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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brent McCormick v. Chippewa, Inc. and Louis Olson (3/20/2020) sp-7435

Brent McCormick v. Chippewa, Inc. and Louis Olson (3/20/2020) sp-7435

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



BRENT  McCORMICK,                                                )  

                                                                 )    Supreme  Court  No.  S-16619  

                                Appellant,                       )  

                                                                                                                                 

                                                                 )    Superior Court No. 3AN-11-12131 CI  

           v.                                                    )  

                                                                                          

                                                                 )    O P I N I O N  

                                       

CHIPPEWA, INC. and LOUIS                                         )  

OLSEN,                                                                                                     

                                                                 )    No. 7435 - March 20, 2020  

                                                                 )  

                                Appellees.                       )  

                                                                 )  



                                                                                                              

                                            

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

                                                                                            

                     Judicial District, Anchorage, Dani Crosby, Judge.  



                     Appearances:  Gerald W. Markham, Kodiak, for Appellant.  

                                                                                                                 

                     Laura  L.  Farley,  Farley  &  Graves,  P.C.,  Anchorage,  for  

                     Appellees.  



                                                                                                       

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

                                           

                      and Carney, Justices.  



                                                  

                     BOLGER, Chief Justice.  

                                                        

                      STOWERS, Justice, dissenting.  



I.         INTRODUCTION  



                                                                                                                         

                     An injured seaman initiated settlement negotiations with his employer's  



                                                                                                                                         

insurance  company  for  "policy  limits."                            Under  the  insurance  policy  there  was  a  



                                                                                                                                       

per-occurrence coverage limit.   During negotiations, counsel for the seaman and the  



                                                                                                                                

insurance company discussed the terms of the settlement over a phone call; they provide  


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

                                                                                                                     

inconsistent  accounts  of  which  issues  were  addressed  on  the  call.                                   The  seaman's  



                                                                                                                               

counsel's affidavit asserts that he raised the issue of the number of occurrences and the  



                                                                                                                           

parties agreed to leave it unresolved. However, the insurance company's counsel offers  



                                                                                                                  

conflicting testimony, alleging that the parties did not discuss the number of occurrences  



                                   

during the phone call.  



                                                                                                                     

                     Shortly  after  this  phone  call,  the  seaman  and  the  insurance  company  



                                                                                                                              

reached  a  purported  settlement  agreement.                          The  seaman  filed  suit  to  enforce  the  



                                                                                                                              

purported  settlement  agreement  for  policy  limits  based  on  three  occurrences.                                        The  



                                                                                                                               

insurance company filed for summary judgment, asserting that the agreement was for  



                                                                                                                               

policy limits of a single occurrence.  The superior court granted summary judgment for  



                                                                                                                    

the insurance company, concluding that its interpretation of the purported settlement  



                                     

agreement was correct.  



                                                                                                                               

                     The  seaman  argues  that  the  superior  court  abused  its  discretion  on  



                                                                                                                      

evidentiary and discovery issues and erred by granting the insurer's motion for summary  



                                                                                                                        

judgment.   We identify no abuse of discretion.   But there is an issue of fact barring  



                                                                                                                   

summary judgment due to the contradictory accounts of the phone call.  A reasonable  



                                                                                                                               

person could discern a genuine factual dispute on a material issue because this phone call  



                                                                                                                   

could either (1) provide extrinsic evidence of the meaning of the settlement agreement,  



                                                                                                                                

or (2) indicate that there was no meeting of the minds on an essential term, and thus no  



                                                                                                                              

enforceable agreement was formed. We therefore conclude that summary judgment was  



                       

inappropriate.  



                                  

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                         

                    In  August  2007  Brent  McCormick  was  injured  while  working  aboard  



                                                                -2-                                                        7435
  


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                                                                                                                                                   1  

F/VC                 HIPPEWA, owned by Chippewa, Inc.                                                                                                   McCormick filed a lawsuit against Chippewa                                                                                  



                                                                                                                                                                                                     2  

and Louis Olsen, the vessel's captain, in August 2010.                                                                                                                                                    



                                                In   January   2011   McCormick   began   settlement   negotiations   with  

                                                                                                                                                                                                                                                                                                    

                                       3       Chippewa had an insurance policy with a $500,000 per-occurrence limit,  

Chippewa.                                                                                                                                                                                                                                                                                            



from which the "[c]osts and expenses . . . of investigating and/or defending any claim"  

                                                                                                                                                                                                                                                                                                



would be deducted.  McCormick's attorney, Gerald Markham, sent Chippewa an offer  

                                                                                                                                                                                                                                                                                                       



to settle the lawsuit "for any and all injuries occurring or arising out of Mr. McCormick's  

                                                                                                                                                                                                                                                                       



2007 employment on the F/V C 

                                                                                                                      HIPPEWA   . . . in exchange for the 'policy limits' " of                                                                                                                              



Chippewa's insurance policy. This                                                                                             settlementofferdescribedtwo                                                                                accidents McCormick  



suffered during this time.  Chippewa responded, accepting McCormick's "demand for                                                                                                                                                                                          



payment of the remaining policy limits."                                                                                                           Chippewa indicated that the policy had a face                                                                                                       



limit of $500,000, of which approximately $370,000 remained.                                                                                                                                                                            



                                                In March 2011 Markham called Chippewa's attorney, Laura Farley, to                                                                                                                                                                                               



discuss the settlement.                                                            The following day he sent Chippewa a letter "to follow up on                                                                                                                                                    



 [their] conversation of yesterday wherein [he] indicated to [Chippewa] that [he] viewed                                                                                                                                                                                                       



the policy limits in the . . . policy to be different than [the prior] estimate."                                                                                                                                                                                                 Markham  



suggested, though, that Farley stated that it was the insurer's "intention . . . in accepting                                                                                                                                                                                         



 [McCormick's] 'policy limits' offer to pay 'limits' what ever they may be." McCormick                                                                                                                                                                                       



                        1                       McCormick v. Chippewa, Inc.                                                                                 , (McCormick I  ), 330 P.3d 345, 347 (Alaska                                                                                     



2014). As both the present case and                                                                                             McCormick I    were appealed following a motion for                                                                                                                           

summary judgment, we describe the facts in the light most favorable to McCormick, the                                                                                                                                                                                                                         

non-moving party, and assume them to be true.                                                                                                                                  See Leahy v. Conant                                                           , 436 P.3d 1039,                       

 1043 (Alaska 2019).                               



                        2                       McCormick I, 330 P.3d at 347.   We refer to both Chippewa and Olsen  

                                                                                                                                                                                                                                                                                                  

collectively as "Chippewa."  

                                                                                                       



                        3                       Id .  



                                                                                                                                                       -3-                                                                                                                                             7435
  


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

attached    a    signed    settlement    agreement,    releasing    Chippewa    from    liability    "in  



consideration of the remaining policy limits available."                                                                                                                                                                                                      McCormick then dismissed his                                                                                                       



lawsuit.   



