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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Long v. Arnold (12/16/2016) sp-7140

Long v. Arnold (12/16/2016) sp-7140

         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  



ERIN LONG,                                                 )  

                                                           )    Supreme Court No. S-15669  

                           Appellant,                      )  

                                                           )    Superior Court No. 1SI-13-00129 CI  

         v.                                                )  

                                                           )    O P I N I O N  

ROBERT ARNOLD,                                             )  

                                                           )    No. 7140 - December 16, 2016  

                           Appellee.                       )  

                                                           )  



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

                                                                    

                  Judicial District, Juneau, David V. George, Judge.  



                  Appearances:  Charles W. Coe, Law Office of Charles W.  

                                                                 

                  Coe,   Anchorage,   for   Appellant.      Sheldon   E.   Winters,  

                  Lessmeier & Winters, LLC, Juneau, for Appellee.  



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

                                

                  Bolger, Justices.  



                  WINFREE, Justice.  

                  MAASSEN,   Justice,   with   whom   STOWERS,   Chief   Justice,   joins,  

                  dissenting in part.  



I.       INTRODUCTION  



                  The main issue in this negligence case is whether it was error to issue the  

                                                                                                         



following causation instruction - specifically the last sentence of the instruction - to  

                                                                       



a jury determining whether one driver's admitted negligence was a substantial factor in  

                                                        



causing another driver's claimed harm:  


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

                   Negligence is a substantial factor in causing harm if:  



                             1.  the harm would not have occurred without  

                             the negligence; and  



                             2.    the  negligence  was  important  enough  in  

                             causing  the  harm  that  a  reasonable  person  

                             would  hold  the  negligent  person  responsible.  

                             The  negligence  cannot  be  a  remote  or  trivial  

                             factor.  



We hold it was not error to issue that instruction.  



II.       FACTS AND PROCEEDINGS  



                   In  July 2012 Erin Long was driving toward Sitka when Robert Arnold  

                        



turned his truck onto the road, cutting her off and forcing her into a ditch.  Long was  

                                                         



traveling approximately ten miles per hour when she drove off the road, and her car  

                                                                          



slowed to a stop as it contacted roadside bushes.  Long's car did not come into contact   



with Arnold's truck or any other stationary roadside object.   



                                                                                                                 

                   Long claimed she began to feel sore while on a flight to California two days  



after the accident.  She subsequently sought medical treatment for her pain.  Long later  



                                             

sued Arnold, alleging that his negligent driving caused her injury, medical expenses,  



                                                                                                   

economic loss, loss of enjoyment of life, and physical and emotional pain and suffering.  



                                                   

                   The case went to trial in July 2014.  The jury found that Arnold's admitted  



                                                                                   

negligence was not a substantial factor in causing Long's claimed harm; it therefore did  



not reach the damages question.  The superior court entered judgment for Arnold and  



awarded him costs and attorney's fees under Alaska Civil Rules 79 and 82.    



                   Long  appeals,  arguing  that  the  superior  court  improperly  permitted  



                                     

Arnold's medical expert to testify and that it gave incorrect causation and damages jury  



                                                                          

instructions.    Alternatively  Long  asserts  that  the  superior  court  incorrectly  failed  to  



                                                            -2-                                                      7140
  


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

                                     

apportion the costs and fees awards between Long and her insurer and that it improperly  



included a local sales tax.   



III.	     DISCUSSION  



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

                    Arnold's Expert Witness Testimony.1  



                                                                                           

                     Long argues that Arnold's expert witness, an orthopedic surgeon, should  



not  have  been  allowed  to  testify;  she  contends  that  the  required  expert  witness  



disclosures were incomplete and not made in a timely fashion, that the expert's testimony  



                                                                                                                   

was not helpful to the jury because he had not examined Long, and that he was biased.  



