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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Patterson v. GEICO General Insurance Company (4/3/2015) sp-6994

Patterson v. GEICO General Insurance Company (4/3/2015) sp-6994

         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  

                                                                                        

         corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



TOMMIE PATTERSON,                                       )  

                                                        )         Supreme Court No. S-15265  

                            Appellant,                  )  

                                                        )         Superior Court No. 3AN-11-12087 CI  

         v.                                             )  

                                                        )         O P I N I O N  

GEICO GENERAL INSURANCE                                 )  

COMPANY,                                                )          No. 6994 - April 3, 2015     

                                                        )
  

                            Appellee.                   )
  

                                                        )
  



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

                               

                   Judicial District, Anchorage, John Suddock, Judge.  



                   Appearances:          Tommie         Patterson,       pro    se,    Anchorage,  

                   Appellant.    Kimberlee  A.  Colbo,  Hughes  Gorski  Seedorf  

                   Odsen & Tervooren, LLC, Anchorage, for Appellee.   



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

                                

                   Bolger, Justices.  



                   BOLGER, Justice.  



I.       INTRODUCTION  



                   A driver injured in a hit-and-run accident sued his car insurance company,  

                                

                                                                              



claiming it had breached his insurance contract by failing to reasonably compensate him  

                                                                                                     



for  his  injuries.    He  later  moved  to  amend  his  complaint  to  include  racketeering,  

                                                       



embezzlement, mail fraud, and bad faith claims, but the superior court denied the motion.  

                                                                                                  


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

                                                                      

A jury trial was held, and the jury returned a liability verdict that was smaller than the  



insurance company's offer of judgment.  The superior court ruled that the insurance  



company was the prevailing party and awarded attorney's fees and costs.  The driver  



                                                                                                               

appeals the denial of his motion to amend, the awarding of attorney's fees and costs, and  



                                                                                               

several of the court's other procedural and evidentiary rulings.  Because we see no abuse  



of discretion in the court's rulings, we affirm the judgment.  



II.       FACTS AND PROCEEDINGS  



                                                        

                    Tommie Patterson was injured in a hit-and-run accident in December 2009.  



                                                                                  

The front driver's side door of Patterson's SUV was visibly damaged by the collision,  



                                                                         

and Patterson complained of neck and shoulder pain to an examining physician.  At the  



time of the accident, Patterson held a GEICO General Insurance Company (GEICO)  



                                                                                    

automobile insurance policy that contained a provision for uninsured motorist coverage.  



                    Patterson and GEICO disputed the severity of Patterson's injuries sustained  



                                                                                                           

in the December accident.  Patterson, initially represented by counsel, filed a complaint  



                                        

against  GEICO  alleging  breach  of  the  insurance  contract.    He  claimed  that  he  had  



                                                                                       

"incurred medical expenses, travel expenses and general damages" for which "GEICO  



                                                                            

has refused to offer . . . a reasonable amount."   In its answer, GEICO admitted that  



                                                                         

Patterson had a GEICO insurance policy, that he had reported a hit-and-run accident, and  



                                                                               

that he "may be entitled to some uninsured motorist benefits under [his] coverage."  But  



GEICO also raised affirmative defenses, asserting that Patterson's "injuries . . . may be  



                                                                  

the result of a pre-existing or subsequently occurring condition," and that Patterson "is  



                                      

not  entitled  to  recover  medical  expenses  paid  under  his  own  Medical  Payments  



Coverage."  



                                       

                    Patterson's attorney moved to withdraw for cause.  The attorney explained:  



                                                                  

                    [Patterson]         has   refused         to   take   my        advice   regarding  

                                                                              

                    resolution of this matter and I feel that I have done everything  



                                                               -2-                                                         6994
  


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

                       

                    I can to explain to him that even though he has [$1,000,000]  

                                                                                                

                    worth of coverage, he does not have a [$1,000,000] case and  

                    I will not present that as an offer to settle.  



Patterson consented to the attorney's withdrawal and notified the court that he intended  



to  proceed  pro  se.    He  acknowledged  that  disagreements  with  his  attorney  over  the  



available damages had led to the attorney's withdrawal.  



                    GEICO moved for an order in limine to manage the case as a personal  



injury dispute, to prevent both parties from presenting evidence or arguments about  



                                                                                                 

Patterson's policy limits, and to notify Patterson that his medical records - including  



                               

his medical history from before and after the accident - might be admissible.  The  



superior court granted GEICO's motion.  



                    Patterson  then  moved  to  amend  his  complaint  to  include  new  claims,  



alleging racketeering, embezzlement, mail fraud, and bad faith.  He claimed that GEICO  



                                           

refused to honor its contract with him and was thereby committing " '[f]raud' by selling  



                                                                       

insurance policies[] knowing very well that the policies were not going to be honored."  



                                                                      

The court denied Patterson's motion to amend, finding it both untimely and futile.  The  



                                                              

court concluded:  "Mr. Patterson makes no evidentiary showing to justify a late-filed  



[racketeering]  claim.    His  pleadings  reveal  [a]  lack  of  understanding  about  Geico's  



contract obligations.  Amendment would be futile[.]"  



                         

                    At a pretrial status hearing, the court advised Patterson that he was not  



                                                                                         

entitled to $1,000,000 for his injuries and suggested that he might be acting against his  



                                                                                                       

own interests by taking the case to trial.  Patterson replied that he was only asking for a  



"fair"  sum  and  that  he  was  unwilling  to  settle  for  the  amount  GEICO  had  offered.  



                                                                                                                  

GEICO's  counsel  informed  the  court  that  Patterson's  offers  of  judgment  were  for  



                                                                      

$800,000 and $1,000,000, and he indicated that a jury trial remained necessary to resolve  



the parties' dispute.  



                                                              -3-                                                       6994
  


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

                    In December GEICO perpetuated the testimony of its expert witness, Dr.  

                                                                                               



Douglas Bald, by deposing him with Patterson present.  Dr. Bald testified that, after  

                                                                                                        



reviewing Patterson's medical records, he believed the accident had caused "very minor  

                                                



muscular  type  injuries  to  [Patterson's]  neck,  upper  back,  [and]  chest  area"  and  that  



Patterson "had effectively recovered from the injuries . . . as of approximately January   



12, 2010, which would be a little over a month post-accident."  Dr. Bald also opined that  



                                                                                    

many of Patterson's claimed injuries - most notably his lower back pain - were the  



result of preexisting conditions.  



                    Patterson objected to Dr. Bald's qualifications, and on cross-examination  



                                                                                                                   

he questioned Dr. Bald about four malpractice claims that had been filed against him  



                                                                                                            

over  the  course  of  his  career.    Dr.  Bald  acknowledged  that  he  had  settled  a  single,  



                                                                          

legitimate malpractice claim against him, but he testified that the remaining three claims  



        

had been dismissed.  Patterson also suggested that there might have been errors in the  



medical  records  upon  which  Dr.  Bald  relied.    Dr.  Bald  acknowledged  that  doctors  



                                                                                                        

occasionally fail to note reported symptoms in medical records. But he also testified that  



                                                                                                       

he had relied on multiple records and that December 2009 records consistently did not  



include references to Patterson's claimed lower back pain.  