                                                              In April Chippewa sent McCormick a letter identifying the initial policy                                                                                                                                                                                                                                          



limit, theexpenses Chippewa had accrued,and theremaining policylimit                                                                                                                                                                                                                                                                     of$424,040.05   



after expenses, which would be paid to McCormick. McCormick did not respond to this                                                                                                                                                                                                                                                                                                           



letter.    



                               B.                             Proceedings In                                                            McCormick I   



                                                              In November 2011 McCormick filed a new lawsuit, seeking enforcement                                                                                                                                                                                                                    



of the purported settlement agreement. In a cross-                                                                                                                                                                               motion for partial summary judgment,                                                                                            



McCormick clarified that he believed there had been three "occurrences" under the                                                                                                                                                                                                                                                                                                              



policy, which would triple the available policy limits. Chippewa filed its own motion for                                                                                                                                                                                                                                                                                                         



enforcement of the settlement based on the prior calculations for a single policy limit.                                                                                                                                                                                                                                                                                                                         



The superior court converted Chippewa's motion to a motion for summary judgment.                                                                                                                                                                                                                                                                                                                                 



McCormick requested an Alaska Civil Rule 56(f) continuance to allow further discovery                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                                       4  

into Chippewa's intent regarding the settlement agreement.                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                  The court did not grant  



                                                                                                                                                                                                                                                                                                                                                                              

McCormick's requested Rule 56(f) continuance. Instead, it granted Chippewa's motion  



                                                                                                                                                                                                                                                                                                                                                                                 

 for summary judgment, concluding that the parties agreed to settle for only a single  



                                                           

policy limit.  



                               4                              Rule 56(f) allows a court to "order a continuance to permit affidavits to be                                                                                                                                                                                                                                                          



obtained or depositions to be taken or discovery to be had" when a party opposing a                                                                                                                                                                                                                                                                                                                     

motion for summary judgment cannot "present by affidavit facts essential to justify the                                                                                                                                                                                                                                                                                                         

party's opposition."   



                                                                                                                                                                                                 -4-                                                                                                                                                                                     7435
  


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

                      McCormick appealed and we concluded that the superior court abused its                                              



                                                                                             5  

discretion by denying McCormick's Rule 56(f) motion.                                                                                  

                                                                                                 We remanded so that "the  



                                                                                                                             

 superior  court  [would]  have  the  opportunity  to  consider  McCormick's  discovery  

requests."6  



           C.         Proceedings Following McCormick I  

                                                                                    



                      Following  this  court's  remand,  Chippewa  provided  McCormick  with  

                                                                                                                                     



Alaska  Civil  Rule  26(a)(1)  disclosures.                              These  disclosures  included  Chippewa's  

                                                                                                                         



correspondence with counsel on the case between December 2010 and November 2011,  

                                                                                                                                     



when McCormick filed the present lawsuit.  Chippewa then filed a motion for summary  

                                                                                                                               



judgment, arguing that it never intended the settlement to involve multiple policy limits.  

                                                                                                                                               



 Several months later McCormick filed a motion to compel discovery based on discovery  

                                                                                                                              



requests he filed in 2012.  

                                            



                      In October 2015 the superior court held a discovery hearing, in part to be  

                                                                                                                                          



"absolutely clear what it is that's being requested."   McCormick maintained that he  

                                                                                                                                         



 should have access to documents created after the lawsuit was filed in November 2011.  

                                                                                                                                               



Following  this  hearing  the  superior  court  denied  McCormick's  motion  to  compel  

                                                                                                              



discovery.  The court noted that Chippewa had provided McCormick with documents  

                                                                                                                            



"from the day the case was assigned to Chippewa's counsel until eight months after  

                                                                                                                                      



 settlement," and found that this disclosure was sufficient.  

                                                                                               



                      InDecember2015Chippewalearned that McCormick hadhiredanattorney  

                                                                                                                                 



to serve as an expert witness on insurance claim processing.  Chippewa filed a motion  

                        



           5          McCormick  I,  330  P.3d  at  351-52.  



           6          Id .  at  352  n.14.  



                                                                    -5-                                                                  7435  


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to exclude this expert testimony and report, and in June 2016 the superior court granted  



                                                      

Chippewa's motion.  



                                                                                                                                                                                                                   

                                  The  superior  court  issued  an  order  granting  Chippewa's  motion  for  



                                                                                                                                                                                                                         

summary judgment in December 2016.  It concluded that the parties had entered into a  



                                                                                                                                                                                                                      

binding settlement agreement, and noted that "[t]he only outstanding issue is how to  



                                                                                                                                                                             

interpret that agreement as to the phrase 'remaining policy limits.' "  



                                                                                                                                                                                                                  

                                  The  court  concluded  that  "remaining  policy  limits"  referred  to  the  



                                                                                                                                                                                                     

remainder of a single limit of $500,000, not the sum of multiple occurrences that each  



                                                                                                                                                                                                         

have a $500,000 limit. The court reached this conclusion because the settlement applied  



                                                                                                                                     HIPPEWA, . . . in exchange for the                                            

"to all claims, arising out of incidents on the F/V C 



 'remaining policy limits' of the $500,000 insurance policy."                                                                                              It also relied on extrinsic                



evidence, including Chippewa's attorney's exposure analysis letter, which the court                                                                                                                           



viewed   as   "demonstrat[ing]   that   Chippewa   was   not   considering   exposure   above  



$500,000." The court additionally noted that McCormick's settlement offer did not state                                                                                                                          



that   multiple   occurrences   might   be   involved.     Finally   the   court   recognized   that  



Chippewa's acceptanceletterincluded                                                              anestimateoftheremaining                                              policy limitsthat                         was  



below $500,000.                              



                                  The   court   concluded   that   a   second   basis   for   upholding   Chippewa's  



interpretation   of   the   settlement   agreement   was   that   McCormick   had   ratified   this  



interpretation.   According to the court, McCormick demonstrated his intent to abide by                                                                                                                              



Chippewa's interpretation of "remaining policy limits" by failing to timely object to                                                                                                                                 



Chippewa's March 2011 estimate of the remaining policy limit, and then subsequently                                                                                                        



signing the settlement agreement and dismissing his lawsuit.                                                                                                 



                                  In   March   and   April   of   2017   the   superior   court   awarded   Alaska   Civil  



Rule 82 attorney's fees to Chippewa.                                                            McCormick appeals.                                      



                                                                                                          -6-                                                                                                  7435
  


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

III.	        DISCUSSION  



                          McCormick argues that the superior court abused its discretion when it  

                                                                                                                                                                    



denied his motion to compel discovery and granted Chippewa's motion excluding his  

                                                                                                                                                                 



expert witness testimony and report.  He additionally argues that the parties agreed to a  

                                                                                                                                                                     



settlement  that  would  obligate  Chippewa  to  pay  multiple  policy  limits.                                                                      Thus,  he  

                                                                                                                                                                 



contends that the superior court's conclusion that the parties agreed to a single policy  

                                                                                                                                                           



limit settlement is erroneous. He also asserts that the superior court applied the incorrect  

                                                                                                                                                      



standard when assessing attorney's fees.   Finally, he attempts to incorporate several  

                                                                                                                                                         



arguments by reference to briefing in a prior case.  

