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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harrell v. Calvin (9/8/2017) sp-7197

Harrell v. Calvin (9/8/2017) sp-7197

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  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                                         



TRACY  HARRELL,  personal                                         )  

representative  of  the  Estate  of                               )          Supreme  Court  No.  S-16320  

WINNIE  SUE  WILLIS,  and  TRACY                                  )  

HARRELL  and  CINDY  KLOXIN,                                      )          Superior  Court  No.   1KE-15-00267  CI  

Individually,                                                     )  

                                                                                                  

                                                                  )          O P I N I O N  

                                 Appellants,                      )  

                                                                                                                        

                                                                  )          No. 7197 - September 8, 2017  

                      v.                                          )  

                                                                  )  

               

BRIAN CALVIN,                                                     )  

                                                                  )  

                                 Appellee.                        )  

                                                                  )  



                                                                                                                  

                                    

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

                                                                                                    

                      Judicial District, Ketchikan, Trevor Stephens, Judge.  



                                                                                                               

                      Appearances:  Michael A. Stepovich and Sandra K. Rolfe,  

                                                                                                                           

                      Stepovich & Vacura Law Office, Fairbanks, for Appellants.  

                                                                                                              

                      Daniel T. Quinn and C. Cody Tirpak, Richmond & Quinn,  

                                                 

                      Anchorage, for Appellee.  



                                                                                                             

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                            

                      and Carney, Justices.  



                                             

                      MAASSEN, Justice.  


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

I.        INTRODUCTION  



                    A woman died in a house fire.  Her two adult children, having concluded  

                                                                                                                  



that the cause of the fire was a neighbor's electric fish smoker, brought suit both on  

                                                                                                                     



behalfof their mother's estate and as individuals, asserting claims for wrongfuldeath and  

                                                                                                                            



negligent infliction of emotional distress.  The superior court concluded that their suit  

                                                                                                                   



was barred by two-year statutes of limitations and granted summary judgment for the  

                                                                                                                            



neighbor.   The court also awarded the neighbor attorney's fees under Alaska Civil  

                                                                                                                         



Rule 82  and  entered  judgment jointly and  severally  against the estate and  the  two  

                                                                                                                           



individuals.  

                    



                    The plaintiffs appeal.  They argue that the superior court erred in granting  

                                                                                                                     



summary judgment because the statutes of limitations were tolled by the "discovery  

                                                                                                                



rule."  They also argue that the court abused its discretion in assessing attorney's fees  

                                                                                                                           



against them as individuals and in making them jointly and severally liable for the  

                                                                                                                            



judgment.  We conclude, however, that the superior court properly applied the statutes  

                                                                                                                      



of limitations and that it did not abuse its discretion in its attorney's fees award.  We  

                                                                                                                           



therefore affirm the judgment.  

                               



II.       FACTS AND PROCEEDINGS  

                                 



          A.        Facts  



                    Two families shared a duplex in Ketchikan.  In the upper unit lived Brian  

                                                                                                                         



Calvin with his wife and child; in the lower unit lived Tracy Harrell with her husband,  

                                                                                                                   



Klyn Kloxin, and her mother, Winnie Sue Willis.  On July 11, 2013, the duplex was  

                                                                                                                



destroyed by fire, and Willis was killed.  

                                                             



                    The  South  Tongass  Volunteer  Fire  Department  and  the  Alaska  State  

                                                                                                                         



Troopers responded to the fire and found Calvin, Klyn Kloxin, and Cindy Kloxin,  

                                                                                                                     



Willis's other daughter, at the scene. Klyn Kloxin told investigators he had smelled fish  

                                                                                                                            



                                                              -2-                                                        7197
  


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

smoking the night before "and assumed that Mr. Calvin was smoking fish," and Calvin  

                                                                                                                          



confirmed that he had been operating his smoker.  According to Calvin, he finished at  

                                                                                                                    



10:30 p.m., unplugged the smoker, removed the trays, "and as far as he knew everything  

                                                                                                                    



was done."   He told the Troopers that when he left for work at approximately five  

                                                                                                                             



o'clock the next morning nothing was "out of the ordinary."  

                                                                             



                    Robert Plumb, the State Deputy Fire Marshall, noted that the most severe  

                                                                                                                          



fire damage was in the upper northwest side of the duplex.  In the same corner of the  

                                                                                                                               



building he found the remains of a Big Chief fish smoker in a pile of debris.  Plumb  

                                                                                                                         



interviewed Harrell, Calvin, and Klyn Kloxin on July 12, the day after the fire.  Klyn  

                                                                                                                            



repeated that he had smelled smoking fish the evening of July 10 and again the morning  

                                                                                                                       



of July 11.  Calvin again confirmed that he had smoked fish on his deck on the evening  

                                                                                                                        



of July 10 but saw nothing amiss when he left for work the next morning.  Klyn told  

                                                                                                                              



another investigator, also on July 12, that "the upstairs neighbor [Calvin] had previously  

                                                                                                                    



dumped ashes from the smoker on the ground outside" but he was not sure if this  

                                                                                                                              



happened on July 10.  

