Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. HDI-Gerling America Insurance Company v. Carlile Transportation Systems, Inc. (8/24/2018) sp-7277

HDI-Gerling America Insurance Company v. Carlile Transportation Systems, Inc. (8/24/2018) sp-7277

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

          corrections@akcourts.us.  



                     THE SUPREME COURT OF THE STATE OF ALASKA                                    



HDI-GERLING  AMERICA                                          )  

INSURANCE  COMPANY,  as                                       )    Supreme  Court  Nos.  S-16584/16604  

subrogee  of  Eggor  Enterprises,  Inc.,                      )  

                                                                                                                           

                                                              )    Superior Court No. 3AN-14-07190 CI  

                                                

                               Appellant and                  )  

                               Cross-Appellee,                                         

                                                              )    O P I N I O N  

                                                              )  

          v.                                                                                            

                                                              )    No. 7277 - August 24, 2018  

                                                              )  

                  

CARLILE TRANSPORTATION                                        )
  

                    

SYSTEMS, INC.,                                                )
  

                                                              )
  

                                              

                               Appellee and                   )
  

                               Cross-Appellant.               )
  

                                                              )
  



                                                                                                         

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

                                                                                        

                    Judicial District, Anchorage, Dani Crosby, Judge.  



                                                                                                       

                    Appearances:   Mark E. Wilkerson and Michelle Q. Pham,  

                                                                                                            

                    Preg  O'Donnell  & Gillett PLLC,  Seattle, Washington,  for  

                                                                                                              

                    Appellant/Cross-Appellee. Robert L. Richmond and Marc G.  

                                                                                                           

                    Wilhelm,   Richmond                  &     Quinn,   P.C.,   Anchorage,                  for  

                    Appellee/Cross-Appellant.  



                                                                                                      

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

                                         

                     and Carney, Justices.  



                                        

                    WINFREE, Justice.  


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

I.        INTRODUCTION  



                                                                                                                          

                    An insurance company, as subrogee of its trucking company client, sued  



                                                                                                                     

another trucking company for negligence after an accident between two truckers resulted  



                                                                                                                         

in the insurance company paying over $3.5 million in oil spill remediation costs.  After  



                                                                                                                            

a trial the jury determined that the other trucking company's driver was not negligent and  



returned a defense verdict.  The insurance company now appeals some of the superior  



                                                                                                                              

court's trial rulings.  Seeing no reversible error, we affirm the superior court's entry of  



         

final judgment.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                           

                    OnenightinFebruary2014 CarlileTransportation Systems,Inc. driver Bart  



Neal was driving a tractor-trailer southbound on the Dalton Highway.  Neal could not  



                                                                                                                             

steer properly at speeds above 35 miles per hour and decided to stop to put chains on his  



                                                                                                                    

tires,  referred  to  as  "chaining  up."                Neal  stopped  his  rig  in  the  roadway,  partially  



                                                                                                                            

blocking both traffic lanes, and, by his account, activated his flashers.   Neal did not  



                                          

deploy reflective triangles.  



                                                                                                                           

                    Meanwhile, south of where Neal was stopped, Eggor Enterprises, Inc.  



                                                                                                                           

driver Joe Seurer was hauling a load of fuel northbound.  By his account, Seurer saw  



                                                                                                                            

lights in the distance but could not determine what they were. He called on the radio but  



                                                                                                                                  

received no response, and he slowed his tractor-trailer from 50 to 35 miles per hour.  



                                                                                                                         

About three-quarters of a mile fromNeal, Seurer again saw lights and thought they might  



                                                                                                                

be from a pipeline maintenance truck stopped off the side of the road.  He did not see  



                                               

reflective triangles or flashers.  



                                                                                                                     

                    The road had an S-curve between Seurer and Neal.  Until Seurer rounded  



                                                                                                                 

the final curve, he did not realize Neal's rig was blocking the road.  Seurer applied his  



                                                                                                                        

brakes about 300 feet from Neal, avoiding a serious collision but causing Seurer's trailer  



                                                              -2-                                                        7277
  


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

to fall onto the side of the highway.                                                                     The trailer's fuel load spilled alongside the road.                                                                                                



Eggor Enterprises's insurer, HDI-Gerling American Insurance Company (HDI), paid                                                                                                                                                              



over $3.5 million in cleanup costs to remediate the spill.                                                                                                          



                    B.                 Proceedings  



                                       In October 2015 HDI sued Carlile for the remediation costs and other  

                                                                                                                                                                                                                                          



damages, asserting the spill was caused by Neal's negligence.  The superior court held  

                                                                                                                                                                                                                                             



a ten-day jury trial in September 2016.  