                                                                      

                    Fifteen days before the trial was set to begin, Patterson moved to disqualify  



                                                                                

the trial judge.  Patterson argued that the judge was biased and prejudiced against him.  



The  superior  court  denied  the  motion  to  disqualify  and  the  matter  was  assigned  to  



                                                                                                                

another superior court judge for review, as required by AS 22.20.020(c). The reviewing  



court found no basis for Patterson's claims.  



                                 

                    During  the  week  before  trial,  the  superior  court  ordered  a  pretrial  



                                                                        

conference to determine whether Patterson was willing to follow the court's orders while  



in the presence of the jury.  The court was concerned about statements in Patterson's trial  



                                                                                                          

brief asserting "a [F]irst [A]mendment right to speak and present all issues . . . on any  



                                                                -4-                                                         6994
  


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

                                                                                                     

subject[] matter pertaining to Geico's embezzlement, fraud[], [and] refusal to honor [the]  



                                                                        

insurance policy[] limits of their contract."  At the hearing the court reiterated that the  



                                                                                                

case would be tried only as a personal injury dispute.  The court also informed Patterson  



that  it  would  dismiss  the  suit  unless  Patterson  unambiguously  agreed  to  follow  the  



court's  orders and limit his evidence and arguments to the only relevant issue:  the  



severity of Patterson's accident-related injuries.  Patterson eventually agreed, and the  



court ruled that his agreement was sufficient assurance to allow the trial to proceed.  



                                                                                                                     

                    The superior court held a jury trial.  Patterson declined to testify, and chose  



                                                                                

to rely exclusively on his evidentiary exhibits and the videotaped deposition of Dr. Bald.  



During  Patterson's  opening  statement,  the  court  sustained  multiple  objections  when  



                                                                                                                            

Patterson attempted to discuss facts outside his exhibits and Dr. Bald's deposition.  And  



                                                

when Patterson tried to tell the jury that there were subjects he had been instructed not  



to discuss, the court ordered him to stop talking and sit down.  During GEICO's opening  



statement, Patterson objected when his prior medical history was mentioned, but the  



court overruled this objection.  



                                                                    

                    Patterson then introduced and played Dr. Bald's videotaped deposition,  



                                                                                    

which  was  edited  to  exclude  portions  the  court  had  previously  ruled  inadmissible.  



                                         

Following the playback of the deposition and out of the jury's presence, Patterson rested  



his  case,  and  GEICO  moved  for  a  directed  verdict  on  Patterson's  claim  for  future  



                                                    

noneconomic damages.  GEICO  argued that the evidence Patterson presented - his  



                                                                                  

medical records, which extended only through early 2010, and Dr. Bald's deposition  



                                                                                         

testimony - provided no factual basis for these damages.  The court granted GEICO's  



motion  and  noted  that  Patterson  could  have  avoided  this  partial  directed  verdict  by  



testifying.  



                                                             

                    The jury then returned for closing arguments.  During Patterson's closing  



                                                                                                     

argument, the court sustained all seven of GEICO's objections - most of which were  



                                                               -5-                                                         6994
  


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

for stating facts not in evidence - and ultimately ordered Patterson to end his argument  



before his time had expired.   During GEICO's closing argument, the court overruled  

                                           



Patterson's  objection  that  GEICO  should  not  have  been  permitted  to  recommend  a  



specific pain and suffering award.  And throughout Patterson's rebuttal argument, the  

                                                  



court sustained additional objections when Patterson expressed his disagreement with the  



court's evidentiary rulings, mentioned his insurance policy's $1,000,000 coverage limit,               



and  suggested  that  the  outcome  of  his  case  would  personally  affect  the  individual  



                                                        

members of the jury.  After this final objection, the court again ordered Patterson to  



"have a seat."  



                   The  jury  deliberated  for  less  than  two  hours  before  returning  a  verdict  



                                                                                                    

finding GEICO liable for $5,000 in past noneconomic damages and $10,000 in past  



medical expenses.  



                   Patterson moved for a new trial and relief from judgment under Alaska  



                                                                                                               

Civil Rules 59(d) and 60(b), alleging that his right to an impartial judge and jury had  



been violated.  The superior court denied Patterson's motion.  



                                                                                                   

                   GEICO moved for a verdict reduction to reflect medical expenses already  



                                                                             

paid on Patterson's behalf, for entry of final judgment and recognition as the prevailing  



party, and for attorney's fees and costs under Alaska Civil Rule 68.  The superior court  



granted these motions.  The court subtracted $5,000 from the jury's verdict to reflect  



                                                                    

already-reimbursed  medical  expenses,  added  $1,386  for  prejudgment  interest,  and  



deducted $6,742 for GEICO's attorney's fees and $3,087.25 for GEICO's costs.  The  



court issued a final net judgment of $1,556.75 in favor of Patterson.  



                   Patterson appeals.  



                                                           -6-                                                     6994
  


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

III.      STANDARD OF REVIEW  



                                       

                    We  review  the  denial  of  a  motion  to  amend  a  pleading  for  abuse  of  



                1  

                     "It  is  within  a  trial  court's  discretion  to  deny  such  a  motion  where  

discretion.                                                                                            



amendment  would  be  futile  because  it  advances  a  claim  or  defense  that  is  legally  

                                                                                              



insufficient on its face.  We use our independent judgment to review a conclusion that  

                        

an amendment meets that description."2  



                    "We review the rejection of a motion to disqualify for abuse of discretion."3  

                                                          



We also review the superior court's application of the evidence rules - including the  



                                                                            4  

                                                                                     

court's sua sponte rulings - for abuse of discretion.                         But "[e]rror may not be predicated  



                                                                                        

upon a ruling which admits or excludes evidence unless a substantial right of the party  

                  5  And unless the superior court committed plain error, we review evidentiary  

is affected."                                                   

rulings only when a party preserves the issue through an objection or an offer of proof.6  

                                                      

                    "Constitutional issues are questions of law subject to independent review."7  



We also independently review jury instructions and special verdict forms.8   But before  

                                                                                                                



          1         Krause v. Matanuska-Susitna Borough , 229 P.3d 168, 174 (Alaska 2010).     



          2         Id. at 174-75 (quoting Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 287  



(Alaska 2004)) (internal quotation marks omitted).  



          3         Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002).  



          4         See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996).  



          5         Alaska R. Evid. 103(a).  



          6         Alaska R. Evid. 103(a), (d).  



          7         Harrod v. State, Dep't of Revenue , 255 P.3d 991, 995 (Alaska 2011) (citing  

                                                                                            

Eagle v. State, Dep't of Revenue , 153 P.3d 976, 978 (Alaska 2007)).  