                                                                                                  



                          While we find no abuse of discretion in the superior court's treatment of the  

                                                                                                                                                                 



motion to compel and motion to exclude, we conclude that the superior court overlooked  

                                                                                                                                                 



the existence of a factual dispute that would preclude summary judgment on either of the  

                                                                                                                                                                 



bases  used  to  uphold  Chippewa's  interpretation  of  the  settlement  agreement.                                                                           We  

                                                                                                                                                               



therefore remand for further proceedings.  We decline to address McCormick's other  

                                                                                                                                                             



arguments because they were waived.  

                                                                           



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

                                                                                                                                                    

                          McCormick's Motion To Compel.  

                                                                               



                          McCormick argues that the superior court abused its discretion by not  

                                                                                                                                                                

compelling  Chippewa  to  disclose  its  documents  created  after  November  2011.7  

                                                                                                                                                                        



Reviewing  the  entirety  of  the  record,  we  cannot  say  the  superior  court  abused  its  

                                                                                                                                                                  



             7            McCormick suggests that the superior court failed to follow our mandate                                                      



in  McCormick I    to allow him to conduct discovery.                                              See id      . at 351-52.           He also suggests     

that the superior court abused its discretion by failing to allow an                                                          in camera           inspection  

of the documents generated after November 2011.                                                     McCormick's contention is, at its                             

core, a concern about the superior court's denial of                                                      the motion to compel, and we                           

therefore address that concern directly.                    



                                                                                -7-	                                                                         7435
  


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

                                                                                                                        8  

 discretion   by   denying   this   discovery   request.     McCormick   began   negotiating  a  



 settlement with Chippewa in February 2011. The parties came to a purported agreement                                                                                                       



in March 2011, and in April Chippewa provided a calculation of what it believed to be                                                                                                                           



the remaining policy limit.                                         



                                 Although   we   have   stated   that  "[d]iscovery   rules   are   to   be   liberally  

                             9 we cannot say it was manifestly unreasonable for the superior court to limit  

 construed,"                                                                                                                                                                                               



 discovery here.  To "give effect to the intent behind the agreement," we have instructed  

                                                                                                                                                                                              



the superior court to consider "the surrounding circumstances at the time the contract  

                                                                                                                                                                                                 

was negotiated."10  Chippewavoluntarily disclosed its insurancecompany's internal file,  

                                                                                                                                                                                                             



its adjuster's file, and all communications related to the negotiations generated between  

                                                                                                                                                                                                 



December 2010 and November 2011.  This time period encompasses the negotiations  

                                                                                                                                                                                       



between McCormick and Chippewa, as well as a full eight months after the parties  

                                                                                                                                                                                                     



purportedly agreed to settle for the "remaining policy limits."  We cannot find that the  

                                                                                                                                                                                                              



 superior  court  abused  its  discretion  by  limiting  discovery  to  documents  created  

                                                                                                                                                                                                  



 surrounding the settlement negotiations.  

                                                                    



                 8               "We review a trial court's discovery rulings . . . for abuse of discretion."                                                                            



Madonna v. Tamarack Air, Ltd.                                                , 298 P.3d 875, 878 (Alaska 2013) (citing                                                           Peterson v. Ek                     ,  

 93 P.3d 458, 467 (Alaska 2004)).                                                        "A superior court abuses its discretion 'when the                                                                    

 decision on review is manifestly unreasonable.' "                                                                                 Lingley v. Alaska Airlines, Inc                                                 .,  

 373 P.3d 506, 511 (Alaska 2016) (quoting                                                                  Ranes & Shine, LLC v. MacDonald Miller                                                     

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



                 9               Olivera v. Rude-Olivera, 411 P.3d 587, 591 (Alaska 2018) (citing Douglas  

                                                                                                                                                                                                 

v. Glacier State Tel. Co., 615 P.2d 580, 593 (Alaska 1980)).  

                                                                                                                                                       



                 10              Peterson v. Wirum, 625 P.2d 866, 870, 870 n.7 (Alaska 1981) (emphasis  

                                                                                                                                                                             

 added) (second quotation quoting Pepsi Cola Bottling Co. v. New Hampshire Ins. Co.,  

                                                                                                                                                                                                           

407 P.2d 1009, 1013 (Alaska 1965)).  

                                                                                              



                                                                                                        -8-                                                                                              7435
  


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

                B.	            The   Superior   Court  Did   Not   Abuse   Its   Discretion   By Excluding  

                               McCormick's Expert Witness Testimony And Report.                                                                    



                               McCormick attempted to introduce the expert witness testimony and report                                                                                      



of an attorney to support his claim that Chippewa must have known that the settlement                                                                                             



was for multiple occurrences.                                         McCormick argues that the superior court's exclusion of                                                                        



this testimony and report was premature as he "was only offering it in support" of his                                                                                                             



                                                                                       11  

attempts to further expand discovery.                                                         



                                                                                                                                                                                                      

                               But McCormick's interpretation of the superior court's exclusion order is  



                                                                                                                                                                                              

too broad.  Chippewa's motion sought only to prevent the testimony and report from  



                                                                                                                                                                                                  

being  "considered  by  [the  superior  court]  in  opposition  to  Chippewa's  motion  for  



                                                                                                                                                                                                 

summary judgment" or "admitted at trial." Its motion did not address the possibility that  



                                                                                                                                                                                                

the testimony would relate to discovery. Read in context the superior court's order only  



                                                                                                                                                                                                  

prohibited McCormick from admitting the testimony or proffering the report of his  



                                                                                                                                                                                 

expert witness in opposition to Chippewa's motion for summary judgment.  Therefore,  



McCormick's argument that the superior court's order was errantly issued is mistaken  



                                                                                                                                                   

and we cannot otherwise say that the superior court abused its discretion.  



                                                                                                                                                                                                    

                C.	            Chippewa  Was  Not  Entitled  To  Summary  Judgment  Because  A  

                                                                                                              

                               Genuine Issue of Material Fact Exists.  