                                  



                    Besides thesmoker, theinvestigators continued to actively considerseveral  

                                                                                                                          



different causes, including an electrical fire originating near the roof or in the laundry  

                                                                                                                        



room, a discarded cigarette, and "the possibility that someone intentionally set this fire."  

                                                                                                                                     



In January 2014 Harrell received a copy of Plumb's official report, which included  

                                                                                                                      



Calvin's fish smoker as one of the fire's potential causes.   In February Harrell was  

                                                                                                                             



appointed personal representative of Willis's estate and retained a lawyer, who in turn  

                                                                      



retained a private fire investigator in June.  The investigator concluded in October that  

                                                                                                                              



it was "more probable th[a]n not" that "the fire originated on the second floor exterior  

                     



deck" and that Calvin's "Big Chief smoker" was the cause.  

                                                                                           



                                                               -3-                                                         7197
  


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

             B.          Proceedings  

                                                                          1 filed a complaint in superior court on July 20,                   

                         Harrell and Cindy Kloxin 



2015, two years and nine days after the fire. Harrell brought survival and wrongful death                                                                



                                                                          2  

                                                                                                                                                       

 claims on behalf of her mother's estate,                                    and she and Kloxin brought individual claims  



                                                                                                                                                       

 for negligent infliction of emotional distress.  The complaint alleged that "Brian Calvin  



                                                                                                                                                              

was negligent in the use and operation of his Big Chief Smoker" and "[a]s a result of his  



                                                                                                                                                            

negligence a fire started," which was "the direct and proximate cause of Winnie Sue  



                    

Willis'[s] death."  



                                                                                                                                                 

                         Calvin raised a statute of limitations defense and moved for summary  



                                                                                                                                                               

judgment on that ground.   Harrell and Kloxin argued in response that the statute of  



                                                                                                                                                               

 limitations was tolled by the discovery rule and that "there [were] genuine issues of  



                                                                                                                                              

material fact as to when . . . [they] had sufficient information to alert a reasonable  



                                                                          

person" to a potential cause of action.  



                                                                                                                                                                  

                         The superior court concluded that a "two year statute of limitations . . .  



                                                                                                                                                             

 applie[d] to" all of Harrell's and Kloxin's claims.   It rejected the argument that the  



                                                                                                                                                      

 limitations period was tolled under the discovery rule, relying on evidence that Harrell  



                                                                                                                                                             

 and Kloxin knew by July 12, 2013, the day after the fire, that Willis had died in the fire  



                                                                                                                                                              

 and that Calvin's fish smoker "was under active consideration as a possible cause" of the  



                                                                                                                                                              

 fire.  According to the superior court, these facts would have put a reasonable person on  



             1           For clarity we refer to Cindy Kloxin hereafter as "Kloxin"; we refer to                                                               



Harrell's husband as "Klyn."             



             2           Under AS 09.55.570, the decedent's personal representative has a cause of  

                                                                                                                                                               

 action for pre-death pain and suffering. N. Slope Borough v. Brower, 215 P.3d 308, 312  

                                                                                                                                                            

 (Alaska2009). UnderAS09.55.580, thedecedent's personalrepresentativemay recover  

                                                                                                                                                     

 damages for wrongful death for the benefit of the decedent's dependents, if there are any,  

                                                                                                                                                           

 and otherwise for the benefit of the estate.  

                                                                                 



                                                                               -4-                                                                       7197
  


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

 "inquiry notice" of a potential cause of action.                                                                The court accordingly granted summary                                      



judgment to Calvin.                                 



                                 Calvin moved for attorney's fees under Rule 82(b)(2) as the prevailing                                                                                   



party.   The court granted Calvin's motion and also ordered that Harrell, Kloxin, and the                                                                                                                   



 estate be jointly and severally liable for the attorney's fees award.                                                                                             



                                 Harrell, Kloxin, and the estate appeal, arguing that the superior court erred                                                                                         



 in its ruling on the statutes of limitations and                                                                     abused  its  discretion in its award of                                                



 attorney's fees.                       