                                                                                                                   



                                       HDI's primary theory of the case was that Carlile was vicariously liable for  

                                                                                                                                                                                                                                                  



Neal's actions and that Neal was either common-law negligent or negligent per se for  

                                                                                                                                                                                                                                                 



violating 49 C.F.R.  392.22, a federal highway regulation that applies to commercial  

                                                                                                                                                                                                                

                      1   Section 392.22 provides that commercial drivers who stop for any reason other  

drivers.                                                                                                                                                                                                                                   

                                                                                                                                                                                                    2   and, "as soon as  

than a "necessary traffic stop" must immediately activate flashers                                                                                                                                                                                 

                                                                                                                                                                            



possible, but in any event within 10 minutes," deploy warning devices such as reflective  

                                                                                                                                                                                                                               

triangles.3  HDI introduced evidencetending toshowthat Neal had not activated flashers;  

                                                                                                                                                                                                                                  



Neal admitted to not deploying triangles.  

                                                                                                                         



                    1                  Negligence is a tort for which the plaintiff recovers for harm caused by the                                                                                                                              



defendant's breach of a duty of care to the plaintiff.                                                                                               Parks Hiway Enters., LLC v. CEM                                                       

Leasing, Inc.                         , 995 P.2d 657, 667 (Alaska 2000).                                                                       In common-law negligence the duty                                                             

owed is determined by case law, usually as a duty "to act as a reasonable person would                                                                                                                                                  

under the circumstances."                                                    Lyons v. Midnight Sun Transp. Servs., Inc.                                                                                   , 928 P.2d 1202,               

 1204 (Alaska 1996).                                           In negligence per se, however, duty and breach are established                                                                                            

when the defendant violates a statute or regulation and the defendant's conduct toward                                                                                                                                                

the plaintiff is "within the ambit of the statute or regulation in question."                                                                                                                                                  Cable v.   

Shefchik, 985 P.2d 474, 477 (Alaska 1999) (quoting                                                                                                     Osborne v. Russell                                     , 669 P.2d 550,                

 554 (Alaska 1983)).                 



                    2                  49 C.F.R.  392.22(a) (2018).  

                                                                                                        



                    3                 Id.   392.22(b)(1); id.  393.95(f).  

                                                                                                           



                                                                                                                         -3-                                                                                                                7277
  


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

                                                                                                                           

                    Carlile argued in the alternative that Neal was not negligent, or that Neal's  



                                                                                                               

negligence did not cause HDI's injury, or that Seurer was negligent and comparatively  



                                                                                                                               

at fault.  Carlile sought to show that Neal complied with section 392.22 by arguing that  



                                                                                                                    

it does not apply to chain-up stops lasting less than ten minutes.   Carlile introduced  



                                                                                                                                

evidence tending to show that Neal had activated flashers but conceded that he had not  



                               

deployed triangles.  



                                                                                                                                

                    Both parties presented evidence supporting their theories.  Much of the  



                                                                                                                                 

evidence was conflicting, but all witnesses - including Seurer and a former State of  



                                                                                                                          

Alaska compliance officer - agreed that commercial drivers did not have to deploy  



                                                                                                    

triangles when they stopped to chain up on the Dalton Highway.  



                                                                                                                          

                    Most  of  the  trial  proceeded  without  controversy,  but  during  Neal's  



                                                                                                                            

testimony he made two potentially prejudicial remarks in front of the jury.  Neal knew  



                                                                                                                        

Seurer by his radio call sign "Smokin' Joe," and during pretrial proceedings the superior  



                                                                                                                              

court  ordered  Carlile  to  refrain  from  referring  to  Seurer  by  this  name;  HDI  was  



                                                                                                                                  

concerned that the name would suggest to the jury that Seurer was a reckless driver.  



                                                                                                                             

                    Although  warned  not  to  say  "Smokin'  Joe"  during  testimony,  Neal  



                                                                                                                               

nevertheless said:  "So if you got to chain up, by the time I go out, put the reflectors out,  



                                                                                                                               

go  back,  chain  up,  and  then  go  back  out  and  get  the  reflectors  again,  under  this  



                                                                                                                          

circumstances, I probably would have been killed by Smokin' Joe when he come around  



                                                                                                                     

that corner." Thesuperior court called an immediatebenchconference, whichconcluded  



                                                                                                                                

with the court deciding:  "We'll let it go this time, but next time, if he says it again, I'll  



                                                                                   

say something."  HDI did not object to this course of action.  



                                                                                                       

                    A few minutes later, Neal used "Smokin' Joe" again:  



                                                                                                           

                    Q:	       Didn't I ask you about every conversation you had  

                                                                                         

                              with every person at the scene of that accident?  



