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Pedersen v. Flannery, Kibbey and Diaz (11/30/93), 863 P 2d 856
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
EINAR S. PEDERSEN, ) Supreme Court No. S-5287
) Superior Court No.
v. ) 4FA-88-1958 CIVIL
MICHAEL J. FLANNERY, M.D.; ) O P I N I O N
WILLIAM KIBBEY, M.D.; and )
TONY DIAZ, M.D., )
) [No. 4033, November 30, 1993]
Petition for Review from the Superior
Court of the State of Alaska, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Michael W. Flanigan,
Clark, Walther & Flanigan, Anchorage, for
Petitioner. Marcus R. Clapp and David F.
Leonard, Hughes, Thorsness, Gantz, Powell &
Brundin, Fairbanks, for Respondents Flannery
and Kibbey. Sanford M. Gibbs, Hagans, Brown,
Gibbs & Moran, Anchorage, for Respondent
Before: Rabinowitz, Burke, and Compton,
Justices. [Moore, Chief Justice, and
Matthews, Justice, not participating.]
Einar S. Pedersen petitioned this court to review the
superior court's decision that his claim of medical malpractice,
asserted as a breach of contract, is controlled by the two-year
statute of limitations. We conclude that the two-year statute of
limitations applicable to "injuries to the person . . . not
arising on contract," and not the six-year statute for all
"actions on a contract or liability," applies to Pedersen's
claim. We therefore affirm.
This case is before us for the second time. See
Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991). In 1988, Einar
S. Pedersen sued respondent doctors for medical malpractice
arising out of the treatment of injuries Pedersen suffered in a
car accident. Pedersen alleged that the doctors' medical
malpractice caused permanent paralysis of his legs. The superior
court granted summary judgment in favor of the doctors and
Pedersen appealed. In our prior decision, we reversed the
summary judgment and remanded the case to the superior court for
On remand Pedersen amended his complaint to add an
eleventh count alleging that all respondents "breached their
implied contractual duties to plaintiff. . . ." Pedersen did so
in order to bring his medical malpractice claim within the six-
year statute of limitations as construed in Lee Houston &
Associates, Ltd. v. Racine, 806 P.2d 848 (Alaska 1991). Also on
remand several doctors filed a Motion to Dismiss and Establish
Law of the Case. The motion sought dismissal of Count XI of
Pedersen's amended complaint and an order establishing that "all
of plaintiff's claims in this litigation"are controlled by the
two-year statute of limitations in AS 09.10.070. The superior
court denied the motion to dismiss and held that the two-year
statute of limitations applies to Count XI. We granted
Pedersen's petition for review of that decision.
The issue now before us involves interpretation and
application of two statutes of limitations.1 The first statute,
AS 09.10.050, sets forth the actions that may be brought within
Actions to be brought in six years. No
person may bring an action (1) upon a
contract or liability, express or implied,
excepting those mentioned in AS 09.10.040 or
09.10.055 . . . unless commenced within six
The second provision, AS 09.10.070, sets forth the actions that
must be brought within two years:
Actions to be brought in two years. No
person may bring an action (1) for libel,
slander, assault, battery, seduction, false
imprisonment, or for any injury to the person
or rights of another not arising on contract
and not specifically provided otherwise . . .
unless commenced within two years.
Pedersen argues, relying on Lee Houston, that his
medical malpractice suit is an "action upon a contract or
liability" subject to the six-year statute of limitations.
Respondents reply that the two-year statute "for any injury to
the person . . . of another not arising on contract" more
appropriately covers Pedersen's malpractice suit, because the
rule of Lee Houston is limited to professional service
relationship suits for economic injuries.
Van Horn Lodge, Inc. v. White, 627 P.2d 641, 643
(Alaska 1981), announced the principle that the gravamen of a
complaint determines the appropriate limitations period. Under
Van Horn Lodge, if a contract created the duty at issue, then the
six-year statute of limitations applies. Id. If, on the other
hand, the contract created a relationship but it was the common
law that attached a duty to the relationship, the two-year
statute applies. Id.
Lee Houston in part modified Van Horn Lodge. Lee
Houston held that malpractice claims alleging economic harm are
subject to the six-year limitations period. 806 P.2d at 853-55.2
Lee Houston did not overrule Van Horn Lodge completely; rather,
it overruled it only to the extent that the two decisions were
inconsistent. Id. at 855. Because Lee Houston focused on, and
is limited to, economic harm in the context of professional
malpractice, it left Van Horn Lodge intact with regard to cases
that involve non-economic harm.3 In the case at bar Pedersen
asserts that the doctors' malpractice caused him personal
injuries in the nature of permanent paralysis. More
particularly, Pedersen's complaint for personal injuries alleges
a breach of the doctors' implied-in-law duty to act with
requisite skill. There are no allegations that the respondents
promised either a specific result or a greater duty of care.
Given the foregoing, the six-year statute of limitations provided
for in AS 09.10.050 is inapplicable since Pedersen's claim is for
non-economic injuries arising out of the doctors' professional
malpractice. Thus, Pedersen's claims are governed by the two-
year statute of limitations for injuries to the person not
arising on contract contained in AS 09.10.070.
The order of the superior court is AFFIRMED and this
case is REMANDED for further proceedings not inconsistent with
1. Statutory interpretation is a question of law subject to
this court's independent judgment. Borg-Warner Corp. v. Avco
Corp., 850 P.2d 628, 631 n.8 (Alaska 1993). When considering
questions of law, we are "not bound by the lower court's
decision"and will "adopt the rule of law that is most persuasive
in light of precedent, reason, and policy." Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
2. The difference between economic harm and other types of
harm was central to the analysis:
Second, application of a six-year
limitation period, rather than a two-year
period, to claims arising out of professional
service relationships involving economic loss
is consistent with the primary purpose of the
statutes of limitations. The statutes are
intended to encourage prompt prosecution of
claims and thus avoid injustices which may re
sult from lost evidence, faded memories and
disappearing witnesses. Haakanson v.
Wakefield Seafoods, Inc., 600 P.2d 1087, 1090
(Alaska 1979). Actions like the present one
involving economic loss are often based
largely on documentary evidence not unaided
recollections which quickly grow stale. On
the other hand, a shorter limitations period
is consistent with the more evanescent nature
of evidence which is frequently found in
cases involving personal, reputational or
Lee Houston, 806 P.2d at 855 (footnote omitted).
3. Lee Houston noted Van Horn Lodge's tension with another
case, Bibo v. Jeffrey's Restaurant, 770 P.2d 290 (Alaska 1989).
Lee Houston, 806 P.2d at 848. Bibo also involved economic harm,
and its analysis was limited to the narrow category of actions
against corporate directors. See Bibo, 770 P.2d at 295-96.
Therefore, Bibo is not in conflict with application of the Van
Horn Lodge standard to cases with allegations of non-economic