, 934-36 (Alaska 1986).  



                                                              -4-	                                                         6915
  


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

                         One of the statements was provided by Pouzanova's passenger, who said,  



"I don't know why or what happened, but she blew right through the stop sign and then                                                            



                                   

we got T-boned. . . .  Oh, it was straight through . . . like there wasn't even a stop sign  



there  or  an  intersection  .  .  .  ."    The  other  statement  was  from  a   driver  who  was  



                                                                                                                   

approaching the intersection behind Pouzanova.  He said, "It looked to me like maybe  



she was trying to jump across to get across the street before the other car came or maybe     



she didn't stop, I'm not sure, like I said, as I pulled up . . . she was already going or     



trying to go across."  



                         Morton  also  contends  that  two  statements  made  by  Pouzanova  herself  



                                                               

support a finding of recklessness.  First, Pouzanova told her insurance company several  



                                                                                                                           

days after the accident, "There was a stop sign, yeah.  The thing is I don't remember  



                                                                                                                    

what exactly happened, but witnesses say that [indiscernible] that I did stop, but I -  



honestly I don't remember."  At her later deposition, Pouzanova denied that she had ever  



                                                                

made a statement to her insurance company about the accident; she also stated that she  



believed that she did not see the stop sign because the sun was in her eyes.  



                                                                                             

                         In Hayes , a case much like this one, we articulated the showing that must  



be made before a plaintiff may recover punitive damages:  



                         [T]he plaintiff must prove that the wrongdoer's conduct was  

                                                                                 

                         outrageous, such as acts done with malice or bad motives or  

                                                                                                        

                         a  reckless  indifference  to  the  interests  of  another.    Actual  

                                                        

                         malice need not be proved.  Conscious action in deliberate  

                         disregard of [others] . . . may provide the necessary state of  

                         mind to justify punitive damages.  If the evidence does not  

                         give   rise  to  an  inference  of  actual  malice  or  conduct  

                         sufficiently  outrageous  to  be  deemed  equivalent  to  actual  



                                                                             -5-                                                                      6915
  


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

                       malice,  then  the  trial  court  need  not  submit  the  issue  of  

                                                                         [9] 

                       punitive damages to the jury.     



                                                                                                               

We noted in Hayes our approval of the Restatement's definition of "reckless disregard  



                                          10 

                                              We adopted the comments' description of recklessness in the  

of the safety of another." 



factual context presented here:                             



                       It is reckless for a driver of an automobile  intentionally to  

                                                                                          

                       cross a through highway in defiance of a stop sign if a stream  

                       of  vehicles  is  seen  to  be  closely  approaching  in  both  

                       directions, but if his failure to stop is due to the fact that he  

                                                                                                                  

                       has permitted his attention to be diverted so that he does not  

                                                                                                           

                       know that he is approaching the crossing, he may be merely  

                                  

                                                                     [11] 

                       negligent and not reckless.                         



The plaintiff in Hayes argued that recklessness was an issue for the jury because there  



                                                                            

was evidence that the defendant was familiar with local streets and traffic signals and that  



                                                                                                                                       

he had failed to "look for traffic as he approached the intersection," to brake, or to "look  



                                                                                        12  

                                                                                            After reviewing this evidence in  

for the traffic signal due to lapse of concentration." 



           9           Id. at 934-35 (citations omitted) (internal quotation marks omitted).  



            10         Id. at 935 n.5.   RESTATEMENT (SECOND) OF TORTS  500 (1964) provides:                           



                       The actor's conduct is in reckless disregard of the safety of  

                       another if he does an act or intentionally fails to do an act       

                       which it is his duty to the other to do, knowing or having             

                       reason to know of facts which would lead a reasonable man  

                       to realize, not only that his conduct creates an unreasonable  

                                                                      

                       risk of physical harm to another, but also that such risk is  

                                                    

                       substantially greater than that which is necessary to make his  

                                                                                                               

                       conduct negligent.  