                                                                -4-	                                                        7277
  


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

                                                                                                         

                    A:	       Yes,  and  I  believe  I  told  you  I  only  talked  to  two  

                              people.  



                                             

                    Q:	       Did you -  



                                                                 

                    A:        Smokin' Joe - or -  



                                                                                                                         

After  this  second  use,  the  superior  court  waited  until  the  jury  was  excused  before  



                                                                                                                              

admonishing Neal and Carlile. HDI did not object to this course of action, and there was  



                                                     

no third use of Seurer's radio call sign.  



                                                                                                                              

                    Carlile moved for a directed verdict after HDI rested its case, but that  



                                                                                                                         

motion was denied.  After the close of all the evidence, the parties agreed to a special  



                                                                                                                              

verdict form asking whether either Carlile or Eggor was negligent and whether that  



                                                                                                                

negligence caused HDI's injury.  The form did not distinguish between common-law  



                                                      

negligence and negligence per se.  



                                                                                                                         

                    HDI sought a negligence per se jury instruction based on section 392.22  



                                                                                                                   

and Neal's failure to use flashers or deploy triangles. As part of its proposed instruction,  



                                                                                                                                 

HDI requested that the superior court define "necessary traffic stop" in the regulation as  



                                                                                                                   

"a  stop  that  is  caused  by  (1)  an  official  traffic  control  device,  (2)  an  authorized  



                                                                                                                              

governmental  agent,  (3)  an  authorized  flagger,  or  (4)  to  avoid  other  traffic  on  the  



                                                                                                                      

roadway."   This grammatically challenged definition would have excluded chain-up  



                                                                                                                              

stops from being a necessary traffic stop, preventing the jury from finding that Neal had  



                             

complied with the regulation.  



                                                                                                                            

                    Carlileopposed the instruction, arguing that negligenceper sedidnot apply  



                                                                                                                        

in this case.   Carlile also opposed defining necessary traffic stop in section 392.22,  



                                                                                                                              

arguing alternatively that chain-up stops could qualify as necessary traffic stops or that  



                                                                           

the jury did not need the term defined for them.  



                                                               -5-	                                                        7277
  


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

                                   The superior court                                   determined that negligence per se could apply and                                                                               



decided to give a negligence per se instruction.  But the court did not define necessary                                                                                                                 



traffic stop for the jury, reasoning:                          



                                   I'm not going to tell them how to interpret that.                                                                          The [federal   

                                   regulation] doesn't tell them.                                                I'm going to leave that in the                                         

                                  jury's good hands.                                 The cases [offered by HDI in support of                                                              

                                   its definition] were state cases, if I recall correctly.                                                                                      They  

                                   were interesting, but I feel without a federal definition I'm                                                                                      

                                   not going to go that far in the instruction.                                                                  

                                                                                                                                                                                 4 and aninstruction  

Thefinaljury                       instruction provided thetext of                                                 section 392.22(a)-(b)(1)                                                            



that the jury must find negligence if Neal violated the regulation unless the violation was  

                                                                                                                                                                                                                         



excused, along with six ways a regulation violation would be excused.  Relevant to this  

                                                                                                                                                                                                                         



appeal,  one excuse the jury instruction listed was that Carlile's violation would be  

                                                                                                                                                                                                                           



excused if the law's meaning was obscure or unreasonable and if Carlile acted with  

                                                                                                                                                                                                                      



reasonable care in attempting to obey it.  The final instruction did not define necessary  

                                                                                                                                                                                                         

traffic stop or any other portion of the regulation.5  

                                                                                                     



                 4                 Section 392.22 also includes subsection (b)(2), providing rules for special                                                                                                  



circumstances.   The superior court removed this section as inapplicable based on the                                                                                                                                     

evidence presented at trial.                                            



                 5                 Jury Instruction 29 read:  

                                                                                      



                                                    The law of the State of Alaska is as follows:  

                                                                                                                                                   



                                   A person driving a commercial motor vehicle, or a company  

                                                                                                                                                                      

                                   whosebusinessinvolves theoperation of a commercial motor  

                                                                                                                                                                                 

                                   vehicle,  upon  a  highway  or  vehicular  way  or  area,  shall  

                                                                                                                                                                                  

                                   comply  with  the  regulations  relating  to  the  operation  or  

                                                                                                                                                                                         

                                   driving of commercial motor vehicles, adopted by the United  

                                                                                                                                                                              

                                   States  Department  of  transportation  and  contained  in  49  

                                                                                                                                                                               

                                   C.F.R. Part 392 (Driving of Commercial Motor Vehicles)  

                                                                                                                                                                      

                                   . . . .  

                                          

                                                                                                                                                                                               (continued...)  