                                                                                                                                                                                                   

                               "[T]he only questions to be answered at the summary judgment stage are  



                                                                                                                                                                                                

whether  a  reasonable  person  could  believe  the  non-moving  party's  assertions  and  



                                                                                                                                                                                                     

whether a reasonable person could conclude those assertions create a genuine dispute as  



                                             12  

          

to a material fact."                                                                                                                                                                      

                                                    Summary judgment is thus inappropriate if a reasonable person  



                11             We review the admission or exclusion of evidence for abuse of discretion.                                                                          



State v. Sharpe                     , 435 P.3d 887, 892 (Alaska 2019).                                                 



                12             Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 520 (Alaska 2014).  

                                                                                                                                                                                                            



                                                                                                  -9-	                                                                                        7435
  


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

                                                                                                                13  

 could discern a genuine factual dispute on a material issue.                                                        This "decision is not based              



 on whether the court actually believes the evidence or whether it believes the moving                                                                    

party has better evidence."                         14  



                                                                                                                                                       

                          Here the superior court erred by granting Chippewa's motion for summary  

                                                                                                                    15  The record indicates that  

                                                                                                                                                                  

judgment despite such a genuine dispute as to a material fact. 



the expressed intent of the parties regarding an essential term of the purported settlement  

                                                                                                                                                     



 agreement  is  in  dispute.                         The  evidence  in  this  case  suggests  two  different  factual  

                                                                                                                                                           

 scenarios.16               One  possibility  is  that  both  McCormick's  attorney,  Markham,  and  

                                                                                                                                                                



 Chippewa's attorney, Farley, understoodthat thepurported settlementagreement was for  

                                                                                                                                                                    

 a single policy limit of $500,000 regardless of the number of injury occurrences.17  

                                                                                                                                                                          



However, a reasonable person could also believe McCormick's assertions that there was  

                                                                                                                                                                  



no meeting of the minds on a material term - the policy limits - and therefore there is  

                                                                                                                                                                      



 a genuine factual dispute as to whether the parties formed an enforceable settlement  

                                                                                                                                                    



                      18  

 agreement.                



             13           Id.    



             14           Id.   



             15           As  we  explained  in  Christensen,  "Summary  judgment  does  not  require  the  



non-moving   party   to   prove   factual   issues   according   to   the   applicable   evidentiary  

 standard,  and  does  not  allow  trial  judges  to  predict  how  a  reasonable  jury  would  decide  

the  case.  .  .  ."   Id.  at  519.   



             16           See McCormick I, 330 P.3d 345, 352 (Alaska 2014) (discussing plausible  

                                                                                                                                                       

 factual scenarios that made denying McCormick's Rule 56(f) motion before granting  

                                                                                                                                                        

 summary judgment  an abuse of discretion).  

                                                                                       



             17           Id.  

                                  



             18           Id.  



                                                                                -10-                                                                           7435
  


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

                              Markham submitted                                an   affidavit   detailing   the   March   2011   phone   call  



between the parties' attorneys during the negotiations.                                                                        According to this affidavit, he                                  



mentioned his belief that there was more than one occurrence, but the attorneys agreed                                                                                                

                                                                                                                                            19     This account could be  

to settle while leaving the number of occurrences unresolved.                                                                                                                                   



supported by Markham's letter following up on the phone conversation, in which he  

                                                                                                                                                                                               



noted that the policy limits might be different than the initial estimates and that it was his  

                                                                                                                                                                                               



understanding that the insurance company would "pay 'limits' what ever they may be."  

                                                                                                                                                                                                       



In light ofthisaccount, when McCormick signed the purported settlement agreement and  

                                                                                                                                                                                             



dismissed his first lawsuit it could have been with the understanding that they had not  

                                                                                                                             



yet decided on the limits.  

                                            



                              Under the scenario suggested by Markham's affidavit, the parties signed  

                                                                                                                                                                                      



the purported settlement agreement without agreeing on policy limits, and therefore did  

                                                                                                                                                                                              

not have a meeting of the minds on a material term.20                                                                        In addition to barring summary  

                                                                                                                                                                                



               19             The settlement letter  from Markham demanding policy limits at the start   



of the negotiation process could provide additional support for the proposition that the                                                                                                      

number of occurrences was raised yet unresolved, as the letter stated that the settlement                                                                                     

was "for any and all injuries" and the "claim arises from two accidents to McCormick."                                                                                                                 



               20             We discussed such a situation in Davis v. Dykman, which involved a car  

                                                                                                                                                                                             

accident victim's purported settlement agreement with the insurance company. 938 P.2d  

                                                                                                                                                                                           

 1002 (1997).  In Davis we affirmed the superior court's holding that the parties had not  

                                                                                                                                                                                              

formed an enforceable agreement when the settlement offer "did not propose a specific  

                                                                                                                                                                                   

amount or a method of calculating a specific amount."  Id. at 1006.  The formation of a  

                                                                                                                                                                                                   

valid contract requires an offer encompassing all essential terms, and, in the case of a  

                                                                                                                                                                                                  

settlement agreement, this includes a dollar amount that the party would accept or the  

                                                                                                                                                                                              

method used to calculate such an amount.  Id. at 1006-07 (citing Young v. Hobbs, 916  

                                                                                                                                                     

P.2d 485, 488 (Alaska 1996) (concluding parties to purported settlement agreement did  

                                                                                                                                                                                              

not  agree  on  a  material  issue)).                                           A  contract  to  negotiate  the  settlement  amount  is  

                                                                                                                                                                                                

unenforceable.                        See  id.  at  1008-09  ("Without  agreeing  on  a  more  specific  way  of  

                                                                                                                                                                                   

resolving their differences, any agreement to negotiate would have been too indefinite  

                                                                         

                                                                                                                                                                      (continued...)  



                                                                                              -11-                                                                                       7435
  


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

judgment on the basis that the parties agreed to settle for a single policy limit, this dispute                                                                                                                                                                                                                                                                                                                                                                             



  also creates an issue of fact barring summary judgment on the superior court's second                                                                                                                                                                                                                                                                                     



 basis for upholding Chippewa's interpretation of the settlement agreement: McCormick                                                                                                                                                                                                                                                                                                                                                          



 ratified Chippewa's interpretation by failing to object to its interpretation that there was                                                                                                                                                                                                                                                                                                                                                                                                  



  one occurrence, and subsequently signing the settlement agreement and dismissing his                                                                                                                                                                                                                                                                                                                                                                                                               



  lawsuit.    If the attorneys agreed to leave the number of occurrences open during the                                                                                                                                                                                                                                                                                                                                                                                                           



 phone   call,   then   McCormick's   actions   may   not   demonstrate   his  intent   to   abide   by  



  Chippewa's interpretation of "remaining policy limits."                                                                                                                                                                                                                              



                                                                               Markham'saccount iscontradicted                                                                                                                                                                         byan affidavitanddepositionofFarley,                                                                                                                                                   



 which assert that the parties never mentioned the number of occurrences during the call.                                                                                                                                                                                                                                                                                                                                                                                                                                