                     The superior court determined that any incompleteness or delay in Arnold's  



                                                                  

expert disclosures did not prejudice Long because complete disclosures were made in  



                                                                                                              

time for use at deposition and trial.   We agree.   Long did not depose the witness or  



request to extend discovery, despite having two months before trial to do so.  To the  



extent   the   disclosures   initially   were   incomplete,   they   were   supplemented   and  



                                                                                                         2  

substantially complete as required by Alaska Civil Rule 26(a)(2)(C).   



                    Under  Alaska  Evidence  Rule  702(a),  "if  scientific,  technical,  or  other  



specialized  knowledge  will  assist  the  trier  of  fact  to  understand  the  evidence  or  to  



                                                                                                        

determine  a  fact  in  issue,  a  witness  qualified  as  an  expert  by  knowledge,  skill,  



          1         We generally review a trial court's decision to admit expert testimony for   



abuse of discretion and will reverse only if the decision is manifestly unreasonable.  

Cooper v. Thompson, 353 P.3d 782, 786 (Alaska 2015) (first citing State v. Coon, 974  

              

P.2d 386, 398 (Alaska 1999); then quoting Ranes & Shine, LLC v. MacDonald Miller  

Alaska, Inc. , 355 P.3d 503, 508 (Alaska 2015)).  



          2  

                                                                                                       

                     This rule requires that expert disclosures "be made at the times and in the  

                                                                                                     

sequence  directed  by  the  court."    The  rule  also  requires  that  a  party  supplement  its  

                                                            

disclosures under subsection (e)(1) "if the party learns that in some material respect the  

                                                                                                                

information  disclosed  is  incomplete  or  incorrect  and  if  the  additional  or  corrective  

information has not otherwise been made known to the other parties."  



                                                                -3-	                                                        7140
  


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

                                                                            

experience,  training,  or  education,  may  testify  thereto  in  the  form  of  an  opinion  or  



otherwise."  Arnold's expert was a board-certified orthopedic surgeon who reviewed  



                          

Long's medical records, including an MRI of her spine.  The defense presented evidence  



that the expert was qualified to read and interpret MRIs and that he had experience  



                                                                   

concerning trauma-related spinal injuries, and his causation opinion could have helped  



                                                    3  

                                                                                                                              

the jury determine a fact at issue.                    Because the expert's opinion could be useful to the  



jury, it was not manifestly unreasonable to admit his testimony even though he had not  



physically examined Long.  As for Long's claim that the expert was biased, "it is well  



settled   that   an   allegation   of   [expert]   bias   goes   to   testimony's   weight,   not   its  

admissibility."4  



                                                                                               

                     The superior court's decision to admit Arnold's expert witness's testimony  



over Long's objections was not manifestly unreasonable, and we affirm it.  



                                                                                                                

           B.	       All Of Long's Challenges To Jury Instructions Lack Merit Or Are  

                     Moot.5  



                     Long challenges the superior court's jury instructions on causation and  



               6  

damages.   For the reasons below, we affirm the court's jury instruction decisions.  



           3         See Thompson v. Cooper                , 290 P.3d 393, 399-400 (Alaska 2012) (clarifying   



that medical expert witnesses' opinion testimony on causation may be helpful to jury  

when opinions are formed by experts subjectively "applying their practical experience  

to the particular facts of [the] injury").  



           4         Sylvia L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                         

343 P.3d 425, 434 (Alaska 2015) (citing DiCarlo v. Keller Ladders, Inc. , 211 F.3d 465,  

                                                                                                                  

468 (8th Cir. 2000)).  



           5         "Jury  instructions  involve  questions  of  law  to  which  we  apply  our  



independent judgment."  Thompson, 290 P.3d at 398 (citing L.D.G., Inc. v. Brown , 211  

P.3d 1110, 1118 (Alaska 2009)).  



           6  

                                                                                   

                     The instructions Long challenges are all based on Alaska Civil Pattern Jury  

                                                                                                                 (continued...)  



                                                                 -4-	                                                         7140
  


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

                    1.	      The superior court did not err by using the substantial factor  

                                                                                                           

                             instruction or by including the term in the special verdict form.  