                                                                                                              -6-                                                                                                    7277
  


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

5         (...continued)
  



                                                               

                    49 C.F.R. Part 392.22 is as follows:
  



                                                                                                   

          (a)	      Hazard        warning         signal      flashers.          Whenever           a
  

                                                                                          

                    commercial motor vehicleisstopped upon the traveled
  

                                                                                              

                    portion  of  a  highway  for  any  cause  other  than
  

                                                                                         

                    necessary  traffic  stops,  the  driver  of  the  stopped
  

                                                                      

                    commercial motor vehicle shall immediately activate
  

                                                                                                

                    the  vehicular  hazard  warning  signal  flashers  and
  

                                                                                     

                    continue  the  flashing  until  the  driver  places  the
  

                                                                                                

                    warning  devices  required  by  paragraph  (b)  of  this
  

                    section.
  



                                                                                                       

          (b)	      Placement of warning  devices - (1)  General rule.  

                                                                                           

                    Except as provided in paragraph (b)(2) of this section,  

                                                                                               

                    whenever a commercial motor vehicle is stopped upon  

                                                                                               

                    the traveled portion of a highway for any cause other  

                                                                                                    

                    than necessary traffic stops, the driver shall, as soon as  

                                                                                              

                    possible, but in any event within 10 minutes, place  

                                                                                                   

                    three bidirectional emergency reflective triangles in  

                                           

                    the following manner:  



                                     

                               . . . .  



                                                                                               

                    If you find that Carlile violated this law, then you must  

                                                                                                 

          find  that  Carlile  was  negligent,  unless  you  find  that  the  

                             

          violation is excused.  



                                                            

                    The violation is excused if:  



                                     

                               . . . .  



                                                                                  

          (6)	      the meaning of the law was obscure or unreasonable
  

                                                                                                    

                    and Carlile acted with reasonable care in attempting to
  

                              

                    obey it.
  



                                                                                                 

                    If you find that Carlile complied with this law, or that  

                                                                                                

          any  violation was excused, you may still find that it was  

                                                                                               

          negligent if you decide that a reasonable person would have  

                                                                                                     (continued...)  



                                                      -7-	                                                        7277
  


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

                                               The    jury    deliberated    and    quickly    requested    the    complete    text    of  



section 392.22.                                        After discussion with the parties, the superior court declined to provide                                                                                                                                                      



the complete text or any additional explanation.  The jury continued deliberations and  



returned a verdict for Carlile.                                                                           The special verdict form indicated that Carlile was not                                                                                                                                    



negligent; accordingly the rest of the answers were blank.                                                                                                                                                    



                                               HDI moved for a new trial, challenging the verdict as against the weight of                                                                                                                                                                                



evidence.   HDI argued that no excuses applied and that the jury should have found Neal                                                                                                                                                                                                         



negligent per se for failing to deploy triangles or activate flashers.                                                                                                                                                                HDI also argued that                                          



the weight of the evidence showed Neal was common-law negligent. The superior court                                                                                                                                                                                                            



denied HDI's motion and entered judgment for Carlile.                                                                                                                                                 



                                               HDI   appeals   the   superior   court's   handling   of   Neal's   "Smokin'   Joe"  



comments, negligence per se jury instructions, and denial of a new trial.                                                                                                                                                                                     Carlile cross-  



appeals the superior court's use of a negligence per se instruction and denial of Carlile's                                                                                                                                                                                       



directed verdict motion.                                                              



III.                    STANDARDS OF REVIEW                                                   



                                               We generally review the superior court's handling of prejudicial witness                                                                                                                                                               

                                                                                                                           6  But "[t]he failure to object to prejudicial remarks  

remarks for an abuse of discretion.                                                                                                                                     



and to move the court for a mistrial or for an admonition to the jury constitutes a waiver  

                                                                                                                                                                                                                                                                                      

of the objection."7  

                      



                                               Jury instructions involve questions of law to which we apply  

                                                                                                                                                                                                                                              

                                               our independent judgment.  When reviewing a trial court's  

                                                                                                                                                                                                                                         

                                               denial of a proposed instruction, our inquiry focuses upon  

                                                                                                                                                                                                                                               



                        5                      (...continued)
  



                                                                                                                                                                                                                                                                    

                                               taken precautions in addition to those required by these laws.
  