  The dissent asserts that it is clear the parties did not reach an agreement on the number                                                                                                                                                                                                                                                                                                                                                                              



  of policy limits in play; however, a reasonable person could believe that Farley's account                                                                                                                                                                                                                                                                                                                                                                             



  of the phone call is more credible.                                                                                                                                                                   Farley's account of the call suggests that the parties                                                                                                                                                                                                                 



  agreed to settle for a single $500,000 policy limit.                                                                                                                                                                                                            



                                                                               Thesettlement                                                                        agreement andextrinsicevidencecouldalso                                                                                                                                                                                                                   support that the                                                       



 parties agreed to settle for a single policy limit.                                                                                                                                                                                                                                Markham's settlement offer explained                                                                                                                                     



 that "[t]his letter is written to extend an offer to unconditionally settle all aspects of all                                                                                                                                                                                                                                                                                                                                          



  claims . . . in exchange for the 'policy limits.' " In this settlement offer Markham did not                                                                                                                                                                                                                                                                                                                                                                                                      



  state that McCormick was seeking policy limits based on multiple occurrences, rather he                                                                                                                                                                                                                                                                                                                                                                                                               



 noted   that   "this   claim,"   as  in   a   singular   claim,   "arises   from   two   accidents   to  



 McCormick."     Chippewa's   acceptance   letter   then   included   an   "estimate   that   the  



 remaining   limits   are   approximately   $370,000":     this   amount   is   consistent   with   an  



 understanding that the settlement was for a single occurrence.                                                                                                                                                                                                                                                                                                            



                                        20                                     (...continued)  



                                                                                

 to enforce.").  



                                                                                                                                                                                                                                                 -12-                                                                                                                                                                                                                                      7435  


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

                                                             Before   reaching   the   purported   settlement   agreement,   Farley   sent   an  



exposure analysis letter to the insurance underwriter which indicated an "estimate [that]                                                                                                                                                                                                                                                                                       



the remaining policy limits are slightly less than $400,000."                                                                                                                                                                                                                        And as discussed by the                                                                              



 superior court, the settlement agreement was written to apply to "the injuries . . . suffered                                                                                                                                                                                                                                                             



as a result of the accident aboard the F/V C                                                                                                                                                   HIPPEWA  on or about August 14, 15, 16, 2007                                                                                                                                       



and/or as a result of [McCormick's] employment with Chippewa, Inc." in exchange for                                                                                                                                                                                                                                                                                                        



"the   remaining   policy   limits   available   under   [the   policy   with   a]   face   limit   of   Five  



Hundred Thousand Dollars."                                                                                                            



                                                             Given the interplay between the number of occurrences and policy limits,                                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                                                                                                                                                                  21  

the conflicting evidence about the phone call presents a genuine issue of material fact:                                                                                                                                                                                                                                                                                                                     



A reasonable person could discern that there is a factual dispute about whether the parties  

                                                                                                                                                                                                                                                                                                                                                                           



quantified the policy limits or set out a procedure for determining policy limits. Whether  

                                                                                                                                                                                                                                                                                                                                                                 



the attorneys expressed their intentions during the phone call and, if so, what those  

                                                                                                                                                                                                                                                                                                                                                                               



                              21                             See Zeman v. Lufthansa German Airlines                                                                                                                                                 , 699 P.2d 1274, 1281-82 (Alaska                                                                                  



 1985)  (holding   that   interpretation   of   ambiguous   letters   "depends   on   knowledge   of  

 surrounding circumstances, i.e., what was said at the previous meetings between Zeman                                                                                                                                                                                                                                                                                   

and Lufthansa's representatives . . . . [and] presents a question of fact which should not                                                                                                                                                                                                                                                                                                

have been resolved in a motion for summary judgment.").                                                                                                                                                                                                                               See also                                      RESTATEMENT  

 (SECOND)   OF   CONTRACTS      212   cmt.   e   (AM. L                                                                                                                                                                            AW   INST .   1981)   ("Even   though   an  

agreement is not integrated, or even though the meaning of an integrated agreement                                                                                                                                                                                                                                                                      

depends on extrinsic evidence, a question of interpretation is not left to the trier of fact                                                                                                                                                                                                                                                                                           

where the evidence is so clear that no reasonable person would determine the issue in                                                                                                                                                                                                                                                                                                          

any way but one.                                                                    But if the issue depends on evidence outside the writing, and the                                                                                                                                                                                                                                     

possible inferences are conflicting, the choice is for the trier of fact."); 5 M                                                                                                                                                                                                                                                                 ARGARET  N.  

        NIFFIN, CORBIN ON CONTRACTS   24.30, at 332 (1998) ("Both the existence and the                                                                                                                                                                                                                                                                                                  

K                                                                                                

terms of a contract must often be established by means of inferences drawn from letters,                                                                                                                                                                                                                                                                                  

conduct, and oral statements of the parties . . . . The weighing of this evidence and the                                                                                                                                                                                                                                                                                                 

determination of the inferences to be drawn - the interpretation - is for the jury or                                                                                                                                                                                                                                                                                                         

other trier of the facts . . . ." (footnote omitted))).                                                                                                                      



                                                                                                                                                                                            -13-                                                                                                                                                                                   7435
  


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

                                                                                                                                                         22  

 intentions were should have been left to the trier of fact.                                                                                                   The superior court therefore                         



 erred when it granted Chippewa's motion for summary judgment, and we remand so that                                                                                                                                               



 the superior court may allow a trier of fact to determine whether the parties reached an                                                                                                                                              

 agreement and, if so, what terms they agreed to.                                                                                   23  



                   D.                McCormick Has Waived His Other Arguments.  

                                                                                                                                              



                                     McCormick attempted to incorporate by reference several other arguments  

                                                                                                                                                                                                                 



 presented in briefing submitted during McCormick I .   He argues that we may take  

                                                                                                                                                                                                                                 



judicial notice of the prior briefing.  But we have long held that a party's briefing must  

                                                                                                                                                                                                                                



 contain  its  own  arguments  and  may  not  merely  incorporate  arguments  from  other  

                                                                                                                                                                                                                              

 documents.24  

                                                                                                                                                                                                                                 

                                          Our Rules  of  Appellate Procedure require each brief to contain "the  



                   22                Christensen v. Alaska Sales &Serv., Inc.                                                                     , 335 P.3d 514, 520 (Alaska 2014)                                          



 ("The trier of fact ultimately may find against the non-moving party after evaluating                                                                                                                          

 credibility and applying the substantive evidentiary standards of proof at trial.").                                                                                                                                          



                   23                See Alaska N. Dev. Inc. v. Alyeska Pipeline Serv. Co., 666 P.2d 33, 39  

                                                                                                                                                                                                                                      

 (Alaska 1983) ("If the evidence conflicts, the choice between competing inferences is for  