                   Long contends that the causation instructions misstated the law by requiring  



                                                                                           

the jury to determine if Arnold's negligence was a "substantial factor" in causing Long's  



harm and by defining "substantial factor" to include the limitation that "the negligence  



                                                        

cannot be a remote or trivial factor."  At trial Long requested an instruction informing  



                 

the jury of the causation requirement without inclusion of the "remote or trivial factor"  



limitation.  The superior court declined to use Long's proposed instruction, a decision  



                                          7  

Long  challenges  on  appeal.     Long  also  argues  that  repeating  the  substantial  factor  



                                                                              

requirement  in  the  special  verdict  form  created  an  elevated  burden  "contrary  to  the  



normal burden of proof in a civil case."   



                   Alaska uses the substantial factor test as a negligence claim's causation  



element:  



                   Alaska  follows  the  "substantial  factor  test"  of  causation,  

                   which  generally  requires  the  plaintiff  to  show  that  the  

                                                 

                   accident would not have happened "but for" the defendant's  

                                                                                         

                   negligence  and  that  the  negligent  act  was  so  important  in  



          6         (...continued)  



Instructions (Pattern Instruction):  Pattern Instruction 02.04 (defining "preponderance  

                                                    

of  the  evidence"),  Pattern  Instruction  03.01  (instructing  jurors  on  when  plaintiff  is  

                                         

entitled to recover for negligence), Pattern Instruction 03.07 (instructing jurors how to  

determine whether negligence was substantial factor in causing plaintiff's harm), Pattern  

                                                                    

Instruction  20.06  (instructing  jurors  on  non-economic  loss  damages),  and  Pattern  

Instruction 20.18A (instructing jurors not to compensate plaintiff for harm caused by  

failure to mitigate).  



          7        "When  reviewing  a  trial  court's  denial  of  a  proposed  instruction,  our  



                                                                                                  

inquiry focuses upon whether the instructions given, when read as a whole, adequately  

                                                                        

inform the jury of the relevant law."  Thompson, 290 P.3d at 398 (quoting Kavorkian v.  

Tommy's Elbow Room, Inc., 694 P.2d 160, 166 (Alaska 1985)).  



                                                             -5-	                                                      7140
  


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

                    bringing about the injury that reasonable individuals would   

                                                                                                [8] 

                    regard it as a cause and attach responsibility to it.  



                              

                    Long specifically challenges inclusion of the sentence instructing the jury  



                                                                                

that, to be a substantial factor in causing her injury, Arnold's negligence could not be a  



                                              

remote or trivial factor. Long contends that the remote or trivial language is unsupported  



                                                                                                       

by our case law and that it forced the jury to "re-quantify" Arnold's negligence.  But we  



                                                                                

have expressly stated that negligence law prohibits liability for harm "too remote from  



                                                           9  

                                                              Alaska's substantial factor test is derived from  

the defendant to be chargeable to him." 

the Restatement (Second) of Torts  431 (1965),10 containing commentary creating a  

                           



distinction between events that are substantial factors in causing harm and events that are  



"so insignificant [to causing the harm] that no ordinary mind would think of them as  



             11  

causes."           It  is  clear  from  this  principle  that  negligence  cannot  be  considered  a  

substantial factor in causing harm if the negligence's relation to the harm is "trivial."12  



                    We fail to see how the substantial factor instruction including the statement  

                                                  



"[t]he negligence cannot be a remote or trivial factor" forced the jury to "re-quantify"  

                                                                                                     



Arnold's  negligence.    As  part  of  the  substantial  factor  test,  the  "remote  or  trivial"  



          8          Winschel v. Brown, 171 P.3d 142, 148 (Alaska 2007) (citing  Vincent by  



Staton v. Fairbanks Mem'l Hosp., 862 P.2d 847, 851 (Alaska 1993)).  



          9         Howarth v. State, Pub. Def. Agency ,  925 P.2d 1330,   1333 (Alaska 1996)  



(quoting  Vincent, 862 P.2d at 851 n.8).  