 III.            STANDARDS OF REVIEW                              



                                                                                                                                                             3  

                                 We review a grant of summary judgment de novo.                                                                                                                                 

                                                                                                                                                                   "When reviewing a  



                                                                                                                                                                                                       

 grant of summary judgment, our duty is to determine whether there was a genuine issue  



                                                                                                                                                                                                         

 of material fact and whether the moving party was entitled to judgment on the law  



                                                                                    4  

                                                                                                                                                                                   

 applicable to the established facts."                                                  "Ordinarily, summary judgment is an inappropriate  



                                                                                                                                                                5  

                                                                                                                                                                                            

 means of ascertaining when a statute of limitation commences."                                                                                                       "Where, however,  



                                                                                                                                                                                                       

 there exist uncontroverted facts that determine when a reasonable person should have  



                                                                                                                                                                                  6  

                                                                                                                                                                                      

been on inquiry notice 'we can resolve the question as a matter of law.' " 



                 3               Hurn   v.   Greenway,   293   P.3d   480,  483  (Alaska   2013)   (citing   State   v.  



 Sandsness, 72 P.3d 299, 301 (Alaska 2003)).                                                                    



                 4               Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska 1990) (citing  

                                                                                                                                                                                                   

Mine  Safety  Appliances Co. v.  Stiles, 756  P.2d 288,  291 (Alaska 1988); Zeman  v.  

                                                                                                                                                                                                              

Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985)).  

                                                                                                                                               



                 5               Id.  (citing  Mine  Safety,  756  P.2d  at  292;  Russell  v.  Municipality  of  

                                                                                                                                                                                                             

Anchorage , 743 P.2d 372, 375-76 & n.11 (Alaska 1987)).  

                                                                                                                            



                 6               Id. (quoting Mine Safety, 756 P.2d at 292).  

                                                                                                                             



                                                                                                      -5-                                                                                              7197
  


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

                         "The superior court's decision to award attorney's fees is reviewed for                                                            

abuse of discretion and is overturned only where the award is manifestly unreasonable."                                                                         7  



IV.	         DISCUSSION  



                                                                                                                                                             

             A.	         The Superior Court Did Nor Err In Its Application Of The Statutes Of  

                         Limitations.  



                                                                                                                                                             

                         Statutes  of  limitations  are  "found  and  approved  [of]  in  all  systems  of  



                                                    8  

                                                                                                                                                 

enlightened jurisprudence."                              Their purposes are to encourage plaintiffs to promptly  



                                                        9  

                                                                                                                                                         

investigate and file civil suits                           and to afford defendants "the right to be free of stale  



                                                                                                                                    10  

                                                                                                                                          As properly  

claims" after "time . . . prevail[s] over the right to prosecute them." 



                                                                                                                                     

applied, statutes of limitations thus "protect defendants and the courts from" litigation  



                                                                                                                                                   

"in which the search for truth may be seriously impaired by the loss of evidence, whether  



                                                                                                                                             

by death or disappearance of witnesses, fading memories, disappearance of documents,  



                           11  

                                

      

or otherwise." 



             7            Williams  v. GEICO Cas. Co., 301  P.3d   1220,   1229  (Alaska  2013)  (citing  



DeNardo  v.  Cutler,   167  P.3d  674,  677-78  (Alaska  2007)).  



             8           United   States   v.   Kubrick,  444   U.S.   111,   117   (1979)   (quoting   Wood   v.  



Carpenter,   101  U.S.   135,   139  (1879)).  



             9           Haakanson  v.  Wakefield Seafoods, Inc.,  600  P.2d  1087,  1090 (Alaska  

                                                                                                                                                   

 1979).  



             10          Kubrick,   444   U.S.  at  117   (quoting   Order   of   R.R.   Telegraphers   v.   Ry.  



Express  Agency,  321  U.S.  342,  349  (1944)).   



             11          Id.  (citing  United  States  v.  Marion,  404  U.S.  307,  322  n.14  (1971);  Burnett  



v. N.Y.   Cent.   R.R.   Co.,   380   U.S.   424,   428   (1965);   Chase   Sec.   Corp.   v.  Donaldson,  

325  U.S.  304,  314  (1945);  Mo.,  Kan.,  &  Tex.  Ry.  Co.  v.  Harriman  Bros.,  227  U.S.  657,  

672  (1913);  Bell  v.  Morrison,  26  U.S.  (1  Pet.)  351,  360  (1828)).  