                        6                      See Otis Elevator Co. v. McLaney                                                                                        , 406 P.2d 7, 10 (Alaska 1965).                                                        



                        7                      Heacock v. Town                                              , 419 P.2d 622, 623 (Alaska 1966).                                                                   



                                                                                                                                                    -8-                                                                                                                                         7277
  


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

                            whether   the   instructions   given,   when   read   as   a   whole,  

                             adequately inform the jury of the relevant law.                                                       An error in           

                            jury  instructions  is  grounds  for  reversal  only  if  it  caused  

                            prejudice.   In evaluating whether there has been prejudicial                                             

                             error with regard to jury instructions, we put ourselves in the                                                           

                            position   of   the   jurors   and   determine   whether   the   error  

                                                                                                    [  ]  

                            probably affected their judgment.                                        8 



                             "[W]hether to grant or refuse a new trial 'rests in the sound discretion of  

                                                                                                                                                                                     

the trial court.' "9  

                                  



                             In reviewing the substance of a trial court's order denying a  

                                                                                                                                                           

                            new trial, we view the evidence in the light most favorable to  

                                                                                                                                                         

                            the non-moving party, and "will . . . reverse a decision to  

                                                                                                                                                        

                             deny a new trial [only] if the evidence supporting the verdict  

                                                                                                                                              

                            was so completely lacking or slight and unconvincing as to  

                                                                                                                                                         

                            make the verdict plainly unreasonable and unjust."[10]  

                                                                                                                         



IV.           DISCUSSION  



              A.             HDI Waived Objection To Neal's Potentially Prejudicial Remarks.  

                                                                                                                                                               



                             HDI argues for reversal because Neal twice referred to Seurer as "Smokin'  

                                                                                                                                                                     



Joe"  in  violation  of  the  superior  court's  pretrial  order.                                                                 HDI  contends  that  Neal  

                                                                                                                                                                              



intentionally made these comments to  cast Seurer  as a reckless driver  and  support  

                                                                                                                                                              



Carlile's comparative negligence argument.  

                                                                                                



              8              City of Hooper Bay v. Bunyan                                  , 359 P.3d 972, 978 (Alaska 2015) (footnotes                             



and internal quotation marks omitted) (quoting                                                     Thompson v. Cooper                          , 290 P.3d 393, 398-             

99 (Alaska 2012)).       



              9             Hunter  v.  Philip  Morris  USA,  Inc.,  364  P.3d  439,  447  (Alaska  2015)  

                                                                                                                                                                            

(quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002)).  

                                                                                                                                                      



              10            Id. (footnotes omitted) (first quoting Kava, 48 P.3d at 1173 (Alaska 2002);  

                                                                                                                                                                            

then citing id.; then quoting Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska  

                                                                                                                                                                         

2006)).  



                                                                                          -9-                                                                                 7277
  


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

                              HDI waived this argument by failing to request any contemporaneous                                                       



                                                               11  

action by the superior court.                                                                                                                                   

                                                                     After the first use of "Smokin' Joe," the superior court  



                                                                                                                                                                                                 

noted:  "We'll let it go this time, but next time, if he says it again, I'll say something."  



                                                                                                                                                                                     

HDI did not object to this course of action.  After the second use, the court waited until  



                                                                                                                                                                                            

the jury was excused before admonishing Neal and Carlile once more.   This was a  



                                                                                                                                                                                          

reasonable  course  of  action:                                       "The  trial  [court],  in  [its]  discretion,  is  best  able  to  



                                                                                                                                                                            

determine whether there was any intentional misconduct . . . and to evaluate the probable  

                                                                                                12  Here there was concern that admonishing  

                                                                                                                                                                   

impact of [such misconduct] upon the jury." 



Neal and Carlile in front of the jury could bring the issue to the jury's attention when it  

                                                                                                                                                                                            

may have been previously unnoticed.13                                                     The superior court decided to admonish Neal  

                                                                                                                                                             



outside of the jury's presence before using harsher remedies.  HDI did not object to this  

                                                                                                                                                                                        



course  of  action,  and  there  was  no  third  use  of  "Smokin'  Joe."                                                                               HDI  cannot  now  

                                                                                                                                                                   

complain of the superior court's handling of the remarks after failing to object at trial.14  

                                                                                                                                                                                  



               11            See Heacock v. Town                             , 419 P.2d 622, 623 (Alaska 1966) ("The failure to                                                            



object to prejudicial remarks and to move the court for a mistrial or for an admonition   

to the jury constitutes a waiver of the objection.").                               



               12             Otis Elevator Co. v. McLaney, 406 P.2d 7, 10 (Alaska 1965).  

                                                                                                                                                       



               13             Cf.  Parish  v.  State,  477  P.2d  1005,  1011  n.13  (Alaska  1970)  ("[T]he  

                                                                                                                                                                              

observation  has been  made that attorneys will frequently  refrain  from asking  for  a  

                                                                                                                                                                                            

limiting instruction simply because it serves no purpose other than to call attention to the  

                                                                                                                                                                                         

prejudicial evidence.").  