           11          Hayes , 718 P.2d at 935 (emphasis added) (quoting RESTATEMENT (SECOND)  



OF TORTS  500 cmt. b).  



            12         Id.  



                                                                       -6-                                                                 6915
  


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

light of the Restatement definitions, we concluded that it "did not present genuine issues     



of  material  fact  nor  give  rise  to  an  inference  of  conduct  amounting  to  reckless  

indifference to the rights of others."13  



                                                                                                   

                    Pouzanova contends that in this case,  as  in Hayes , there is insufficient  



                                           

evidence of reckless intent.   Morton counters that unlike the plaintiff's claim in Hayes ,  



which  was  based  on  the  defendant's  failure  to  see  a  stop  light,  her  claim  is  that  



                                                                                                        

Pouzanova  saw  the  stop  sign  and  chose  to  run  it.                      She  argues  that  the  two  witness  



                                                                           

statements and Pouzanova's arguably conflicting recollections raise a genuine issue as  



to whether Pouzanova saw the sign.  



                                                                                       

                    We conclude, however, that the district court did not err when it found that  



this evidence was insufficient to support a finding of recklessness.  The statement of  



Pouzanova's passenger supports only the undisputed proposition that she drove through  



                                                                                            

the stop sign; it says nothing about her state of mind when she did so.  The second  



                                                      

witness, who was coming up behind Pouzanova at the intersection, was in an even worse  



                                                                                 

position to speculate on Pouzanova's intent.  In fact, he testified that she was already  



proceeding into the intersection when he noticed her car ahead of him, and he did not  



even  know  whether  she  had  stopped  at  the  stop  sign.    We  also  do  not  accept  that  



Pouzanova's post-accident statements, in which she first disclaimed any recollection of  



                                                                   

the accident and then speculated that the sun must have been in her eyes, can reasonably  



be construed as admissions that she saw the stop sign at the time.   



                    In  sum,  there  is  no  evidence  of  recklessness  that  would  meaningfully  



                                                                    

distinguish this case from Hayes.  We hold, therefore, that the district court correctly  



granted summary judgment to Pouzanova on Morton's punitive damages claim.  



          13        Id. at 936.  



                                                             -7-                                                            6915  


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

          B.	       The  District  Court  Properly  Declined  To  Require  The  Joinder  Of  

                    Morton's Husband For Purposes Of Allocation Of Fault.  



                    Morton brought a motion in limine before trial that sought, among other  

                                 



things, to exclude any evidence "blaming [Morton's husband] for causing any of Mrs.  



                             

Morton's claimed injury" on grounds that the husband should have been joined as a  



                                                                                                         

third-party defendant pursuant to AS 09.17.080 and Alaska Civil Rules 14 and 16.  The  



trial court denied that aspect of the motion.  At trial, both Morton and her husband  



testified about violence in their marriage.  Pouzanova argued that these incidents of  



                                                 

domestic violence were relevant to Morton's claim for loss of enjoyment of life, and that  



                                                                                                               

some  or  all  of  Morton's  non-economic  loss  was  due  not  to  the  accident  but  to  her  



                                                                                                         

domestic situation.  On appeal, the superior court ruled that the district court had erred  



                                                                                                                

in "allowing plaintiff's husband to be blamed for plaintiff's injuries without him being  



joined  as  a  party  to  the  lawsuit."    Pouzanova  contends  that  the  superior  court  



misinterpreted  the  governing  statutes;  Morton  appears  to  concede  that  the  superior  



court's analysis was flawed.  



                    Under AS 09.17.080, a jury may not allocate fault to a third party unless  



                         

that third  party  has been joined as a defendant, with certain exceptions not relevant  

        14  "Fault" is statutorily defined to include "acts or omissions that are in any measure  

here.        



negligent, reckless, or intentional toward the person or property of the actor or others,  

                                  

or that subject a person to strict tort liability."15  Although the definition of "fault" is thus  

                                                                                         



expansive, we agree with Pouzanova that the requirement of joinder is limited to those  

                                                                                          



who are arguably at fault for damages caused by the incident at issue in the action.  