          8         Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Cummins,  

                                                                                              

                                                                                                            (continued...)  



                                                              -7-                                                        6994
  


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

                                

we will "overturn a jury instruction or special verdict form, we must conclude not only  



                                                                                                          

that the instruction or special verdict form was legally erroneous, but also that the verdict  



                                                                                   9  

                                                                                                                           

would probably have been different but for the error."                                "Questions concerning an offer  



                                      

of judgment's meaning and whether the offer complies with Rule 68 raise issues of law,  

which we review independently."10  



IV.	      DISCUSSION  



                     Patterson does not contest the jury's factual findings that he suffered $5,000  



in past noneconomic damages and $10,000 in medical expenses.  Instead, he claims that  



the superior court abused its discretion and violated his constitutional rights by ruling  



against  him  on  various  motions  throughout  the  proceedings.    We  review  each  of  

Patterson's arguments in turn.11  



                                                                  

          A.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                     Patterson's Motion To Amend His Complaint.  



                     Patterson argues that the superior court should have allowed him to amend  



                           

his complaint to include racketeering, embezzlement, mail fraud, and bad faith claims.  



          8(...continued)  



Inc. v. Nelson , 115 P.3d 536, 541 (Alaska 2005)).  



          9	         Id. (citing Reich v. Cominco Alaska, Inc. , 56 P.3d 18, 25 (Alaska 2002)).  



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



           11        In addition to the arguments discussed below, Patterson claims the superior     



court abused its discretion by denying his motion for a new trial in light of his allegation   

that several jurors lied during voir dire.  But it was reasonable for the court to deny this                

motion,  because  Patterson's  jury  misconduct  allegation  was  conclusory  and  lacked  

evidentiary support.  Although Patterson presents this court with documents that he  

                                                                                 

claims  reveal  inaccuracies  in  several  jurors'  statements,  the  documents  were  never  

presented to the superior court, have not been authenticated, and are not included in the  

                                                          

record.  We therefore decline to consider them.  



                                                                 -8-	                                                         6994
  


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

Patterson contends that the superior court, by denying his motion to amend, abused its  

                                                                                             



discretion under Alaska Civil Rule 15.  



                                                                                          

                      Under Rule 15, if a responsive pleading has been served and the action has  



                                                                                                                            

been set for trial, a party may amend his pleading "only by leave of court or by written  



                                                          

consent  of  the  adverse  party."                        But  "leave  shall  be  freely  given  when  justice  so  



                 12  

requires."           In deciding whether the superior court has abused its discretion by denying  



a motion to amend, we balance "the possible prejudice to [the nonmoving party] in                                                 



                                                                                                                            

defending [the new] claims with the potential harm caused to [the moving party] if he is  

                                                                 13  We have recognized several reasons to uphold  

precluded from litigating these issues."                                                                



such a denial, including "undue delay, bad faith or dilatory motive on the part of the  



                                          

movant, repeated failure to cure deficiencies by amendments previously allowed, undue  



                  

prejudice to the opposing party by virtue of allowance of the amendment, futility of the  

amendment, etc."14  But even an unreasonable delay in moving to amend pleadings does  



not justify denying the motion absent prejudice to the nonmoving party.15  



                      Here the superior court gave two reasons for denying Patterson's motion  



to amend his complaint:  untimeliness and futility.  The court noted that, at the time of  

                                                                                               



the motion, the trial was "set to occur in two months."  The court also concluded that  

                                                       



Patterson made "no evidentiary showing to justify a late-filed [racketeering] claim.  His  

                                                                     



pleadings reveal [a] lack of understanding about Geico's contract obligations."  At a  

                                                                                                   



status hearing held soon after the denial of the motion, the court elaborated further:  



           12         Alaska R. Civ. P. 15.
  



           13
        Miller v. Safeway, Inc. , 102 P.3d 282, 288 (Alaska 2004).  



           14         Id. at 294 (quoting Betz v. Chena Hot Springs Grp.                                    , 742 P.2d 1346, 1348  



(Alaska 1987)) (internal quotation marks omitted).  



           15         Id.  



                                                                      -9-                                                               6994
  


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

                             I denied [your motion] because you didn't show me  

                    any  .  .  .  color[able]  basis.  .  .  .    You  had  to  show  me  that  

                                                                            

                    GEICO  did  something  that  was  legally  unreasonable  that  

                   would  amount  to  bad  faith.    You  had  to  show  me  some  

                    evidence of that, and . . . you did not[.] . . .  [T]he essence of  

                                                                                             

                   your      beef     was      that    GEICO         wasn't       paying       you     an  

                    astronomical amount of money. . . .  



                             .  .  .  [T]here's  no  evidence  you've  presented  or  

                                      

                    argument  .  .  .  in  your  motion  that  can  tell  me  .  .  .  what  

                                               

                    [you're] saying they did wrong. . . .  [I]f I look at it and I say,  

                                                                         

                    "The gentleman doesn't understand the law [and] there's no  

                                                                                     

                   way a jury can get there based on what he says," I'm going  

                                           

                   to deny that amendment to you or anybody else.  



                    We do not need to determine whether the superior court's untimeliness  



finding was erroneous, or whether that finding was sufficient to justify the denial of  

                                    



Patterson's motion to amend.  The futility of Patterson's proposed claims provides an  

                                                                    



                                                              16  

independent basis for denying the motion.  

                                                                  Patterson presented no factual allegations  



that  could  support  his  new  claims,  which  were  all  predicated  on  his  apparent  



                             

understanding that GEICO was required to pay him his $1,000,000 policy limit in the  



                                  

event of an accident.   Patterson claimed at a pre-trial hearing that the superior court  



misinterpreted  the  legal  theory  behind  his  proposed  claims,  but  he  provided  no  



          16       See Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 177 (Alaska  



2010) ("We consider with independent judgment whether a proposed amended complaint  

could survive dismissal; if we conclude that it could not, we will hold that the superior  

                                                            

court did not abuse its discretion by denying the motion for leave to amend."); see also  

Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 283, 287-88 (Alaska 2004) (affirming  

                                                                      

denial of motion to amend because amended complaint's claims were preempted by  

federal law); Taylor v. Johnson, 985 P.2d 460, 464-66 (Alaska 1999) (affirming denial  

                               

of motion to amend where plaintiff could not establish a tort claim).  



                                                            -10-                                                       6994
  


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

                                                                                          17  

alternative  legal  or  factual  grounds  to  support  these  claims.                           Most  importantly,  



Patterson  at  no  point  alleged  that  his  medical  costs  or  pain  and  suffering  damages  



approached a sum anywhere near the $800,000 and $1,000,000 settlement offers he made  



to GEICO.  