          10         Vincent, 862 P.2d at 851.  



          11        RESTATEMENT (SECOND) OF TORTS   431 cmt. a (AM .  LAW INST . 1965).  



          12         Trivial,      BLACK 'S         LAW       DICTIONARY             (10th      ed.     2014)       ("Trifling;  



inconsiderable; of small worth or importance.").  



                                                                -6-                                                         7140
  


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

                                    

language does not concern the negligence itself, but instead asks the jury to examine the  

relationship between the negligence and the harm.13  



                                                        

                         When the jury instructions are read as a whole, it is clear the challenged  



instruction  did  not  elevate  Long's  burden  of  proof  in  this  case.    The  superior  court  



                                                                                                   

instructed the jurors that "to find that the plaintiff is entitled to recover, you must decide  



                                                         

it is more likely true than not true that . . . the defendant's negligence was a substantial  



                                  

factor in causing the plaintiff's harm."  The superior court also explained to the jurors  



                                                             

that "[s]ome of the instructions ask you to decide whether something is more likely true  



                                                                                                                   

than not true.  Something is more likely true than not true if you believe that the chance  



                                                                                                                                                           

that it is true is even the slightest bit greater than the chance that it is not true."   These  



                                                                                        

instructions clearly lay out Long's burden of proving causation by a preponderance of  

the evidence.14  



             13           Vincent, 862 P.2d at 851 ("The   [proximate cause] prong of negligence  



causation questions 'whether the conduct has been so significant and important a cause   

that the defendant should be legally responsible.' " (quoting W.P                                                             AGE KEETON ET AL .,  

PROSSER AND KEETON ON  TORTS   42, at 273 (5th ed. 1984))).  



             14           Long also contends that the superior court should not have used Pattern   



Instruction 02.04 because "the language of this instruction is confusing . . . since it                                                            

addresses comparative fault and percentages."  The instruction defines "preponderance   

of the evidence":  



                          Something is more likely true than not true if you believe that  

                         the chance that it is true is even the slightest bit greater than  

                                                                                                                      

                         the  chance  that  it  is  not  true.    In  more  familiar  language,  

                                                                                                         

                          something is more likely true than not true if you believe that  

                                                              

                         there is a greater than 50 percent chance that it is true.  Fifty- 

                          one percent probability is enough; no more is required for  

                         you to decide that something is more likely true than not true.  

                                                             



                                      If you believe that the chance that something is true is  

                                                    

                          50/50 or less, you must decide that it is not true.  

                                                                                                                                            (continued...)  



                                                                                -7-                                                                         7140
  


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

                                                                 

                     Finally,  the  special  verdict  form  asked  the  jury  "[w]as  the  defendant's  



negligence a substantial factor in causing harm to the plaintiff?"  Because Long did not  



                                                                                   

object to the special verdict form at trial, we review her argument on appeal for plain  



         15  

                                                                                                                         

error.       The substantial factor instruction is an accurate statement of the law, so using  



       

the  term  "substantial  factor"  on  the  special  verdict  form  does  not  create  "a  high  



                                                                                

likelihood that the jury would follow an erroneous theory resulting in a miscarriage of  



             16 

                                                                                                             

justice."        The superior court did not err in giving the substantial factor instruction or by  



including the term on the special verdict form.  



                     2.	       The jury instructions adequately informed the jury of the law  

                               without a multiple cause instruction.  



                     Long requested an instruction directing jurors that "[s]everal factors may  



operate  at  the  same  time  .  .  .  to  cause  harm"  and  "[i]n  such  a  case,  each  may  be  a  



           14        (...continued)  



Though this language used percentages to explain the concept of "more likely than not,"  

                                                                                                                       

it did not invite the jurors to compare Long's and Arnold's fault and does not misstate  

                                                                                                                   

the law.  See RESTATEMENT (SECOND) OF TORTS  433B, cmt. a (AM .  LAW INST . 1965)  

(explaining  that  plaintiff's  burden  of  proof  is  by  a  preponderance  of  the  evidence,  

meaning plaintiff "must make it appear that it is more likely than not that the conduct of  

                                                                                                                      

the defendant was a substantial factor in bringing about the harm").  The superior court  

                                                                                                          

did not err by giving this instruction.  