          14        AS 09.17.080(a).  



          15        AS 09.17.900.  



                                                             -8-                                                          6915  


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

                    Subsection  (a)(1)  of  section  .080  requires  the   jury,  "[i]n  all  actions  



involving fault of more than one person," to first find "the amount of damages each  



                                                                                                                 16  

claimant would be entitled to recover if contributory fault is disregarded."                                         In other  



                           

words, the jury's first task in deciding on the damages aspect of a verdict is to determine  



the totality of the damages suffered by the plaintiff and attributable to the incident at  



                                                                          

issue.  Subsection (a)(2) requires the jury to then determine "the percentage of the total  



                                                                          

fault that is allocated to each claimant, defendant, third-party defendant, person who has  

                                                                                                                       17  The  

been released from liability, or other person responsible for the damages . . . ." 



allocation of fault under subsection (a)(2) is thus for purposes of determining liability for  

                            



those damages that the claimant "would be entitled to recover" under subsection (a)(1).  

                                                 



That is, it is only fault for the incident at issue that is being allocated among potentially  

                                                                      



responsible parties.  Pouzanova's challenge here was to the amount of damages  Morton  

                                                                                                                      



"would be entitled to recover" under subsection (a)(1).  Pouzanova was not contending  

                                                                                   



that Morton's husband was responsible for damages that Morton would otherwise be  

                                                                                                    



"entitled to recover" in the action; she was contending that Morton was not "entitled to  



                                                                                                    

recover" those damages at all, because they had not been caused by the incident that was  



the subject of Morton's complaint.  



                                                                   

                    The only damages Morton was seeking in this action were those caused by  



                                         

the   automobile   accident,   for   which   Pouzanova   conceded   liability.      Under   the  



                                                                  

circumstances, the district court was correct in ruling that Morton's husband did not have  



to be joined as a third-party defendant.  



          16        AS 09.17.080(a)(1).  



          17        AS 09.17.080(a)(2) (emphasis added).  



                                                              -9-                                                            6915  


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

          C.	      The District Court, On Remand, Should Exclude Evidence Of The  

                   Hammer Incident Under Evidence Rule 403.  



                   Finally, Pouzanova takes issue with the superior court's decision that the  

                                                                             



district court erred in allowing brief testimony about an incident of domestic violence in  

                               



which Morton allegedly threatened her husband with a hammer.  The superior court  



found  no  abuse  of  discretion  in  the  district  court's  admission  of  other  evidence  of  



                                                                                                

domestic violence, explaining that it was relevant to Morton's claim for damages for loss  



                     

of enjoyment of life.  The superior court found, however, that evidence of the hammer  



                                                                                              

incident should have been excluded for two reasons:  (1) it was not given enough context  



to make it relevant, and (2) it was more prejudicial than probative.   We agree.  



                   Evidence  Rule  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."  "Evidence properly excludable as  



'cumulative'  falls  into  two  categories[:]  .  .  .  evidence  supporting  an  uncontested  or  

                                                                                                                  18  The  

established fact [and] . . . evidence repeating a point made by previous evidence." 



latter category of cumulative evidence should be excluded only with caution, since it by  

                                                                      



definition concerns a disputed point, and "repetition of the same evidence on a disputed  

                                                                               

point by several witnesses is often persuasive in establishing the truth of that evidence."19  

                                         



                   We do not need to decide in this case whether the general evidence of  



domestic violence was relevant to Morton's claim for damages for loss of enjoyment of  

                            



          18       Wasserman v. Bartholomew, 923 P.2d 806, 813 (Alaska 1996) (citations  



omitted).  



          19       Id. n.22 (citing 6 JOHN H.W           IGMORE, EVIDENCE  1908, at 760 (Chadbourne  



Rev. 1976)).  