                                                                                                                                                                                                                                      

 the trier of fact to resolve."); Peterson v. Wirum, 625 P.2d 866, 869-70 (Alaska 1981)  

                                                                                                                                                                                                                             

 ("[S]ummary judgment is inappropriate when the affidavits and other evidence before  

                                       

 the trial court establish that a factual dispute exists as to the expressed intent of the  

                                                                                                                                                                                                                                    

 parties."   (citing  Kincaid   v.   Kingham,   559   P.2d   1044,   1047   (Alaska   1977)));  

                                                                                                                                                                                                                    

 RESTATEMENT  (SECOND)  OF  CONTRACTS   215 cmt. b (A                                                                                                       M. L        AW  INST . 1981) ("Where                     

 reasonable people could differ as to the credibility of the evidence offered and the                                                                                                                                               

 evidence if believed could lead a reasonable person to interpret the writing as claimed     

 by the proponent of the evidence, the question of credibility and the choice among                                                                                                                                       

 reasonable inferences should be treated as questions of fact.").                                                                                                            



                   24                See Blair v. Fed. Ins. Co., 433 P.3d 1048, 1053 (Alaska 2018) (declining  

                                                                                                                                                                                                                 

 toconsiderarguments incorporated into opening briefby referenceto summary judgment  

                                                                                                                                                                                                                    

 pleadings in the superior court); Kay v. Danbar, Inc., 132 P.3d 262, 265 n.1 (Alaska  

                                                                                                                                                                                                                       

 2006) ("Because Kay's brief merely incorporates his superior court arguments on the  

                                                                                                                                                                                                                                    

 summary judgment issues, we deem these issues to be inadequately briefed, and we  

                                                                                                                                                                                                                        

 decline to consider them."); Anchorage Nissan, Inc.  v.  State , 941 P.2d 1229, 1240  

                                                                                                                                                                                                                              

                                                                                                                                                                                                         (continued...)  



                                                                                                                 -14-                                                                                                           7435
  


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

contentions of the appellant . . . with citations to the authorities, statutes, and parts of the                                      



                            25  

record relied on."                                                 

                                 Our Appellate Rules also prescribe a strict page limit with limited  



                  26  

                                                                                                                     

exceptions.           As the Supreme Court of Pennsylvania has noted, allowing incorporation  



                                                                                                                                 

of other briefing "would enable wholesale circumvention of our appellate rules which  



                                                                                                                  27  

                                                                                                                        

set forth the fundamental requirements every appellate brief must meet."                                              McCormick  



                                                                                                                                      

may not incorporate arguments by reference to outside documents, but must develop his  



                                                                                                                          

position in his own brief. We therefore deem these arguments waived due to inadequate  

briefing.28  



IV.        CONCLUSION  



                                                                                                                                     

                     We AFFIRM the superior court's discovery and evidentiary rulings.  We  



                                                                                                                          

VACATE the superior court's grant of summary judgment and award of attorney's  



       29  

                                                                                                           

fees.       We REMAND for further proceedings consistent with this opinion.  



           24        (...continued)  



                                                                                                                                

(Alaska 1997) ("We need not consider arguments which a party on appeal merely adopts  

                                                                             

and incorporates by reference to its lower court memoranda.").  



           25        Alaska R. App. P. 212(c)(1)(I).  

                                                    



           26        Alaska R. App. P. 212(c)(4) (limiting opening brief to 50 pages); Alaska  

                                                                                                          

R. App. P. 212(c)(5) (allowing appellant or appellee in a case involving multiple parties  

                                                                                                                                

to "adopt by reference any part of the brief of another").  

                                                                           



           27        Com  v.  Briggs,  12  A.3d  291,  343  (Pa.  2011)  (deeming  arguments  

                                                                                                                         

incorporated by reference via brief attached as an appendix to appellant's brief waived).  

                                                                                                                             



           28        See Hagen v. Strobel, 353 P.3d 799, 805 (Alaska 2015) ("Where a point is  

                                                                                                                                        

given only a cursory statement in the argument portion of a brief, the point will not be  

                                                                                                                                       

considered on appeal." (quoting Glover v. Ranney, 314 P.3d 535, 545 (Alaska 2013))).  

                                                                                                                              



           29        Because we vacate the superior court's award of attorney fees, we decline  

                                                                                                                               

to address McCormick's arguments related to those fees.  

                                                                                    



                                                                  -15-                                                            7435
  


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

STOWERS, Justice, dissenting.      



                                                                                                                 1  

                      McCormick's injury lawsuit was filed in Kodiak in 2010.                                                        

                                                                                                                   In early to mid- 



                                                                                                                               

January 2011, Chippewa, Inc.'s insurance adjusters dealing with McCormick's attorney,  



                                                                                                                                        

Gerald  Markham,  were  emailing  back  and  forth  regarding  Markham's  method  of  



                                                                                                                                   

operation with policy limits demands.  After noting the insurer should be in good shape  



                                                                                                                                  

for a policy limits demand, one stated:  "Sounds like we may even have a 2nd injury,  



                                                                      

falling out of bunk and injuring his head."  



                                                                                                                         

                      In  late  January  and  early  February  2011,  an  adjuster  and  Chippewa's  



                                                                                                                                

attorney, Laura Farley, were discussing McCormick's claims by email with the singular  



                                                                                                                                       

"injury" in the subject line. The adjuster noted that Markham had said on January 24 that  



                                                                                                                                   

ademandletter wouldbeforthcoming. Farley relayed information froma medical record  



                                                                                                                                     

review doctor, who specifically discussed a potential disc injury and a potential head  



                                                                                                                                          

injury.       The original letter  to  the doctor  from an  adjuster  had  specifically  asked  if  



                                                                                                                                   

McCormick's alleged dizziness and balance issues could be caused by his "back injury  



                                                                                                                                        

and/or treatment" or if "it is possible for a blow to the head or a head injury" to be the  



                        

causal agent.  



                                                                                                                                     

                      In a February 8 letter, Farley outlined to an adjuster her analysis of the case,  



                                                                                                                                        

discussing both liability and damages; she noted that the reasonable settlement range for  



                                                                                                                                

the case was $230,000 to $375,000, and she recommended that the insurer attempt  



                                                                                                                            

negotiations at the best terms possible but said, "be prepared to offer the remaining  



                                                    

limits" to protect the insureds.  



                                                                                                                            

                      On  February  15  Markham delivered  a  demand  letter  to  the  insurance  



                                                                                                                                  

adjuster offering to settle for policy limits.  In the letter Markham stated that the "claim  



                                                                                                                                          

arises from two accidents to McCormick."  Markham described one accident leading to  



           1  

                                                                                                                            

                      See McCormick v. Chippewa, Inc., 330 P.3d 345, 347 (Alaska 2014).  