                                 

                   Because we agree with the superior court that Patterson's proposed new  



                                                                                            

claims were futile, we conclude that the court did not abuse its discretion by denying  



Patterson's motion to amend.  



          B.	      The  Reviewing  Court  Did  Not  Abuse  Its  Discretion  By  Denying  

                   Patterson's Motion To Disqualify The Trial Judge.  



                                                                                                    

                   About two weeks before the trial was originally set to begin, Patterson  



                                                   

moved to disqualify the trial judge.  Patterson supported his motion for disqualification  



                      

by noting that the judge had granted summary judgment against him in a separate case  



                                                                                                

and had ruled against him on evidentiary motions in the present dispute.  Patterson  



further alleged a wide-ranging conspiracy of trial fixing and attempted murder carried  



out by the judge, GEICO, five other judges, and three other companies.  



                                                                                                         

                   The superior court denied Patterson's motion, and the matter was assigned  



                                                           18  

to another superior court judge for review.                    The reviewing court affirmed the denial of  



                                                                      

Patterson's motion, concluding that there was no evidence of bias or prejudice in the trial  



judge's evidentiary rulings nor "any basis for Mr. Patterson's multiple judge conspiracy  



theories."  The court noted that "[g]eneral dissatisfaction with a judge's ruling is not a  



          17       Immediately  after  Patterson   claimed  he  was  not  asking  GEICO  for  



$1,000,000, GEICO's attorney informed the court that, before the hearing, Patterson had   

made "an offer of judgment for $800,000. . . .  It was $1,000,000 before, but now it's  

$800,000."  Patterson did not contest this characterization of his settlement offers.  



          18       See  AS  22.20.020(c)  ("If  a  judicial  officer  denies  disqualification  the  



question shall be heard and determined by another judge assigned for the purpose by the  

presiding judge of the next higher level of courts . . . .").  



                                                          -11-	                                                    6994
  


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

                                                                                                    

ground for recusal or disqualification. . . .  Similarly, personal bias or prejudice does not  



                                                                                            

exist simply because a judge previously presided over a case involving the same party."  



                                                                               

                    Patterson argues that the denial of his motion to disqualify the trial judge  



                                                                                                               

was an abuse of discretion.  He supports this argument with a number of claims, some  



                                                                      19  

                                                                          We review previously unraised issues  

of which he asserts for the first time on appeal.  



                                                                                                                

only for plain error, which "exists where an obvious mistake has  been  made which  



                                                                                20  

                                                                                    Because we perceive no plain  

creates a high likelihood that injustice has resulted."                                                 

error,21 we limit our review to Patterson's original claims.  



                    The reviewing court did not abuse its discretion by denying Patterson's  



motion to disqualify.  "There is no rule requiring recusal or disqualification of a judge  



          19        Specifically, Patterson claims for the first time on appeal that the trial judge           



was biased against African-American men, was prejudiced against pro se litigants, acted             

as an "advocate" for GEICO, and engaged in ex parte communications with GEICO's  

attorney.  



          20  

                                                                                

                    See Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013) (quoting Paula  

                                                    

E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 276 P.3d 422, 436  

(Alaska 2012)) (internal quotation marks omitted).  



          21  

                                                                                                 

                    Patterson's  new  claims  are  both  overstated  and  unsubstantiated.    For  

                                                                                                  

instance, Patterson alleges that the trial judge called him a "dog" and spoke to him with  

"anger and hat[red] in his voice."  But the trial judge did not call Patterson a dog; he  

merely used a variant of the idiom "barking up the wrong tree."  And the courtroom  

audio recordings contain no evidence that the judge spoke menacingly to Patterson.  

Patterson also contends that the trial judge engaged in "ex parte communications" with  

                                                                 

GEICO.  This contention appears to stem from a statement the judge made to GEICO's  

attorney  off  the  record  but  in  Patterson's  presence.    By  definition,  therefore,  the  

statement was not an ex parte communication.  See B 

                                                                              LACK 'S LAW DICTIONARY 316 (9th  

                               

ed. 2009) (defining "ex parte communication" as "[a] communication between counsel  

and the court when opposing counsel is not present").  Patterson further asserts that the  

                                                                   

trial judge has "a history of out of court ex[] parte communications," but he points to no  

evidence in the record to back this allegation.  



                                                              -12-                                                         6994
  


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

                                                                                    

who previously has presided over a case involving the party seeking disqualification or  



              22  

recusal."         And we have held that "[t]o succeed on a motion to disqualify a judge for  



                                              

bias, the movant must show  that the judge's actions were the result of personal bias  



                                                          23  

                                                                                                         

developed from a nonjudicial source."                         We see no evidence of bias in the trial judge's  



                                                                                      

evidentiary  rulings,  and  Patterson  has  provided  no  evidence  to  substantiate  his  



                                                                                                 

conspiracy claim. We therefore affirm the denial of Patterson's motion to disqualify the  



trial judge.  



                                                                

          C.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Overruling  

                    Patterson's Objections To Dr. Bald's Deposition Testimony.  



                                                            

                    Patterson  contends  that  the  superior  court  abused  its  discretion  by  



overruling some of his objections during the deposition of Dr. Bald.  Patterson claims  



                                                                                                            

that one of GEICO attorney's coached Dr. Bald's testimony, creating unfair prejudice.  



                                               

He also claims that Dr. Bald's testimony contained false statements that another GIECO  

attorney knowingly introduced to the jury over his objection.24  



                                                                                       

                     1.	       It  was  not  unreasonable  for  the  superior  court  to  overrule  

                               Patterson's witness-coaching objections.  



                     To support his claim that portions of Dr. Bald's deposition should have  



been  excluded  due  to  witness  coaching,  Patterson  asserts  that  GEICO's  attorney  



                                                    

instructed Dr. Bald to lie at two separate points in the deposition.  We disagree with  



          22	       Pride v. Harris , 882 P.2d 381, 385 (Alaska 1994) (emphasis in original).  



          23        Hanson v. Hanson , 36 P.3d 1181, 1184 (Alaska 2001) (quoting                                      Nelson v.  



Jones , 781 P.2d 964, 972 (Alaska 1989)) (internal quotation marks omitted).  



          24        Patterson also alleges other forms of professional misconduct on the part  



of GEICO's attorneys, including (1) representing Patterson without permission and (2)  

                                                         

improperly and prejudicially substituting counsel.  He raises these claims for the first  

                                                                                      

time on appeal; because we perceive no plain error, they are waived.  



                                                               -13-	                                                        6994
  


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

                                                                                     

Patterson's characterization of the attorney's statements and conclude that the superior  



court's decision to overrule Patterson's objections was reasonable.  



                    The  first  statement  that  Patterson  characterizes  as  witness  coaching  



occurred  as  GEICO's  attorney  questioned  Dr.  Bald  about  the  extent  of  Patterson's  



                                                                                                            

injuries on the night of the accident.  The attorney appeared surprised by one of Dr.  