                                                                              -6-	                                                                      7197
  


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

                        We have adopted a multi-part test to determine when a statute                                                 of limitations   



                                                                                             12  

begins to run and whether its running can be tolled.                                                                                                

                                                                                                  It begins to run in all cases when  

                                                  13   "[A] cause of action accrues when a person discovers, or  

                                                                                                                                                          

                                

a cause of action "accrues." 



reasonably should have discovered, the existence of all the elements of the cause of  

                                                                                                                                                          

action."14          A person reasonably should know of a cause of action when she is put on  

                                                                                                                                                         



"inquiry notice," that is, when she "has sufficient information to prompt an inquiry into  

                                                                                                                                                       

the cause of action."15  

                                           



                         Some injuries, like air crashes, do not generally occur absent negligence or  

                                                                                                                                                           



wrongful conduct; in such cases the plaintiff has "an affirmative duty" at the time of  

                                                                                                                                                          



injury "to investigate  all potential causes of action before the statute of limitations  

                                                                                                                                          

expires."16   But if a plaintiff "makes a reasonable inquiry" within the limitations period  

                                                                                                                                                  



and that inquiry "does not reveal the elements of the cause of action" in time for the  

                                                                                                                                                        



plaintiff to sue, then "the limitations period is tolled until a reasonable person [would]  

                                                                                                             



            12          See John's Heating Serv. v. Lamb                              (John's Heating II               ), 129 P.3d 919, 923-          



24 (Alaska 2006).                   



            13          See, e.g., AS 09.10.070 (stating that certain claims may not be brought  

                                                                                                                                                

"unless the action is commenced within two years of the accrual of the cause of action").  

                                                                                                                                               



            14          John's Heating II, 129 P.3d at 923 (citing Cameron v. State, Alaska Power  

                                                                                                                                                   

Auth., Inc. , 822 P.2d 1362, 1366 (Alaska 1991)).  

                                                                                           



            15          Id.  (citing Cameron, 822 P.2d at 1366); see also Gefre v. Davis Wright  

                                                                                                                                                 

 Tremaine, LLP, 306 P.3d 1264, 1275 (Alaska 2013) ("[T]he inquiry-notice date, rather  

                                                                                                                                                    

than the actual-notice date, is generally the date from which the statutory period begins  

                                                                                                                                                  

to run." (citing Waage v. Cutter Biological Div. of Miles Labs., Inc., 926 P.2d 1145, 1148  

                                                                                                                                                     

(Alaska 1996); Cameron, 822 P.2d at 1366)).  

                                                                                     



            16          Palmer v. Borg-Warner Corp., 818 P.2d632, 634 (Alaska 1990) (emphasis  

                                                                                                                                            

in original) (citing Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 292 (Alaska  

                                                                                                                                               

 1988)).  



                                                                            -7-                                                                     7197
  


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

discover[]   actual   knowledge   of"   her   claim,   or   "would  again   be   prompted"   to  



                   17  

investigate.            



                      Applying these principles to this case, we agree with the superior court's  

                                                                                                                                    



conclusion that the complaint was not timely filed.  Harrell and Kloxin were on inquiry  

                                                                                                                                   

notice of their cause of action at least by July 12, 2013 - the day after the fire.18  

                                                                                                                             



                      Harrell  and  Kloxin  agree  that  the  limitations  period  governing  their  

                                                                                                                    

wrongful death claim is two years,19  and they do not take issue with the superior court's  

                                                                                                                                    



conclusion  that  their  remaining  claims  were  also  subject  to  a  two-year  limitations  

                                                                                                                             

period.20         The  superior  court  did  not  identify  the  date  on  which  it  believed  these  

                                                                                                                                      



limitations periods began to run, but it concluded that it must have been before  July 20,  

                                                                                                                                          



2013.  The court found that Harrell and Kloxin "had enough information" before this  

                                                                                                                                         



date "to alert a reasonable person in [their] position that [they] had a potential cause of  

                                                                                                                                            



action . . . and that [their] injuries may be connected to Mr. Calvin's conduct."  It listed  

                                                                                                                                       



a number of undisputed facts to support this conclusion:   there was a fire, and the  

                                                                                                                                          



           17         John's Heating II            , 129 P.3d at 924 (quoting                 John's Heating Serv. v. Lamb            



(John's Heating I            ), 46 P.3d 1024, 1031-32 (Alaska 2002)).                 



           18         We recognize that the inquiry notice analysis may apply differently to two  

                                                                                                                                          

plaintiffs with differing levels of access to the relevant information.  But Harrell and  

                                                                                                                                         

Kloxin do not argue that the superior court erred in attributing the same knowledge to  

                                                               

both of them, so we likewise treat them together.  

                                                                                   



           19         AS 09.55.580(a), "Action for wrongful death," provides in relevant part:  

                                                                                                                                                 

"The action shall be commenced within two years after the death."  

                                                                                                                  



           20         Under AS 09.10.070(a)(2), "a person may not bring an action . . . for  

                                                                                                                                        

personal injury or death . . . unless the action is commenced within two years of the  

                                                                                                                                          

accrual of the cause of action."  See Maness v. Gordon, 325 P.3d 522, 525 n.11 (Alaska  

                                                                                                                                   

2014) (explaining that AS 09.10.070(a) applies to "an emotional distress claim"); Estate  

                                                                                                                                     

of Thompson v. Mercedes-Benz, Inc., 514 P.2d 1269, 1272 n.8 (Alaska 1973) (noting  

                                                                                                                                   

applicability of AS 09.10.070 to survival claim).  