           15	  

                                                                          

                     Patterson v. Cox , 323 P.3d 1118, 1120-21 (Alaska 2014) (citing Roderer  

                               

v.  Dash ,  233  P.3d  1101,  1110  (Alaska  2010)).    "[P]lain  error  exists  when  the  jury  

                                                                                      

instruction obviously created a high likelihood that the jury would follow an erroneous  

                                 

theory resulting in a miscarriage of justice."  Id. at 1121 (alteration in original) (quoting  

Khan v. State , 278 P.3d 893, 896 (Alaska 2012)).  



           16  

                                                                              

                     Id. at 1121 (quoting Khan , 278 P.3d at 896); see Cummins, Inc. v. Nelson ,  

                                                                                 

 115  P.3d  536,  544  (Alaska  2005)  (noting  special  verdict  form  must  "appropriately  

paraphrase[]" jury instructions).  



                                                                -8-	                                                         7140
  


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

                                                                           17  

substantial factor in causing the harm."                                        Instead of the instruction Long proposed, the  



court issued Pattern Instruction 20.11, informing the jurors that "[a] person who has a  



                                                                                                                     

condition or disability at the time of an injury cannot recover damages for that condition  



or disability" but can "recover damages for an aggravation of such pre-existing condition  



                                                                                 

or disability if the aggravation is the legal result of the injury."  The superior court gave  



                                                                                                                            

this instruction instead of Long's requested instruction because it determined that Pattern  



Instruction 20.11 applied to the case's facts and Long's proposed instruction did not.  



                          A multiple cause instruction is appropriate when there are two or more  



                                                                                                   18  

                                                                                                                                        

forces, each by itself sufficient to cause the injury.                                                  By declining to issue a multiple  



                                                                                                          

cause instruction, the superior court determined that the evidence presented did not show  



                                                                                                            

multiple causes operating to harm Long, each sufficient to independently cause Long's  



                                                                               

harm.    Long's  concern  on  appeal  that  the  jury  may  have  attributed  her  harm  to  a  



preexisting condition was resolved by the court's decision to give Pattern Instruction  



                                                                                                                                          

20.11.  The jury instructions issued adequately informed the jury of the applicable law.  



             17           Pattern Instruction 03.08.  



             18           State v. Abbott             , 498 P.2d 712, 727 (Alaska 1972) (explaining exception to     



actual cause requirement and stating "if two forces are operating to cause the injury, one               

because of the defendant's negligence and the   other   not, and each force by itself is  

sufficient to cause the injury, then the defendant's negligence may be found to be a     

substantial factor in bringing about the harm" (citing R 

                                                                                                       ESTATEMENT (SECOND) OF TORTS  



                                                   

 432(2) (AM . LAW INST . 1965))); Pattern Instruction 03.08 Directions for Use ("This  

instruction should be given when there is evidence that more than one factor operated to  

                                                                                

cause the harm.").  



                                                                                 -9-                                                                         7140
  


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

                    3.         The issue of jury instructions on damages is moot.19  



                                                                                                

                    Long challenges the superior court's decision not to give her proposed non- 



                                                                                                          

economic damages instruction, which would have instructed jurors:  "You shall award  



                                                                                                                 

. . . a fair amount to compensate the plaintiff for pain and suffering, loss of enjoyment of  



life,  humiliation,  embarrassment,  physical  impairment,  stress,  and  inconvenience  



                                              

resulting from her injuries."  Long also objects to a sentence in a mitigation instruction  



defining "reasonable efforts" and advising jurors not to award damages for any losses  



that could have been avoided with such efforts.  



                             

                     The first question on the special verdict form had a pre-answered "yes" to  



                                                                                                            

the question whether Arnold was negligent because Arnold admitted this before trial.  