                                 

Bald's  answers,  and  he  repeated  Dr.  Bald's  testimony.    While  this  statement  was  



                                                                                          

technically objectionable because it was not in the form of a question, Patterson fails to  



                                                       

explain how it amounts to improper witness coaching.  He also fails to explain how he  



was prejudiced by it.  



                                                                                                                  

                    The  second  statement  that  Patterson  cites  arose  only  after  Patterson  



                                                                           

instructed Dr. Bald on how to answer a question.  When Dr. Bald rejected the premise  



                                                                               

of Patterson's question and began to explain why he could not answer it, Patterson told  



                                                                                                          

him:  "I asked you a question.  All you got to do is answer yes or no. . . .  I don't want  



                                                                                                             

you . . . to explain it. . . .  All you got to say is 'yes' or 'no.' "  In response to Patterson's  



                                                                                 

incorrect instruction, GEICO's attorney stated that Dr. Bald did "not need to just  answer  



                                                                                                                        

'yes' or 'no' " if he had more to say. (Emphasis added.) The attorney was making a legal  



argument against Patterson's instruction and was not advising Dr. Bald to provide any  



particular answer.  Therefore the superior court did not abuse its discretion when it  



overruled Patterson's improper witness coaching objection.  



                    2.	       It  was  not  unreasonable  for  the  superior  court  to  overrule  

                              Patterson's false-statement objections.  



                                                            

                    Patterson also argues that the superior court should not have admitted a  



separate  portion  of  Dr.  Bald's  testimony  because  it  contained  false  statements.  



                                                             -14-	                                                       6994
  


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

Moreover, he accuses another GEICO attorney of introducing the testimony knowing  

that the statement was false.25  



                    Patterson's criticism of the deposition testimony focuses on two of Dr.  



                             

Bald's assertions:  first, that "[t]here was no reference by the EMTs [in the Anchorage  



Fire Department Prehospital Care Report] that Mr. Patterson was complaining of any  



lower back pain," and second, that "[Patterson] was complaining of[] left shoulder pain  



                                                                                

and neck pain primarily on the left side. . . . [Patterson] specifically noted that there were  



no other injuries."  Patterson argues that these statements were inconsistent with the  



                                                                                                    

emergency  room  report  from  the  night  of  the  accident,  which  noted  that  one  of  



Patterson's chief complaints was "pain in neck and back."  We disagree.  



                                                             

                    Dr. Bald's interpretation of the emergency room report appears at least as  



                                               

reasonable as Patterson's.  The section of the report that provides a detailed description  



                                                                                 

of Patterson's symptoms contains no mention of lower back pain:  "[Patterson] now has  



                  

pain  in  his  left  shoulder  which  he  has  had  chronically  but  is  worse  now,  worse  to  



                                                                                                         

movement.  He also has pain in his neck, mostly on the left side as well.  No one else was  



in the vehicle with him.  He denies any other injury ."  (Emphasis added.)  Thus the back  



pain mentioned in the report, when read in the context of the entire document, probably  



                                                   

refers to shoulder pain, not lower back pain.  But regardless of whose interpretation is  



                                                                                                        

correct, Patterson has not demonstrated that Dr. Bald knowingly made a false statement  



at   his   deposition,   because   the   document   can   be   read   to   support   the   doctor's  



                                                                          

interpretation.  As a result, Patterson has likewise failed to show that GEICO's attorney  



offered evidence she knew to be false.  



          25        See Alaska R. Prof. Conduct 3.3(a) ("A lawyer shall not knowingly . . .  



          

make a false statement of fact or law to a tribunal . . . or . . . offer evidence that the  

lawyer knows to be false.").  



                                                             -15-                                                          6994  


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

                                                                                          

                   For these reasons, we conclude that the superior court's admission of this  



deposition testimony was not an abuse of discretion.  



                                                                                                     

          D.	      The Superior Court Did Not Violate Patterson's Free Speech And Due  

                                                                                   

                   Process Rights By Preventing Him From Discussing Subjects Outside  

                   The Scope Of The Admissible Evidence.  



                   During Patterson's opening statement and closing arguments to the jury,  



                                                                         

the superior court repeatedly sustained GEICO's objections, made its own sua sponte  



rulings, and ultimately ordered Patterson to conclude his opening statement and closing  



arguments before his time had expired.  Patterson argues that these restrictions on his  



statements violated his constitutional free speech and due process rights.  



                                                                                                   

                   Patterson's  free  speech  argument  is  entirely  without  merit.    The  U.S.  



Supreme  Court  has  indicated  that  free  speech  rights  are  severely  limited  in  the  



courtroom:    "It  is  unquestionable  that  in  the  courtroom  itself,  during  a  judicial  



                                                               

proceeding, whatever right to 'free speech' an attorney has is extremely circumscribed.  



                                                                                

An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond  

                                                                       26  And we have held that "speech that  

                                                                            

the point necessary to preserve a claim for appeal." 



                                                             27	                                                    28 

affects the judicial process can be limited."                   The courtroom is not a public forum,                   and  

                                                                                          



sustaining an objection does not violate a litigant's free speech right.  



          26	      Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991).  



          27       Turney v. State       , 936 P.2d 533, 541 (Alaska 1997) (citing Marks v. City of  



Anchorage , 500 P.2d 644, 647 (Alaska 1972)) (rejecting First Amendment claim by  

private citizen advocating within courthouse for jury nullification).  



          28       See Zal v. Steppe, 968 F.2d 924, 932 (9th Cir. 1992) ("Traditional First  



Amendment  analysis  also  supports  the  idea  that  lawyers  (and  others)  have  no  First  

Amendment  right  to  speak  freely  in  a  courtroom:    a  courtroom  is  not  a  public  

forum . . . .").  



                                                           -16-	                                                     6994
  


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

                    Patterson's due process claim, however, warrants more detailed discussion.  



We interpret this claim as an argument that Patterson's substantial rights were violated  



                                                                                                  29  

when the superior court ruled against him on evidentiary matters.                                     But under Alaska  



Evidence Rule 611(a), a trial court has wide discretion "to control the presentation of  



evidence so as 'to make the interrogation and presentation effective for the ascertainment  



                30  

of truth.' "        Patterson's due process claim can have no merit if Patterson cannot even       



show that the court's evidentiary rulings were unfair or unreasonable, and we see no   



abuse of discretion in these rulings.  



                    Nearly every sustained objection was intended to prevent Patterson from  



discussing facts not in evidence or from making irrelevant and potentially prejudicial  



                                                         

arguments about topics the court had explicitly ordered him not to discuss.  Patterson  



                                                                                     

repeatedly refused to abide by the superior court's order barring him from introducing  



                                                   

details about his insurance policy to the jury.  He tried to talk about the insurance claim  



                                                                         

process.  He obliquely implied that he had car  insurance while pulling an object -  



                                                

possibly his insurance card - out of his wallet to show to the jury.  He attempted to  



discuss his insurance coverage limits.  And he referenced his rejected insurance fraud  



                                                                                    

claim.  The superior court was well within its discretion to limit Patterson's statements  



on these matters.  