                                                                      



                                                                     -8-                                                              7197
  


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

potential causes of any fire include negligence and arson; a "limited number of people"                                                                                                                                                                                                                                                       



had "regular access" to the duplex, and Calvin was among that number; Harrell knew                                                                                                                                                                                                                                                                     



 Calvin had been smoking fish the night before the fire; and Harrell knew from her                                                                                                                                                                                                                                                                              



 discussions with fire investigators on July 12, including information provided by herself                                                                                                                                                                                                                                                         



 and her husband, that Calvin's smoker was "under active consideration" as a cause of the                                                                                                                                                                                                                                                                          



 fire.   A two-year period that began on July 12, 2013, expired on July 12, 2015, and the                                                                                                                                                                                                                                                                         



 complaint filed on July 20 was time-barred.                                                                                                                                                



                                                          Harrell and Kloxin argue that the superior court misapplied the discovery                                                                                                                                                                                                   



rule.    They contend that "[o]ne of the essential elements of a cause of action is the                                                                                                                                                                                                                                                                         



 identity of the tortfeasor," and that they did not have enough information to suspect                                                                                                                                                                                                                                                                                           



 Calvin until after July 20, 2013.                                                                                                      As noted above, the superior court identified a number                                                                                                                                             



 of undisputed facts that contradict this argument, including their own contemporary                                                                                                                                                                                                                               



knowledge, relayed to the authorities, about Calvin's fish-smoking activities. But in any                                                                                                                                                                                                                                                                       



 event, under the discovery rule a plaintiff need not have actual knowledge of any element                                                                                                                                                                                                                                                    



 of her cause of action for the limitations period to run; she need only have enough                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                           21           As we have said  

 information to prompt a reasonable person to investigate further.                                                                                                                                                                                                                                                                                           



before, "the inquiry notice date, rather than the date when the inquiry should have  

                                                                                                                                                                                                                                                                                                                                                         



produced knowledge of the elements of the cause of action, [is] the date from which the  

                                                                                                                                                                                                                                                                                                                                                                  

 statutory period" runs.22  

                                                                                                         



                             21                          John's Heating II                                                           , 129 P.3d at 923-24 (quoting                                                                                                Cameron v. State, Alaska                                                        



Power Auth., Inc.                                                           , 822 P.2d 1362, 1366 (Alaska 1991)).                                                                                              



                             22                           Cameron, 822 P.2d at 1366.  Determining the date of inquiry notice often  

                                                                                                                                                                                                                                                                                                                                                         

 "requires a 'fact-intensive' analysis."  Reasner v. State, Dep't of Health & Soc. Servs.,  

                                                                                                                                                                                                                                                                                                                   

 Office of Children's Servs., 394 P.3d 610, 614 (Alaska 2017) (quoting Ranes & Shine,  

                                                                                                                                                                                                                                                                                                                                                    

LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 509 (Alaska 2015)).  "We have  

                      

therefore cautioned that summary judgment should only be used to resolve the time at  

                                                                                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                                                  -9-                                                                                                                                                                      7197
  


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

                         The only exception to this general rule applies when a plaintiff makes a                                                             



reasonable inquiry but still fails to acquire enough information "within the statutory                                                         

                                                                                                                                                      23    In  

period at a point where there remains a reasonable time within which to file suit."                                                                         

                                                                                                                                                    24   But  

such cases the limitations period may run from a later "actual notice" date instead.                                                                      

                                                                                                                                       



Harrell and Kloxin do not allege that they failed to discover the elements of their cause  

                                                                                                                                                      



of action within the statutory period; indeed, they admit that in October 2014, roughly  

                                                                                                                                                  



a year and three months after the fire, Harrell received a private fire investigator's report  

                                                                                                                                                     



concluding that "the cause of the fire was [Calvin's] Big Chief smoker."  At that point  

                                                                                                                                                       



there were at least nine months remaining in the two-year limitations period for Harrell  

                                                                                                                                                   



and Kloxin to prepare and file their lawsuit; they have not attempted to explain why this  

                                                                                                                                                          



was not a "reasonable time" under the circumstances.   Since they acquired not just  

                                                                                                                                                         



inquiry notice but actual notice within the limitations period while "a reasonable time  

                                                                                                                                                        



 [remained] within which to file suit," the superior court properly declined to use the  

                                                                                                                                                          



"actual notice" exception to extend the limitations period.  