                                                                   

The second question on the special verdict form asked the jury:  "Was the defendant's  



negligence a substantial factor in causing the harm to the plaintiff? Answer 'yes' or  



             

'no.' "  The jury answered:  "No."  The special verdict form then instructed jurors that  



                                                                                                                            

if their answer was "no," they were finished with their deliberations and were not to  



answer any subsequent questions.  The jury never considered any question regarding  



damages.   



                                                                             

                    An issue "is moot where a decision on the issue is no longer relevant to  



                                     20  

                                                                                                       

resolving the litigation."                Because we affirm the superior court's decisions regarding  



                                                                                                                  

the evidentiary question and jury instructions, we affirm the jury's verdict; we therefore  



          19         "We apply our independent judgment in determining mootness because, as     



a matter of judicial policy, mootness is a question of law."                                   Akpik v. State, Office of  

Mgmt. & Budget , 115 P.3d 532, 534 (Alaska 2005) (citing  Ulmer v. Alaska Rest. &  

Beverage Ass'n , 33 P.3d 773, 776 (Alaska 2001)).  



          20  

                                               

                    Maness v. Daily , 184 P.3d 1, 8 (Alaska 2008) (quoting Clark v. State, Dep't  

of Corr., 156 P.3d 384, 387 (Alaska 2007)).  



                                                               -10-                                                         7140
  


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

                                                                         

do not need to decide whether the superior court correctly instructed the jury on damages  



because that issue is moot.   



                                                                                                          

          C.	       The  Superior  Court  Did  Not  Err  By  Refusing  To  Apportion  The  

                    Attorney's Fees And Costs Awards.21  



                              

                    Long contends that the attorney's fees and costs awards should have been  



apportioned  between  herself  and  her  insurer,  State  Farm.    This  contention  rests  on  



                                            

Long's misplaced assertion that State Farm was a claimant in the case because Long's  



                                                                                                      

potential recovery would be offset by the amount State Farm paid for Long's medical  



expenses.  State Farm informed Long by letter shortly after the accident that it would  



separately pursue reimbursement for medical expenses paid on Long's behalf.  State  



Farm requested that Long "take no action whatsoever in connection with the recovery  



of State Farm['s] claim against the adverse party or insurance carrier."   



                                                                                                                     

                    It is settled law that once an insurer requests that its insured not pursue the  



                                                                                  

insurer's claim against the tortfeasor for benefits paid, the insured has no right to present  



                22  

that claim.         State Farm's request that Long not pursue its claim prevented her from  



                                                                                                         

including the claim in her suit against Arnold.  State Farm's claim was therefore not  



litigated.    Accordingly,  the  superior  court  did  not  err  by  refusing  to  apportion  the  



attorney's fees and costs award between Long and State Farm.  



          21        Whether a superior court correctly applied the law in awarding attorney's   



fees is a question of law we review de novo.  Tagaban v. City of Pelican, 358 P.3d 571,   

575 (Alaska 2015) (quoting Beal v. McGuire , 216 P.3d 1154, 1162 (Alaska 2009)).  



          22  

                                                                                                        

                    Ruggles  v.  Grow ,  984  P.2d  509,  512  (Alaska  1999)  (explaining  that  a  

"consequence[]  flowing  from  the  fact  that  [the  insurer]  requested  [the  insured's]  

attorneys not to present its claim for medical expenses" is that the insured "lost the right  

                                                                                                    

to present the claim").  



                                                              -11-	                                                        7140
  


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

          D.	      It Was Error To Include City And Borough Of Juneau Sales Tax In                                  

                    The Attorney's Fees Award.23  



                   The  superior  court  awarded  Arnold  attorney's  fees  under  Alaska  Civil  



                                                                                       

Rule 82(b)(2).  Included in this award was $375 of City and Borough of Juneau sales tax  



                   

on  attorney  services  the  superior  court  found  to  be  "an  unavoidable  charge,  which  



                                                                                                       

mandatorily attaches to attorney services and is an inseparable part of the attorney fees  



cost to the client."  Long  objects to the tax's inclusion in the attorney's fees award  



                                                                

because "[t]here is no provision in the civil rules to award a Juneau based attorney sales  



tax on legal services for a trial in Sitka."   