                    The superior court also prevented Patterson from arguing that Dr. Bald and  



                   

Patterson's treating physicians had been sued in the past for medical malpractice.  The  



                                                 

court stopped Patterson when he began referencing multiple medical malpractice claims  



                                          

brought against Dr. Bald as if they were all factually supported.  The court's action was  



          29        See Alaska R. Evid. 103(a).  



          30        Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996) (quoting 1 J                                 OHN W.  



STRONG ,  MCCORMICK ON EVIDENCE  55, at 225 n.21 (4th ed. 1992)).  



                                                             -17-                                                           6994  


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

reasonable because Patterson was mischaracterizing the evidence to the jury.  Dr. Bald  

                                                                                                                 



admitted in his deposition that he had been liable for one instance of medical malpractice  

                                                



during  his  career.    But  he  also  testified  that  the  three  remaining  claims  had  been  

                                                                                                            



dismissed, and Patterson presented no admissible evidence to contradict this testimony.  

                  



Likewise, Patterson presented no admissible evidence to support his insinuation that his  

                                                                      



own doctors had committed malpractice.  The court properly excluded all of Patterson's  

                                                                                                                   



proposed exhibits pertaining to malpractice allegations, because the documents were  

hearsay and could not be authenticated.31  The superior court did not abuse its discretion  



by requiring Patterson to discuss only facts that were supported by the evidence before  

                     



the jury.  



                     And the superior court acted reasonably by ordering Patterson to end his  

                                                                                                         



opening statement and closing arguments before his time had expired.  Before ordering  

                                                                                                               



Patterson to finish speaking during his opening statement, the court gave Patterson many  



                                                                                                                    

opportunities to correct his approach, advising him five times to focus his statement on  



                                      

the only relevant issue: the extent of his injuries as described by the admissible evidence.  



Despite these instructions, Patterson's narrative continued to exceed the scope of his  



                                                                                           

evidence, and he ultimately suggested that the jury should consider inadmissible issues:  



                                             

"this matter is not all about [an] injury; it's about more that is not going to be brought  



                                                                                                                   

out."  By this point, it was not unreasonable for the court to conclude that Patterson had  



nothing else relevant to say.  



                                                      

                     The court's decision to prematurely end Patterson's closing argument was  



similarly  reasonable.    During  his  argument,  Patterson  again  ignored  the  court's  



                                   

instructions to avoid  discussing his insurance details and to focus on relevant facts.  



          31  

                                                      

                     See Alaska R. Evid. 802 (hearsay rule), 901 (authentication requirement).  



                                                                -18-                                                               6994  


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

                                                                                                        

Moreover, the court ordered Patterson to finish his closing argument only after Patterson  

attempted to improperly personalize the verdict to the jury:32  



                    Ladies and gentlemen, what I'm trying to say is [that] GEICO  

                                          

                     . . . is hoping and trying to get not only you but me to take a  

                    knife and put it around your neck and pull it, because the  

                    decision that is made today is going to affect you, your kids,  

                                                                                          

                    and anybody else that drive[s] out there on that road because  

                                                                          

                    they honestly don't have to honor their contract.  



Likewise,  the  court  ordered  Patterson  to  finish  his  rebuttal  argument  only  after  he  

                                                                                                                        



returned again to this improper theme:  



                                                        

                    All I'm asking you all to do is go back to that [deliberation]  

                                           

                    room and do the right thing. Do the right thing. [GEICO]  

                                              

                    wants you to do something that['s] going to [affect] not only  

                    you, me, and everybody else. This opinion's going to be all  

                    over  the  country.  .  .  .          This  gives  insurance  companies  a  

                                                                                             

                    chance to lowball you for your claims. That's what that's  

                                                  

                    about.  



                    The superior court had a duty to ensure that the trial was fair to GEICO as  

                                                                                        



well  as  Patterson.    The  court  took  reasonable  action  to  control  the  proceedings  and  



prevent Patterson from introducing irrelevant facts and prejudicial arguments to the jury.  



                                                                                                               

The court did not abuse its discretion by limiting Patterson's statements to the relevant  



                  

evidence. And by providing Patterson with ample opportunity to speak to the jury about  

the relevant evidence, the court ensured that Patterson received the process he was due.33  



          32         Cf.   State  v.  Raspberry,  452  S.W.2d  169,  172  (Mo.  1970)  (rejecting  as  



improper  an  argument   that   jury  should  return  guilty  verdict  "for  the  sake  of  your  

children, . . . for your wives, . . . for your families, [and] for the sake of the people of the                            

community").  



          33  

                                                                                                  

                    Patterson  also  argues  that  the  court  violated  his  confrontation  and  due  

                                                                                                                           

process rights by denying his request to examine Dr. Bald telephonically at trial, and he  

accuses  one  of  GEICO's  attorneys  of  making  a  false  statement  to  this  court  by  

                                                                                                                (continued...)  



                                                               -19-                                                         6994
  


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

          E.	      The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Omitting  

                                                                                               

                   Portions Of Dr. Bald's Deposition When It Was Played To The Jury.  



                   The  superior  court  sustained  objections  to  six  segments  of  Dr.  Bald's  



                                                                                                        

deposition.        Patterson  argues  that  the  court  abused  its  discretion  by  omitting  these  



segments when the deposition was played to the jury.  We disagree.  



                   None of the six segments contained testimony that was relevant to the jury's  



                                                                                               

deliberations.  One segment pertained to the discoverability of Dr. Bald's tax documents.  



Three segments contained Patterson's argumentative and unsubstantiated accusations  



that Dr. Bald had previously committed multiple instances of medical malpractice and  



was lying to Patterson about them.  Another segment pertained to past malpractice claims  



                                                                                                           

that had previously been brought against Patterson's treating physicians; Dr. Bald had  



                                            

no personal knowledge about the doctors or the claims.  And the final segment consisted  



                                                                                             

of a legal discussion between Patterson and GEICO's attorney, followed by a series of  



questions about the misconduct of a different Dr. Bald.  Because these portions of the  



deposition were irrelevant to the issues at trial, the court reasonably omitted them.  



          F.	      The Trial Court Did Not Err By Overruling Patterson's Objections  

                   During GEICO's Opening Statement And Closing Argument.  



                   Patterson  argues  that  GEICO  made  unfairly  prejudicial  remarks  in  its  



              

opening statement and closing argument.  He claims GEICO violated a superior court  



          33(...continued)  



mischaracterizing Confrontation Clause doctrine. But the Confrontation Clause does not  

                                                                                                                   

apply to civil proceedings, and GEICO's attorney's statement to that effect was both  

              

accurate and proper.  See U.S. CONST . amend. VI ("In all criminal prosecutions , the  

accused shall enjoy the right  .  .  .  to  be confronted with the witnesses against him."  