                                                                                                              



                         Harrell and Kloxin argue that even under "[t]he inquiry notice" rule, as  

                                                                                                                                                  



properly applied, the superior court erred because they were not on inquiry notice until  

                                                                                                                                                        



July 29, 2013, when Harrell and her husband received a letter from Allstate informing  

                                                                                                                                              



            22(...continued)  



                                                                                                                                                         

which a statute of limitations commences when 'there exist uncontroverted facts that  

                                                                                                                                                                  

determinewhen areasonable person should have' begun an inquiry to protect her rights."  

                                                                                                                                                           

Id. (quoting Palmer v. Borg-Warner Corp., 818 P.2d 632, 634 (Alaska 1990)).  And we  

                                                                                                                                                            

have reversed summary judgment on statute of limitations grounds where there was "a  

                                                                                                                    

genuine factual dispute" regarding the date of inquiry notice.  Id.  But there is no such  

                                                                                                                                                            

factual dispute here - uncontroverted evidence shows that Harrell and Kloxin knew or  

                                                                                                                                     

should have known of their claims against Calvin on or before July 12, 2013.  



            23           Cameron, 822 P.2d at 1367.  

                                                                   



            24           Id.  



                                                                            -10-                                                                      7197
  


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

 them of the existence of a claim against its insured, Carl Thompson, the building's                                                                                                                                                                                                                                                                                                                                                                                               



 owner.    According to Harrell and Kloxin, this was the "first possible indication that                                                                                                                                                                                                                                                                                                                                                                                                                                   



 someone may have been negligent."                                                                                                                                                                                              But the letter does not discuss the fire or its cause,                                                                                                                                                                                                                        



 and it provides no factual basis for owner liability; it merely informs the reader that a                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 claim has been filed and identifies the adjuster who is handling the claim.                                                                                                                                                                                                                                                                                                                                                                                                                     It does   



 nothing to dilute the inquiry notice Harrell and Kloxin already had about their potential                                                                                                                                                                                                                                                                                                                                                                                                    



 claims against Calvin based on his use of the fish smoker.                                                                                                                                                                                                                                                       



                                                                                   To reiterate the principal facts relevant to that notice:                                                                                                                                                                                                                                                                                Harrell and Kloxin                                                           



 knew on July 11, 2013, that there had been a fire and that it had caused Willis's death.                                                                                                                                                                                                                                                                                                                                                                                                                                                               



 They knew that Calvin had been smoking fish on his upstairs deck the night before.                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 They claim they had no reason yet to suspect he was negligent, but on July 12, the day                                                                                                                                                                                                                                                                                                                                                                                                                                      



 after the fire, both Harrell and her husband, in interviews with the fire chief and the fire                                                                                                                                                                                                                                                                                                                                                                                                                                  



 marshal, discussed at length Calvin's fish smoker in the context of the fire and its                                                                                                                                                                                                                                                                                                                                                                                                                                               



possible   causes.     The   fire   marshal   noted   in   his  report  that   Klyn   Kloxin,   Harrell's  



 husband, "had smelled an odor he associated with fish smoking" the evening before the                                                                                                                                                                                                                                                                                                                                                                                                                                           



 fire and that he "faintly smelled the same odor in the morning." The fire chief noted that                                                                                                                                                                                                                                                                                                                                                                                                                                   



 he discussed with Klyn the location of the fish smoker, Calvin's "ash disposal process,"                                                                                                                                                                                                                                                                                                                                                                                                  



 the "storage area below where the smoker would have been located," and the smell of   



 fish smoking the night before the fire.                                                                                                                                                                                                 He noted that Harrell told him she had once seen                                                                                                                                                                                                                                



 "ash in a striped pattern on the ground" below the smoker "like it had fallen though                                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                 25  

 cracks of the porch."                                                                                                                      



                                          25                                       In addition to the content of these post-fire interviews, Calvin directs our                                                                                                                                                                                                                                                                                                                                                                



 attention to an article about the fire in the July 16, 2013 print edition of the                                                                                                                                                                                                                                                                                                                                                                                                   Ketchikan  

Daily News                                                              , headlined "Smoker might be fire's cause" and reporting that the deputy fire                                                                                                                                                                                                                                                                                                                                                                          

 marshal believed the "Big Chief electric smoker" to be one of two "likely sources" of the                                                                                                                                                                                                                                                                                                                                                                                                                                        

 fire. The article did not factor into the superior court's decision because the court found                                                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                                                                                                                                                                                    (continued...)  