                   Rule 82(b)(2) does not expressly permit including sales tax on attorney  



                                                                                      

services in an attorney's fee award.  This rule directs courts to award the prevailing party  



"30 percent of the prevailing party's reasonable and actual attorney's fees which were  



                                             

necessarily incurred" in cases which go to trial.  Rule 82(b)(2) clearly states that only a  



                      

percentage  of  a  party's  "actual  attorney's  fees"  will  be  awarded.    In  contrast,  for  



example, Alaska Civil Rule 79(f)(16) permits awarding prevailing parties only taxes  



                                    

incurred  in  connection  with  an  enumerated  necessary  cost.    Because  sales  taxes  on  



                        

attorney's fees are not actual attorney's fees and because Rule 82 does not otherwise  



                

explicitly include sales taxes on attorney's fees, it was error to include those taxes in  



Arnold's attorney's fees award.  



IV.	      CONCLUSION  



                                                                                                

                   For  the  reasons  discussed  above,  we  REVERSE  the  superior  court's  



attorney's fees award and REMAND for an award consistent with this opinion, but  



AFFIRM the superior court in all other respects.  



          23       See supra note 21.  



                                                            -12-	                                                         7140  


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

MAASSEN, Justice, with whom STOWERS, Chief Justice, joins, dissenting in part.  



                                                                               

                      I disagree with one aspect of the court's decision today:  that it was error  



                                                                                                             

for the superior court to include City and Borough of Juneau sales tax in Robert Arnold's  

attorney's fees when calculating his fee award under Alaska Civil Rule 82(b)(2).1                                                         The  



                                                                

superior court correctly observed that the sales tax "is an inseparable part of the attorney  



                                                             

fees cost to the client," and Rule 82, as reasonably interpreted, does not preclude it from  



consideration when the court makes a fee award.  



                      In my view, the "reasonable actual attorney's fees" that Arnold "necessarily  



                                                     

incurred" for purposes of Rule 82 included the sales tax; the attorneys were required by  



                                                                                                    

law to include it in their charges to the client, and the client became responsible for that  



incremental cost just as he did every other bit of overhead that added dollars to the  



                                           

attorneys' fees.  Rule 82 awards are intended to be compensatory (albeit only partially  



                              2  

                                                                                       

in the usual case).   A compensatory award should recognize the true cost of the legal  



services to the client.  



                                                                                                  

                      I acknowledge the contrast with Alaska Civil Rule 79(f)(16), which, as the  



                    3 

                                                                                                                             

court notes,  specifically allows "sales or other taxes necessarily incurred by the party  



in connection with a cost allowed in this subsection."  It is true that Rule 82 has no  



                                                                        

parallel provision.  But I cannot attribute the difference to a conscious choice by this  



           1          See Op. at 12.  



           2          Foster v. Prof'l Guardian Servs. Corp.                           , 258 P.3d 102, 111 (Alaska 2011)   



("Rule 82's primary purpose is to partially compensate a prevailing party for attorney's  

fees incurred in enforcing or defending the party's rights. . . .  Without the rule, the rights  

of   the   prevailing   party   would   be   less   completely   vindicated   because   of   the  

                                                                                                                    

uncompensated expense of litigation." (quoting State v. Native Vill. of Nunapitchuk, 156  

                                                                                         

P.3d 389, 398 (Alaska 2007))).  



           3          Op. at 12.  



                                                                     -13-                                                               7140
  


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

court, when it approved the rule, to preclude the superior court's consideration of the full   



amount of the attorney's fees that clients actually incur when the court is calculating a   



fee that will truly be compensatory.  



                         I would hold that the superior court did not abuse its discretion when it  



                                                                 

calculated  the  Rule  82  award  on  the  basis  of  Arnold's  attorney's  fees  without  first  



carving off the sales tax.  On only that issue, I dissent from today's opinion.  



                                                                            -14-                                                                       7140
  

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