                                                        

(emphasis added)).  And the superior court generally does not have subpoena power to  

                 

require out-of-state  witnesses to appear.   See Alaska R. Civ. P. 45(e) ("A subpoena  

                              

requiring the attendance of a witness at a hearing or trial may be served at any place  

                                      

within the state." (emphasis added)).  



                                                            -20-	                                                     6994
  


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

order by raising his prior medical history and by suggesting a specific amount for pain  

                                                                                         



and  suffering  damages.               Patterson  also  contends  that  GEICO's  closing  argument  

                                        



included a "golden rule" argument, a disclosure of the "ad damnum," and improper  



personal opinions.  



                   During opening statements, GEICO's attorney told the jury:  



                            [Y]ou will see from the medical records that . . . Mr.  

                   Patterson  has  a  history  of  prior  neck  problems,  prior  left  

                   shoulder  problems,  prior  knee  problems.    He  also  has  a  

                   history of prior low back issues.  You will see . . . that in the  

                                                                                           

                   month after this accident, his complaints were all about his  

                                           

                   neck   and   his   shoulder,   that   there   [were]   no   specific  

                                                                          

                   complaints about his low back or examination or diagnosis  

                   regarding his low back until about a month and a half after  

                   this accident occurred . . . .  GEICO's position in this case  

                          

                   will be that he did not sustain a low back injury.  



                   And during closing arguments, GEICO's attorney stated:  



                            [I]f you look through the records and you add up the  

                   medical expenses for December 2009, excluding . . . three  

                   items of treatment [that GEICO believes were unrelated to the  

                                                                                   

                   car accident], the medical expenses total $6,354.61, and that's  

                   what we'd ask that you award Mr. Patterson for past medical  

                   expenses.  



                            For past general damages, this is typically a difficult  

                   area for juries to . . . [grasp], because what the court will tell  

                                                                                      

                   you is . . . there's no formula for figuring out what to award  

                   somebody for pain and suffering.  And in some respects your  

                                        

                   job is more difficult here because you have no [testimonial]  

                         

                   evidence . . . to base an award on.  All you have is what's in  

                   the medical record. . . .  So in the absence of . . . testimony,  

                                                           

                   we'd respectfully submit to you that, at most, what you can  

                   award is a nominal amount for past pain and suffering, and  

                   that's it because that's all the evidence supports in this case.  

                               

                   And we'd suggest an award [of] $500 [to] $1,000 for that  

                                                                    

                   month of some pain.  



                                                          -21-                                                     6994
  


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

                                Patterson's  claim   that   GEICO   violated   a  court   order  by   discussing  his  



medical history is without merit.  In the court order Patterson references, the superior   



court explicitly noted that Patterson's medical records could be relevant for determining       



whether his injuries stemmed from the accident, from preexisting conditions, or from   



some combination of both.  GEICO's attorney discussed Patterson's medical history for     



exactly this purpose.  



                                                                                                                  

                                Patterson's argument that GEICO violated an order to avoid suggesting a  



                                                                                                                

specific damages award is similarly meritless.  Although the court ordered both parties  



                                                           

not to discuss the details of Patterson's insurance policy - including its coverage limits  



                                                                                                                                

- GEICO remained free to suggest a damages figure to the jury based on the evidence  



at trial.  



                                We also reject Patterson's claim that GEICO made an improper "golden  



                                                                                                                            

rule" argument.  Golden rule arguments "implore[] the jurors to put themselves in the  



                                                                                                                                                                                   

position of [a party], and then to ask themselves what kind of outcome they would wish  



                                                               34  

                                                                    Although we have held  that golden rule arguments are  

under the circumstances."                                                                                                         

prejudicial and should be excluded,35 GEICO made no such argument in its opening and  

                                                                                                                          



closing statements.  



                                Patterson's "ad damnum" argument seems to refer to GEICO's suggestion  

                                                                                                                                                       



that the jury award  $500 or $1,000 for pain and suffering.  An "ad damnum" is an  

                                                 



                34             Beaumaster v. Crandall , 576 P.2d 988, 994 (Alaska 1978).  



                35             Id. (citing Mallonee v. Finch , 413 P.2d 159, 164 (Alaska 1966)).  



                                                                                                  -22-                                                                                                    6994  


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

                                                                                                      36 

                                          

antiquated term for the total damages claimed in a plaintiff's pleadings.                                 But Patterson's  



complaint did not include an ad damnum figure, so this argument is without merit.  



                    Finally, we reject Patterson's claim that GEICO's attorney expressed an  



                                                                                        

improper personal opinion. The personal opinion objection is typically found in criminal  



                                                           

cases, when a "prosecutor . . . assert[s] personal opinion[s] about the culpability of the  



                 37 

                                                                                     

defendant."          The U.S. Supreme Court has explained that such arguments are prejudicial  



                                                                             

because they "convey the impression that evidence not presented to the jury, but known  

                                                                                          38   This can be particularly  

to the prosecutor, supports the charges against the defendant."                                       



prejudicial  because  "the  prosecutor's  opinion  carries  with  it  the  imprimatur  of  the  



Government and may induce the jury to trust the Government's judgment rather than its  



                                          39  

                                                      

own view of the evidence."                    But the prohibition against personal opinions does not  



                                                   

prevent an attorney from arguing the evidence from a client's position.  Here GEICO's  



                                                                  

attorney  merely  summarized  the  evidence  and  argued  for  GEICO's  preferred  legal  



                                                                                                 

outcome.  This was entirely proper, and the court did not abuse its discretion by allowing  



GEICO to argue its case.  



          G.        The Superior Court Did Not Misinstruct The Jury.  



                                                                               

                    Patterson argues that the superior court misinstructed the jury by referring  



           

to Dr. Bald as an "examining physician" early in the trial and by drafting an incorrect  



                                                                                                                       

special verdict form.  We will overturn a jury instruction or special verdict form only if  



          36        See, e.g., Jackson v. Leu-Pierre, 296 A.2d 902, 903 (N.H. 1972) ("The  



plaintiff's original writ . . . contained an ad damnum in the amount of $12,000.00.  By  

                                          

motion granted by agreement . . . , this was increased to $13,500.00 due to the addition  

                                               

of a claim for property damage.").  



          37        See Noel v. State, 754 P.2d 280, 283 (Alaska App. 1988).  



          38        United States v. Young, 470 U.S. 1, 18 (1985).  



          39        Id. at 18-19.  



                                                             -23-                                                        6994
  


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

                                                                                  

we conclude both "that the instruction or special verdict form was legally erroneous" and  



                                                                                                        40  

"that the verdict would probably have been different but for the error."                                    



                    Patterson correctly notes that the superior court erroneously referred to Dr.  