                                                                   -16-                                                                 7435  


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

                                                                                                                                

a back injury and alleged related medical malpractice liability, and referred to this as  



                                                                                                                     

occurring on August 14-15, 2007.  He described a second accident as being tossed off  



                                                                                                      

of a bunk in heavy seas with a related head injury, and referred to this as occurring on  



                                                                                                                               

August 15, with medical treatment on August 16.  He started the letter by noting the  



                                                                                                                         

settlement offer was for policy limits and concluded with a demand that the insurer  



                                                                                                                                

"unconditionally accept this policy limits offer." Markham reiterated his demand for an  



                                                                                                                                    

unconditional acceptance of the policy limits demand by email on February 22, 2011.  



                                                                                                              

                    In a March 3 letter by fax, Farley advised Markham of her  representation  



                                                                                                                               

of the insureds and stated that she "wr[o]te to accept your demand for payment of the  



                                                                                                                           

remaining policy limits under" the insurance policy.  She noted the policy's face limits  



                                                                                                                               

were $500,000 and estimated remaining limits of $370,000 given cannibalization of the  



                                                                                                                             

policy limits.   She attached a settlement agreement and release.   She said that "the  



                                                                                                                            

underwriters  will  calculate  the  remaining  limits"  after  the  settlement  papers  were  



                                                                                                                

finalized and that a check would be exchanged for the settlement papers.  



                                                                                                                          

                    The settlement agreement stated as consideration for McCormick's release  



                                                                                                                                 

"the remaining policy limits available" under the insurance policy, which was stated to  



                                                                                                                                

have $500,000 face limits.  Nothing in the settlement agreement stated an estimate of  



                                                                                                                     

remaining  policy  limits  or  how  they  would  be  calculated.                                 The  release  language  



                                                                                                                          

encompassed "all accidents and incidents" related to McCormick's work on the vessel,  



                                                                                                                               

"including but not limited to those occurring on or about August 14, 15, and/or 16,  



            

2007."  



                                                                                                                                     

                    Markham called Farley to discuss the settlement agreement on March 21.  



                                                                                                                            

According to Markham's affidavit, he told Farley that he had no problem with the form  



                                                                                                                            

of the settlement agreement and release, but he also told Farley that he wanted to make  



                                                                                                                               

clear that he disagreed with Farley's estimate of the remaining policy limits set out in her  



                                                                                                                            

letter.   Markham began to argue that, as set out in his settlement letter, there were  



                                                              -17-                                                         7435
  


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

                                                                                                                                

multiple accidents, but was interrupted mid-sentence.  Farley responded that (1) she did  



                                                                                                                     

not want to talk about coverage issues but had been authorized to accept the settlement  



                                                                                                                      

demand "for policy limits what ever they may be" and (2) it was the insurer's "intention  



                                                                                                                                      

to then pay those limits what ever they may be to get their insureds out of the claims."  



                                                                                                                        

(Emphasis removed.)  Farley said that after the policy limits settlement was reached,  



                                                                                                                                      

Markham could take up with the insurer the issue of what the policy limits actually were.  



                                                                                                                       

Markham agreed to the concept that McCormick was settling for policy limits, whatever  



                                                                                                    

they may be, and Markham would send Farley a confirming fax.  



                                                                                                                                  

                    On March 22 Markham sent a confirmation letter by fax.  He stated that in  



                                                                                                                             

the conversation  the day  before  he had expressed  his view that policy limits were  



                                                                          

different than set out in Farley's March 3 letter and that Farley had responded that her  



                                                                                                                            

intent in accepting his policy limits settlement offer was to effectuate a settlement under  



                                                                                                                           

which the insurer would "pay 'limits' what ever they may be (which was as my offer's  



                                                                                                                   

intent)."  He then transmitted the signed settlement agreement and release.  



                                                                                                                      

                    On March 24 Markham sent Farley a letter noting he had filed dismissal  



                                                                                                                              

papers to end the lawsuit.  He said he was still awaiting communication regarding how  



                                                                        

the insurer would be calculating policy limits.  



                                                                                                                               

                    On March 25 Farley sent the insurer an email stating that Markham had  



                                                                                                                           

"demanded limits, whatever those are, and we accepted by saying we would pay limits,  



                                 

whatever those are."  



                                                                                                                                

                    Markham ultimately refused to accept what the insurer calculated as the  



                                                                                                                                

remaining, single-occurrencepolicylimitsto consummatethesettlement,and hefiled the  



                                                                            

current suit to enforce the settlement agreement.  



                                                                                                                                   

                    As more fully discussed in the main opinion, Chippewa eventually filed a  



                                                                                                                         

motion for summary judgment, arguing that it never intended the settlement to involve  



                                                                                                                          

multiple policy limits.  The superior court issued an order granting Chippewa's motion  



                                                               -18-                                                         7435
  


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

                                                                                                                                                                                                                                                                                                              

for summary judgment in December 2016. It concluded that the parties had entered into  



                                                                                                                                                                                                                                                                                                               

a binding settlement agreement and "[t]he only outstanding issue is how to interpret that  



                                                                                                                                                                                                      

agreement as to the phrase 'remaining policy limits.' "  



                                                                                                                                                                                                                                                                                                              

                                                 The  court  concluded  that  "remaining  policy  limits"  referred  to  the  



                                                                                                                                                                                                                                                                                           

remainder of a single limit of $500,000, not the sum of multiple occurrences that each  



                                                                                                                                                                                                                                                                                     

have  a  $500,000  limit.                                                                      The  court  reached  this  conclusion  because  the  settlement  



                                                                                                                                                                                                                              HIPPEWA, . . . in exchange                                 

"appl[ied] to all claims, arising out of incidents on the F/V C 



for the 'remaining policy limits' of the $500,000 insurance policy." The court also relied                                                                                                                                                                                                              



on extrinsic evidence, including Chippewa's attorney's exposure analysis letter, which                                                                                                                                                                                                                



thecourt                        viewed as"demonstrat[ing]that                                                                                       Chippewawas                                           not considering exposureabove                                                                



 $500,000." The court additionally noted that McCormick's settlement offer did not state                                                                                                                                                                                                                    



that   multiple   occurrences  might   be   involved.     Finally   the   court   recognized   that  



Chippewa's acceptanceletter included                                                                                                       an estimateoftheremaining                                                                             policy limitsthat                                            was  



below $500,000.                                                 



                                                 The   court   concluded   that   a   second   basis   for   upholding   Chippewa's  



interpretation   of   the   settlement   agreement   was   that   McCormick   had   ratified   this  



interpretation.   According to the court, McCormick demonstrated his intent to abide by                                                                                                                                                                                                                            



Chippewa's interpretation of "remaining policy limits" by failing to timely object to                                                                                                                                                                                                                               



Chippewa's March 2011 estimate of the remaining policy limit, and then subsequently                                                                                                                                                                                         



signing the settlement agreement and dismissing his lawsuit.                                                                                                                                                                    



                                                 Onappeal,this                                         court reverses thesuperior court'ssummaryjudgmentorder,                                                                                                                                          



holding that genuine issues of material fact preclude summary judgment both on the                                                                                                                                                                                                                              



question whether the parties actually reached an enforceable agreement and, if so, what                                                                                                                                                                                                                    



terms the parties agreed to.                                                                           My disagreement with the court's opinion is that on the                                                                                                                                                  



record before us it is clear the parties did not reach an agreement on essential terms of                                                                                                                                                                   



the settlement agreement - the number of policy limits in play and the amount of the                                                                                                                                                                                                                             



                                                                                                                                                       -19-                                                                                                                                                7435
  


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

settlement. I would reverse the superior court's grant of summary judgment and remand,                                                                      



not for a trial on these questions, but to allow McCormick to reinstate his personal injury                                                                     



case.  