                                                                                                                                                                                                                                                               -11-                                                                                                                                                                                                                                                     7197
  


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

                                                                   What Harrell and Kloxin knew about the circumstances of the fire on                                                                                                                                                                                                                                                                                          



July 12, 2013, as recorded in Harrell's and her husband's conversations with the fire                                                                                                                                                                                                                                                                                                                                       



marshal and the fire chief, was enough to focus a reasonable person's attention on                                                                                                                                                                                                                                                                                                                                              



 Calvin's fish smoker as a possible cause of the fire and on the possibility that Calvin was                                                                                                                                                                                                                                                                                                                                



negligent.  On these undisputed facts we must conclude that the superior court did not                                                                                                                                                                                                                                            



 err.    Because Harrell and Kloxin were on inquiry notice of a possible claim against                                                                                                                                                                                                                                                                                                                    



 Calvin by at least July 12, 2013, their complaint - filed over two years later - was not                                                                                                                                                                                                                                                                                                                                      



timely under the applicable statutes of limitations.                                                                                                                                            



                                  B.	                              The Superior Court Did Not Abuse Its Discretion When It Determined  

                                                                   That The Individual Plaintiffs Were Jointly And Severally Liable For                                                                                                                                                                                                                                                                                     

                                                                   Attorney's Fees.   



                                                                   The   second   issue   on   appeal   concerns   the   superior   court's   award  of  



 attorney's fees.                                                                The court awarded fees jointly and severally against the individual                                                                                                                                                                                                                                      



plaintiffs and Willis's estate, which Harrell and Kloxin claim was error in two respects.                                                                                                                                                                                                                                                                                                                                                        



First, they argue that the court erred in assessing fees against the                                                                                                                                                                                                                                                  individuals because they                                                                            



could not be liable for the estate's fees and "the substance of their individual claims                                                                                                                                                                                                                                                                                                                     



 [was] never litigated." Second, they argue that joint and several liability is the exception,                                                                                                                                                                                                                                                                                              



not the rule, and that in imposing such liability in this case the court failed to properly   



weigh the fact that the individual claims were merely secondary to the estate's claim.                                                                                                                                                                                                                                                                                                                                                           



We conclude, however, that the superior court did not abuse its discretion.                                                                                                                                                                                                                                                   



                                 25(...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                

no evidence that Harrell or Kloxin had actually seen it.  We put no weight on the article  

                                                                                                                                                                                                                                                                                                                                                                                                  

because the evidence on which the court did rely was sufficient to support its decision.  



                                                                                                                                                                                                              -12-	                                                                                                                                                                                                    7197
  


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

                               1.	           The superior court did not abuse its discretion in awarding fees                                                                              

                                             against the individual plaintiffs.                                             



                              The representatives and statutory beneficiaries of a decedent's estate are                                                                                     



liable for costs and fees only if they litigate in a personal rather than "representative"                                                                     



                    26  

capacity.                                                                                                                                                                      

                          Here, Harrell sued on behalf of the estate for "injuries and suffering sustained  



                                                                                                                                                                         

by . . . Willis" before her death. But Harrell and Kloxin also brought claims individually  



                                                                                   

for negligent infliction of emotional distress.  



                                                                                                                                                                                                

                              Harrell and Kloxin argue that these claims did not make them parties in  



                                                                                                                                                                                                      

their  individual  capacities  because  the  success  of  their  emotional  distress  claims  



                               

depended on the success of the estate's wrongful death claim, which they characterize  



                                                                                                               

as the "main" claim.  They contend that "[t]here is no independent right to recover for  



bystander emotional distress; rather, the claim [depends on] success of the main claim  



                               

for breach of duty."  



                                                                                                                                                                                                  

                              We have held, however, that negligent infliction of emotional distress is a  

                                                                                                                              27      "Unlike claims for  loss of  

                                                                                                                                                                                               

"personal" rather  than a "derivative" cause of action. 



consortium,  claims  for  emotional  distress  concern  injuries  that  the  claimants  have  

                                                                                                                                                                                        

suffered directly, rather than derivative injuries" based solely on injury to another.28  

                                                                                                                                                                                                      



Because Harrell and Kloxin brought their emotional distress claims in their personal  

                                                                                                                                                                                 

capacities, they may be held liable for costs and fees.29  

                                                                                                                              



               26	            Zaverl v. Hanley                      , 64 P.3d 809, 822 & n.45 (Alaska 2003).                                        



               27             State Farm Mut. Auto. Ins. Co. v. Lawrence                                                          , 26 P.3d 1074, 1079 (Alaska                     



                                                                                                                                                               

2001); see also Allstate Ins. Co. v. Teel, 100 P.3d 2, 5 (Alaska 2004).  