                                                                                          



Bald as "a physician who examined Mr. Patterson" while providing the jury with an  



                                                                    

overview of the evidence they would hear at trial.  But Patterson quickly brought this  



error to the court's attention, and the court addressed the mistake with the jury:  



                    I want to correct a misstatement I made . . . .  I said that Dr.  

                    Bald  was  .  .  .  an  examining  physician.    It  turns  out  I'm  

                                   

                    wrong. .  .  .    He's  a  defense  expert.    However,  he  did  not  

                    conduct  an  examination  of  Mr.  Patterson.    He  merely  

                    conducted what we call a records review but not a physical  

                                                                                  

                    examination.  So I wanted to correct any misimpression.  



Patterson did not object to this subsequent characterization of Dr. Bald's role.  Moreover,  



GEICO reiterated during its opening statement that "Dr. Bald conducted what's called  

                                                                       



a  records  review.          He  reviewed  Mr.  Patterson's  records.    He  did  not  examine  Mr.  

                                                                                                



Patterson ." (Emphasis added.)  These clarifications, along with the playback of Dr.  



Bald's  deposition  to  the  jury,  clearly  and  accurately  described  Dr.  Bald's  role,  and  



                                                                                                      

Patterson has not presented any evidence that he was prejudiced by the court's initial  



misstatement.  



                                                     

                    Patterson also argues that the superior court erred by crafting a special  



verdict form based on GEICO's proposed form, not his.  But there were only three  



material differences between the court's special verdict form and Patterson's proposed  



form:  (1) the court's form asked the jury whether it was "more likely true than not" that  



Patterson was injured by the December 2009 accident; (2) Patterson's form incorrectly  



                                                                  

stated that "GEICO [was] obligated to pay to Plaintiff the applicable policy limit . . .  



          40  

                                                                                               

                    Sowinski v. Walker, 198 P.3d 1134, 1160 (Alaska 2008) (citing Reich v.  

Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002)).  



                                                             -24-                                                          6994  


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

spelled out in the contract"; and (3) Patterson's form contained a reference to "bad faith  

                                                                                                                     



damages."  



                    Patterson is correct that, in the absence of further instruction, asking the   



jury to evaluate whether he had been injured in the accident might have been prejudicial  



in light of GEICO's admission that he sustained at least minor injuries.  Nevertheless,  



                                                        

both the superior court and GEICO informed the jury that this issue was not contested  



                                                                           

and that the jury was required to find that the car accident resulted in personal injury to  



Patterson.  Because the jury followed this instruction, Patterson suffered no prejudice.  



                                                                                 

                    Patterson's remaining complaints about the court's special verdict form are  



                                                                            

entirely without merit.  Neither Patterson's policy limit nor his proposed bad faith claim  



                                                                                           

were  relevant  to  the  jury's  deliberations, and  referencing  either  item  on  the  special  



verdict form would have caused unfair prejudice to GEICO.  



                    For these reasons, we conclude that the superior court did not misinstruct  



the jury.  



                                                                              

          H.	        The  Superior  Court  Did  Not  Err  By  Adjusting  The  Judgment  Or  

                    Awarding Attorney's Fees And Costs To GEICO.  



                                                

                    Patterson  argues  that  the  superior  court  erred  by  adjusting  the  final  



                                                                                 

judgment by $5,000 to account for medical expenses that GEICO had already paid.  He  



                         

also argues that the superior court erred by granting GEICO's request for attorney's fees  



and costs.  



                                                                                                                  

                    Patterson  claims  that,  by  deducting  $5,000  from  the  jury  verdict,  the  



                       

superior court erroneously ordered him to "pay GEICO back" for the medical expenses  



he incurred.  This is incorrect.  The unadjusted jury verdict covered all of Patterson's  



                                                         

damages, and the court's adjustment reflected GEICO's past compensation to Patterson  



in  the  form  of  paid  medical  expenses.    Indeed,  had  the  court  failed  to  make  this  



adjustment, Patterson would have received a double recovery.  



                                                               -25-	                                                       6994
  


----------------------- Page 26-----------------------

                                    We also conclude that the superior court did not err by declaring GEICO                                                                      



the prevailing party and granting GEICO's request for attorney's fees and costs.  Under                                                   



Alaska Civil Rule 68, if a party serves an offer of judgment "more than 10 days before                   



the trial begins" and the final judgment "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(b)(2), which is applicable here, provides that "if the offer was  



                                                                                                                                                                                             

served  more  than  60  days  after  the  date  established  in  the  pretrial  order  for  initial  



disclosures . . . but more than 90 days before the trial began, the offeree shall pay 50  



percent of the offeror's reasonable actual attorney's fees."  



                                    GEICO presented Patterson a valid offer of judgment for $15,001 plus  



prejudgment interest, "in addition to the $5,000.00 in auto medical payments benefits  



                                                                                                                                 

previously paid by Geico on plaintiff's behalf."  (Emphasis added.)  The superior court,  



after deducting $5,000 for GEICO's past medical payments from the jury verdict and  

                                                                                                      41 determined that the final judgment for Patterson  

adding $1,386 in prejudgment interest,                                                                                                                 



was $11,386. Because this amount was more than five percent smaller than the $15,001  

                                                                          



plus interest that GEICO had previously offered Patterson, the court concluded that  



                                                                                         

GEICO was the prevailing party and was therefore entitled to attorney's fees and costs  



                                                                                                                                                                           

under Rule 68.  GEICO reported that it had incurred $3,087.25 in costs, and that it was  



                  41                Patterson argues that the proper interest rate should have been 8%, not the                                                                              



3.75% the court used.  But it is unclear where Patterson obtained this figure, since the   

statute he cites, AS 45.45.010(a), is not only irrelevant but references an interest rate of                                                                                               

 10.5%.  Regardless, the correct interest rate under AS 09.30.070 was 3.75% - that is,                                                                                                                                  

3% more than the .75% U.S. Federal Reserve discount rate in effect on January 2, 2013.             

See  U.S.  F 

                                 ED .         RESERVE ,                     DISCOUNT   AND   ADVANCE   RATES :    NOVEMBER                                                                                          19   AND  



                                                                    

D E  C  E  M  B  E  R                                1 0 ,                2 0 1 2 ,                        a t             2             ( 2 0 1 2 ) ,                           a v a i l a b l e                                a t   

http://www.federalreserve.gov/newsevents/press/monetary/monetary20130108a.pdf.  



                                                                                                               -26-                                                                                                         6994
  


----------------------- Page 27-----------------------

eligible for a $6,742 attorney's fees award under Rule 68(b)(2).  The court subtracted   



these expenses from Patterson's final judgment amount, which resulted in a net final  



                                                                                  

judgment of $1,556.75 in favor of Patterson.  We see no error in the court's calculations.  



V.          CONCLUSION  



                        We AFFIRM the judgment of the superior court in all respects.  



                                                                              -27-                                                                 6994
  

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