                                                          -10-	                                                        6915  


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

                                                                                                              20 

                                                                               

life, as it is only evidence of the hammer incident that is before us on appeal.                                  Evidence  



of the hammer incident is problematic.  First, as the superior court noted, although the  



                                                                                                  

defense argued that Morton's ability to wield a hammer was proof of her recovery from  



her accident-related injuries, the testimony about when the hammer incident occurred  



                                                  

was too vague to allow the jury to make that connection.  And even if this temporal  



deficiency could be cured on remand, the evidence is still more unfairly prejudicial than  



probative.  The evidence was cumulative in both senses of the term:  it was undisputed  



                                                                                                      

that there was domestic violence in the Mortons' marriage, and this point had already  



been made repeatedly in other testimony.  The probative value of the hammer incident  



was therefore meager, while its prejudicial effect was likely high.   



                                                                                                               

                    Morton asks us to require the exclusion of "the majority of the evidence of  



                                   

domestic violence and its criminal aftermath."  The only evidentiary issue on appeal,  



                                                                                                      21 

                                                                                                          But we assume  

however, relates to the hammer incident, and that is all we decide here. 



that if other evidence of domestic violence is offered at trial on remand and a proper  



objection  is  made,  the  trial  court  will  approach  the  balancing  process  of  Evidence  



          20        See Liimatta v. Vest, 45 P.3d 310, 314 (Alaska 2004) ("[A] jury assigned  



the responsibility of determining the value of a loss of enjoyment of life should have had  

                                                                               

the opportunity to consider evidence that [a plaintiff's] mental and physical functions,  

                                          

customary activities and capacity to enjoy the pleasures of life were already restricted by  

                               

a long-term addiction to drugs." (quoting Ocasio v. Amtrak, 690 A.2d 682, 684-85 (N.J.  

    

Super. App. Div. 1997)) (internal quotation marks omitted)).  We see major distinctions  

                                                                           

between domestic violence and the drug addiction at issue in Ocasio but do not need to  

                                                                               

discuss them further here.  



          21        See  Schofield  v.  City  of  St.  Paul,  238  P.3d  603,  608  (Alaska  2010)  



                                               

(declining to review additional alleged evidentiary issues when remanding for new trial  

                                                                              

"[b]ecause it is unknown what specific evidence will be introduced on remand and what  

objections might be raised").  



                                                            -11-                                                        6915
  


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

Rule 403 with care, particularly in light of its earlier determination that the evidence has  



only "minimal relevance."  



                   V.       CONCLUSION  



                   We REVERSE the superior court's decision on appeal on the issues of  



                                                                      

punitive damages and the allocation of fault.  We AFFIRM the superior court's decision  



                                                                                             

on appeal on the admissibility of evidence of the hammer incident and REMAND to the  

district court for a new trial in conformance with this opinion.22  



          22       Because we are reversing on evidentiary grounds, we do not reach the issue  



whether the district court erred when it failed to grant Morton's challenges for cause  of  

                                                                                                                       

three  jurors,  who  Morton  argues  were  not  properly  rehabilitated  after  expressing  

skepticism about claims like Morton's.  We do note the requirement of our prior cases  

                                                          

that the rehabilitation of a juror who is challenged for cause must include an individual  

examination as to whether the juror "will be fair, impartial and follow instructions."  See  

Joseph v. State , 26 P.3d 459, 463 (Alaska 2001) (holding that Alaska Civil Rule 47(c)  

                                                                                   

"implicitly requires the court to examine a prospective juror individually before deciding  

whether to grant a challenge [for cause]"); Sirotiak v. H.C. Price Co., 758 P.2d 1271,  

                                                                              

 1277 (Alaska 1988) ("All that is required of a prospective juror is a good faith statement  

                                                                                  

that he or she will be fair, impartial and follow instructions.").    



                                                          -12-                                                        6915  

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