                          



               14            See Heacock, 419 P.2d at 623. We may review a waived argument for plain  

                                                                                                                                                                                     

error, which exists if "an obvious mistake has been made which creates a high likelihood  

                                                                                                                                                                         

that injustice has resulted."  Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981).  But  

                                                                                                                                                                                       

any supposed mistake here was not "obvious"; as explained above, admonition outside  

                                                                                                                                                                               

of the jury's presence was a reasonable course of action.  We therefore decline to find  

                                                                                                                                                               

that the superior court's chosen actions were plain error.  

                                                                                                                 



                                                                                           -10-                                                                                     7277
  


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

                   B.	                AnyPossibleErrorInFailing                                                                To Define "Necessary TrafficStop"                                                                          Was  

                                      Harmless.  



                                      HDI argues that the superior court erred by refusing to define "necessary                                                                                                          



traffic stop" in connection with its negligence per se instruction. HDI argues that section                                                                                                                                         



392.22  required Neal to deploy triangles if he was not making a necessary traffic stop,                                                                                                                                                  



and that, without a clarifying definition, the jury could have thought he was making a                                                                                                                                                              



necessary traffic stop based on an erroneous interpretation of the law.                                                                                                                                  HDI argues that                     



this "prejudicial ambiguity" in the instructions requires reversal for a new trial.                                                                                                                                                  



                                       Some authority supports HDI's position that a definition was required in                                                                                                                                   



this case.                   "[A] plaintiff is generally entitled to a jury instruction 'consonant with the                                                                                                                                    



                                                                                                                                                                                               15  

theory of [the] case' if the evidence supports the plaintiff's theory."                                                                                                                                                                           

                                                                                                                                                                                                      And the failure to  



                                                                                                                                                                                                                                        

give such an instruction is reversible error when the jury instructions as a whole allow  



                                                                                                                                        16  

                                                                                                                   

the verdict to rest on an erroneous legal theory. 



                                                                                                                                                                                                                                                   

                                      We  first  announced  this  rule  in  McKee  v.  State,  when  we  reversed  a  

                                                                                                                                                                                                                17   In that case  

                                                                                                                                                                                                                                            

conviction due to the superior court's failure to define an elemental term. 

McKee was charged  with  possessing a "concealed" weapon  for  carrying  a knife.18  

                                                                                                                                                                                                                                                           



McKee testified that he had the knife clipped onto his coat such that it was partially in  

                                                                                                                                                                                                      



viewand requested ajury instruction stating that "concealed"meant "completely hidden,  

                                                                                                                                                                                                                                   



                   15                 Parnell   v.   Peak   Oilfield   Serv.   Co.,   174   P.3d   757,   764   (Alaska   2007)  



(quoting  Clary Ins. Agency v. Doyle                                                                    , 620 P.2d 194, 201 (Alaska 1980)).                                               



                   16                 See Thompson v. Cooper, 290 P.3d 393, 401 (Alaska 2012); Parnell, 174  

                                                                                                                                                                                                                                             

P.3d at 764-65; McKee v. State, 488 P.2d 1039, 1043 (Alaska 1971).  

                                                                                                                                                                                   



                   17                 488 P.2d at 1042-43.  

                                                                         



                   18                 Id. at 1042.  

                                                       



                                                                                                                      -11-	                                                                                                               7277
  


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

                                                          19  

secreted, or screened from you."                               The superior court refused to give this, or any,                             



                                                                                                                                        20  

instruction defining "concealed about the person," and McKee was convicted.                                                                  We  



                                                                                                                                     

reversed,  first  holding  that  "a  weapon  is  concealed  if  it  is  hidden  from  ordinary  

                       21   We then held that a definition was necessary because "the jury might  

observation."                                                                                                                             



have believed McKee's version of the facts, yet have concluded erroneously that he  

                                                                                                                                                



could be found guilty under the terms of the statute if any portion of the knife was hidden  

                                                                                                                                         

from view."22            We explicitly rejected the argument, seemingly adopted by the superior  

                                                                                                                                      



court here and urged on us by Carlile, that the court did not need to give an instruction  

                                                                                                                                  

because the jurors could determine the disputed term's meaning themselves.23  Instead  

                                                                                                               



we announced the rule that "where [a term] is susceptible of differing interpretations,  

                                                                                                                          

only one of which is a proper statement of the law, an instruction must be given."24  

                                                                                                                                



                       The same rule conceivably could govern this appeal. The term "necessary  

                                                                                                                                  

traffic stop" first appeared in federal regulations in 1939, without any definition.25                                                       The  

                                                                                                                                              



term has not since been defined by the United States Supreme Court or any federal  

                                                                                                                                        



agency.  The term does not appear in any other regulations from the same period where  

                                                                                                                                          



the context is more clear.   It is not commonly used in everyday language.   And the  

                                                                                                                                               



            19         Id.  



           20          Id.  at   1040,   1042.  



           21          Id.  at   1042.  



           22          Id.  at   1042-43,   1043  n.26.  



           23          Id.  



           24          Id.  



           25          Motor  Carrier   Safety   Regulations   Revised,   4   Fed.   Reg.   2,294,   2,299  



(June  7,   1939).  