                                                                                                                               2    Under Davis, if the  

                          My conclusion is informed by                                   Davis v. Dykman                      .                                      



parties actually agreed to a policy limits settlement - whatever those limits might be -  

                                                                                                                                                                       



without a mechanism to determine policy limits, the agreement is unenforceable.  This  

                                                                                                                                                                   



is especially true where there is an undetermined number of occurrences that might  

                                                                                                                                                                



trigger separate policy limits.  

                                              



                          In Davis the insurer offered to settle Dykman's tort claims for the policy's  

                                                                                                                                                            



face limits plus interest and Alaska Civil Rule 82 attorney's fees based on the face  

                                                                                                                                                                   

limits.3          Dykman rejected the offer, arguing that the policy's limitation to Rule 82  

                                                                                                                                                                      



attorney's fees on the face limits was unenforceable and that the insurer likely was liable  

                                                                                                                                                                 

for unlimited Rule 82 attorney's fees.4                                          Dykman counteroffered to settle for the face  

                                                                                                                                                                   

                                                                                                                                               5    The insurer  

limits plus Rule 82 attorney's fees based on an anticipated jury verdict.                                                                                     

                                                                                                                                 



"accepted" this counteroffer, with some different language, agreeing to pay Rule 82  

                                                                                                                                                                      

attorney's fees based "on a projected jury verdict as ordered by a court" or negotiated.6  

                                                                                                                                                                             



Dykman denied that the insurer had validly accepted his counteroffer, but rather had sent  

                                                                                                                                                                    



a new counteroffer; stating that he had no wish to continue litigation, Dykman again  

                                                                                                                                              



offered to  settle for  face  limits plus Rule 82  attorney's fees based  "on a projected  

                                                                                                                                                         



             2             938 P.2d 1002 (Alaska 1997).                   



             3            Id. at 1004.  

                                       



             4            Id.  



             5            Id.  at 1005.   



             6            Id.  



                                                                                  -20-                                                                           7435
  


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

                 7  

verdict."   The insurer responded that it believed the parties had reached an agreement                                                        

 for the policy's face limits plus a Rule 82 figure to be negotiated.                                                      8  



                         Theinsurer filedsuit seekingspecificperformanceofthealleged settlement  

                                                                                                                                                

                     9   The superior court granted summary judgment to Dykman, concluding that  

 agreement.                                                                                                                                                 

no enforceable settlement agreement had been reached.10                                                      We affirmed.11  

                                                                                                                      



                         We first explained that weuseour independent judgment in interpreting the  

                                                                                                                                                              

undisputed words of an offer to enter into a contract.12                                                        Applying our independent  

                                                                                                                                           



judgment "[w]e conclud[ed] that there was no valid offer to settle, because Dykman did  

                                                                                                                                                             



not propose a specific amount or a method of calculating a specific amount.  At most,  

                                                                                                                                                         

Dykman simply offered to negotiate."13                                       We then discussed the law regarding the need  

                                                                                                                                                          



 for  reasonable  certainty  in  the  terms  of  a  proposed  contract;  absent  an  offer  

                                                                                                                                                        

                                                                                                                                                      14    We  

 encompassing the essential terms of the agreement, there could be no contract.                                                                             

                                                                                                                                      



 explained:             "The  formation  of  a  valid  contract  requires  an  offer  encompassing  all  

                                                                                                                                                             



 essential terms, unequivocal acceptance by the offeree, consideration, and an intent to  

                   



             7           Id.  



             8           Id.  



             9           Id.  



             10          Id.  at 1006.   



             11          Id. at 1009.  

                                     



             12          Id. at 1006.  

                                     



             13          Id.  



             14          Id.  at 1006-07.   



                                                                              -21-                                                                       7435
  


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

                                                                                                                                                                        15  

be bound.              An agreement is unenforceable if its terms are not reasonably certain."                                                                               We  

also stated that a contract to negotiate is unenforceable.                                                          16  



                            In my view, Davis compels the conclusion in the case now before us that  

                                                                                                                                                                              



when the parties agreed to settle for remaining "policy limits what ever they may be,"  

                                                                                                                                                                  



there was no meeting of the minds on an essential term - the amount of the remaining  

                                                                                                                                                                



limits - and thus no enforceable agreement was formed.  There was also no agreement  

                                                                                                                                                                



on the number of incidents and thus the number of policy limits at issue.   Farley's  

                                                                                                                                                                   



proposal  that,  after  McCormick's  signing  of  the  settlement  agreement  and  release,  

                                                                                                                                                                     



Markham could take up with the insurer the issues of what the remaining limits were,  

                                                                                                                                                                          



simply  highlights  that  the  parties  had  not  agreed  on  this  essential  element  of  their  

                                                                                                                                                                           



contract.  To the extent that the parties anticipated and agreed to a later negotiation of  

                                                                                                                                                                                 



what policy limits were in play, the offer and acceptance were also not valid. Either way,  

                                                                                                                                                                            



as  a  matter  of  law  the  policy  limits  offer  and  acceptance  were  invalid  for  lack  of  

                                                                                                                                                                                



certainty.  



                            Therefore, summary judgment was improperly granted on the basis of an  

                                                                                                                                                                           



enforceable agreement.  I would hold that an enforceable agreement was not reached,  

                                                                                                                                                                    



reverse  the  grant  of  summary  judgment,  and  remand  with  instructions  to  allow  

                                                                                                                                                                        



McCormick a reasonable time to reinstate his underlying injury claims.  

                                                                                                                                       



              15            Id . at 1006 (emphasis added) (first citing                                             Young v. Hobbs                   , 916 P.2d 485,   



488 (Alaska 1996);                        Childs v. Kalgin Island Lodge                                   , 779 P.2d 310, 314 (Alaska 1989);                            

then citing            Hall v. Add-Ventures, Ltd.                              , 695 P.2d 1081, 1087-89 (Alaska 1985)).                                 



              16            Id. at 1008-09.  

                                         



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