               28             Lawrence, 26 P.3d at 1079.  

                                                                                              



               29             See Zaverl, 64 P.3d at 822.  

                                                                                             



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

                                Harrell and Kloxin further argue that "[a] review of [Calvin's] billing                                                                                        



 records . . .         shows that all of [counsel's] time was expended in defending against the                                                                                                         



 main claim [regarding the] statute of limitations."                                                                       This seems correct.                                 But the same   



 limitations period applies to all Harrell's and Kloxin's claims, including their individual                                                                                            

                                                                                                                          30  Calvin's counsel relied on a single  

 claims for negligent infliction of emotional distress.                                                                                                                                          



 legal theory - that the plaintiffs were on "inquiry notice" before July 20, 2013 - to  

                                                                                                                                                                                                           



 defend against all the claims.  It was not unreasonable for the superior court to attribute  

                                                                                                                                                                                            



 counsel's efforts equally to the estate and individual claims.  

                                                                                                                                                  



                                We conclude that the superior court did not abuse its discretion in awarding  

                                                                                                                                                                                          



 attorney's fees against the individual plaintiffs.  

                                                                                           



                                2.	             The superior court did not abuse its discretion in awarding fees  

                                                                                                                                                                                                       

                                                jointly and severally.  

                                                                              



                                Harrell and Kloxin also argue that the superior court erred in awarding fees  

                                                                                                                                                                                                       



jointly and severally rather than apportioning fees among the three plaintiffs - the two  

                                                                                                                                                                                                       



 individuals and the estate.  Whether to award joint and several fees is "within the trial  

                                                                                                                                                                                                      

 court's discretion,"31  

                                                                                                                                                                                            

                                                   and we have affirmed joint and several fee awards where multiple  

                                                                                                                                               32  or where "the same issue  

                                                                                                                                                                                                    

plaintiffs "united" and "alleg[ed] the same cause of action," 

 was involved in each claim."33  

                                                                           



                30              See   AS 09.10.070(a)(2) ("[A] person may not bring an action . . . for                                                                                            



personal injury or death . . . unless the action is commenced within two years of accrual                                                                                                      

 of the cause of action."); AS 09.55.580(a) ("The action shall be commenced within two                                                                                                                 

 years after the death . . . .").                        



                31              In re Soldotna Air Crash Litig., 835 P.2d 1215, 1223 (Alaska 1992) (citing  

                                                                                                                                                                                                 

 Stepanov v. Gavrilovich, 594 P.2d 30, 36 (Alaska 1979)).  

                                                                                                                                            



                32              Stepanov, 594 P.2d at 36.  

                                                                                       



                33              Hughes v. Foster  Wheeler Co., 932 P.2d 784, 792 (Alaska 1997) (quoting  

                                                                                                                                                                                            

                                                                                                                                                                                (continued...)  



                                                                                                   -14-	                                                                                            7197
  


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

                                                Harrell   and   Kloxin   argue   that   the   parties'   motion   practice   before   the  



 superior court in this case, and the court's decision on summary judgment, "had nothing                                                                                                                                                                                                   



 at all to do with the substance or validity of the individual claims."                                                                                                                                                                                      While this is a                                     



 correct statement of fact, as an argument against a fee award it is unavailing.                                                                                                                                                                                                                     The  



 superior court did not reach the "substance or validity" of any claim because it granted                                                                                                                                                                                                  



 summary judgment on statute of limitations grounds.                                                                                                                                                       The same limitations period                                                        



 applied to all claims, and Calvin's motion work in the superior court thus addressed both                                                                                                                                                                                                             



the estate's and the individuals' claims.                                                                                                        Calvin's defense to all these claims involved                                                                                        



 "the same issue":                                               namely, whether the plaintiffs were on inquiry notice of a possible                                                                                                                                                 



 claim against Calvin before July 20, 2013.                                                                                                                 



                                                We will reverse an award of attorney's fees only if the award is manifestly                                                                                                                                                      

                                                  34  We conclude that the award of joint and several liability was reasonable  

unreasonable.                                                                                                                                                                                                                                                                   



because Calvin's single dispositive defense applied to the entire litigation. We therefore  

                                                                                                                                                                                                                                                                                       



 affirm the superior court's fee award.  

                                                                                                              



V.                       CONCLUSION  



                                                The judgment of the superior court is AFFIRMED.  

                                                                                                                                                                                        



                        33(...continued)  



                                                                                                                                                                                                     

Moses v. McGarvey, 614 P.2d 1363, 1367 n.5 (Alaska 1980)).  



                        34                       Williams v. GEICO Cas. Co.                                                                             , 301 P.3d 1220, 1229 (Alaska 2013) (citing                                                                                            



DeNardo v. Cutler                                                   , 167 P.3d 674, 677-78 (Alaska 2007)).                                                                            



                                                                                                                                                     -15-                                                                                                                                            7197
  

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