                                                                      -12-                                                                 7277
  


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

evidence at trial established that Alaska's trucking industry has given the terma meaning                                                                                 



almost completely opposite what HDI proposed at trial.                                                                          Given these facts, the term                        

necessary traffic stop is likely "susceptible of differing interpretations."                                                                                26  



                                                                                                                                                                          

                             Were we to apply McKee 's rule to this case, we could accordingly conclude  



that the superior court erred by declining to define necessary traffic stop.  But we find  



                                                                                                                                                                                   

it unnecessary to decide whether an instruction was required in this case because, even  



                                                                                                                                                                                 27  

                                                                                                                                                                                       no  

assuming  necessary  traffic  stop  means  generally  what  HDI  claims  it  means, 



reasonable jury could have found negligence per se on these facts.  

                                                                                                                                      



                             The jury was instructed that Carlile was excused from compliance with the  

                                                                                                                                                                                       



regulation if "the meaning of the law was obscure or unreasonable and Carlile acted with  

                                                                                                                                                                                    



reasonable  care  in  attempting  to  obey  it."                                                      The  evidence  at  trial  showed  without  

                                                                                                                                                                           



contradiction that drivers, experts, and regulators in Alaska think that reflective triangles  

                                                                                                                                                                           



are not required when chaining up; even Seurer testified that he did not think he needed  

                                                                                                                                                                              



to deploy triangles in that situation.   HDI does not contest this evidence on appeal,  

                                                                                                                                                                     



insteadconclusorilyassertingthat theregulation'smeaning "obviously"was not obscure  

                                                                                                                                                                             



to Carlile because it trained its drivers to follow the regulation. But this conclusion does  

                                                                                                                                                                                    



not follow; if HDI is correct and the regulation does not mean what Carlile thinks, the  

                                                                                                                                                                                       



Alaska trucking industry's certainty that it is correctly interpreting section 392.22 makes  

                                                                                                                                                                                



its meaning more obscure, not less. Given this unanimous testimony, no reasonable jury  

                                                                                                                                                                                     



could have found that the meaning of section 392.22 was not obscure or unreasonable  

                                                                                                                                        



               26            See McKee                , 488 P.2d at 1043.          



               27            We express no opinion whether a chain-up stop is a necessary traffic stop                                                                              



under the regulation. But we do note that HDI's proposed definition of necessary traffic                                                                                        

stop was clearly underinclusive; at minimum a necessary traffic stop must account for  

                                                                                                                               

traffic   controls   and   exigencies   involving   other   vehicles,  law   enforcement,   animals  

crossing the road, and other similarly required stops.  

                                                                                                       



                                                                                          -13-                                                                                    7277
  


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

and that Carlile acted with reasonable care in obeying the rule as Carlile understood it.                                                                                                                                                   



And because no reasonable jury could have found that Carlile was not excused, any                                                                                                                                              

potential error did not affect the jurors' verdict.                                                                             28  



                                                                                                                                                                                                                              

                                    HDI argues that we should not look at the evidence of excuse in this case  



                                                                                                                                                                                                                               

because Carlile had the burden of showing excuse and it did not "argue or present any  



                                                                                                                                                                                                                                

evidence that its failure to follow the regulation was excused."  It is true that Carlile had  

                                                                                   29  and that Carlile did not make excuse the focus of its  

                                                                                                                                                                                                                                   

the burden of showing excuse 



closing argument, choosing instead to argue that there was no violation.  But Carlile did  

                                                                                                                                                                                                                                 



present  uncontradicted  testimony  supporting  excuse,  and  the  jury  was  correctly  

                                                                                                                                                                                                               



instructed that Carlile was excused if the regulation was obscure and Carlile acted with  

                                                                                                                                                                                                                             



reasonable care in attempting to obey it.  And the jury was clearly interested in section  

                                                                                                                                                                                                                      



392.22's applicability to negligence per se; its first note to the court during deliberations  

                                                                                                                                                                                                       



was a request to see the complete text of the regulation.   Given these facts, we are not  

                                                                                                                                                       



persuaded  that Carlile's failure to  argue excuse  should determine the harmlessness  

                                                                                                                                                                                                     



question. We instead conclude that the error was harmless because the jury should have  

                                                                                                                                                                                                                             



applied the law of excuse to the uncontroverted testimony in this case and found that  

                                                                                                                                                                                                                               



Carlile was excused. A reasonable jury following the law as explained in the instructions  

                                                                                                                                                                                                          



could not have done otherwise.  

                                                         



                  28                See City of Hooper Bay v. Bunyan                                                            , 359 P.3d 972, 978 (Alaska 2015) ("In                                                        



evaluating whether there has been prejudicial error with regard to jury instructions, we                                                                                                                                         

put ourselves in the position of the jurors and 'determine whether the error probably                                                                                                                            

affected their judgment.' " (quoting                                                               Thompson v. Cooper                                       , 290 P.3d 393, 399 (Alaska                             

2012)));  see also Patterson v. Cox                                                          , 323 P.3d 1118, 1121 (Alaska 2014) ("Of course, if                                                                                     

no reasonable jury could have found for [the plaintiff] on his products liability claim, the                                                                                                                                     

superior court's omission would be harmless.").                                                  



                  29                See Ferrell v. Baxter, 484 P.2d 250, 266 (Alaska 1971) ("It is fair to put the  

                                                                                                                                                                                                                                 

burden of proving excuse upon the one who has violated the law in the first place.").  

                                                                                                                                                                                                              



                                                                                                               -14-                                                                                                         7277
  


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

               C.	            It Was Not An Abuse Of Discretion To Deny HDI's Motion For A New                                                                                     

                              Trial.  



                              HDI also argues that the judgment must be reversed because the superior                                                                      



 court failed to grant a new trial.                                    HDI asserts that the great weight of evidence required                                              



the jury to find negligence per se on this record, either for the failure to deploy triangles                                                                              



                                       30  

 or to use flashers.                        



                                                                                                                                                                                       

                             Whether to grant or deny a new trial "rests in the sound discretion of the  



                          31  

                                                                                                                                                                          

trial court."                    We will "reverse a decision to deny a new trial [only] if the evidence  



                                                                                                                                                                                  

 supporting the verdict was so completely lacking or slight and unconvincing as to make  



                                                                                                  32 

                                                                                                                                                                                       

the verdict plainly unreasonable and unjust."                                                           "If there is an evidentiary basis for the  



                                                                                                                           33  

                                                                                                                                                                                    

jury's decision, denial of a new trial must be affirmed."                                                                         HDI cannot meet this high  



burden.  



                                                                                                                                                                                     

                              First, as to the failure to deploy triangles, we already have concluded that  



                                                                                                                                                                           

 areasonable jury would have found Carlile's actions wereexcused based on theevidence  



                                                                                                                                                                                     

presented at trial.  The superior court did not abuse its discretion by refusing a new trial  



                                                                                                                                                                       

 on this point.   Second, as to the failure to use flashers, there was ample testimony  



                                                                                                                                                                                

 supporting the jury verdict. Neal testified that he used flashers. Neal testified that Seurer  



                                                                                                                                                                                     

 said he saw flashers.  A responder from Prudhoe Bay testified that Seurer said he saw  



               30             HDI  does  not  appeal  the  superior  court's  denial  of  a  new  trial  on  the  issue  



 of  common-law  negligence.  



               31            Hunter   v.   Philip   Morris   USA,   Inc.,   364   P.3d   439,   447   (Alaska   2015)  



 (quoting  Kava  v.  Am.  Honda  Motor  Co.,  48  P.3d   1170,   1173  (Alaska  2002)).  



               32            Id. (quoting Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska  

                                                                                                                                                                            

 2006)).  



               33            Kocurek v. Wagner, 390 P.3d 1144, 1151 (Alaska 2017) (quoting Mullen  

                                                                                                                                                                              

 v. Christianson, 642 P.2d 1345, 1348 (Alaska 1982)).  

                                                                                                      



                                                                                          -15-	                                                                                   7277
  


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

lights   in   the   distance   and   thought   they   were   pickup   trucks   with   their   flashers  on.   



Photographs taken at the scene suggested that the flashers were on.                                                                                                                                         This evidence,   



viewed in the light most favorable to Carlile, was not "so completely lacking or slight                                                                                                                                                  

and unconvincing as to make the verdict plainly unreasonable and unjust."                                                                                                                                                 34  



V.                 CONCLUSION  



                                      We AFFIRM the superior court's entry of final judgment for Carlile.  We  

                                                                                                                                                                                                                                               



therefore do not address Carlile's cross-appeal.  

                                                                                                  



                   34                 See  Hunter,  364  P.3d  at  447  (quoting  Hogg,   134  P.3d  at  352).  



                                                                                                                       -16-                                                                                                                            7277  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC