*1 406 conclusion, court rul- “will assist the trier should review
scientific evidence general ings reliability type a on to de fact to evidence or understand evidence or method under a de novo scientific Evid. in issue.” W. Va. R. termine fact rulings rele- standard and on evidence’s Appellate review of the trial court’s 702. particular vance to case abuse of discre- relevancy requirement is rulings under the hybrid review tion. Such standard of standard.[19] under an abuse of discretion judges in would allow trial Alaska considera- case, in this Rex Lamont The amici curiae flexibility making findings and ble factual Butler & Associates and Alaska Public competency assessments witness and cred- Agency, our to two Defender direct attention ibility preserving while still consis- needed cases, tency judicial v. regarding Alaska Pulakis v. State20 and State the ad- decisions Contreras,21 missibility of scientific evidence. For this appellate Alaska courts reason, respectfully I dissent from section independent have exercised their opinion. III.D.l of the court’s determining admissibility of certain polygraph exami- scientific evidence such hypnosis.22 response The court’s
nations and implication ques-
to the of these cases—that validity should
tions of scientific be stringent
a more standard review —is adequately take ac-
such a view “does not judicial reality process
count of the of the variable state science.”23 FALCONER, Appellant Charlie N. cites the New Mexico case State v. Cross-Appellee, argue appellate Alberico24 to courts relevant, might to “all not have access concerning ADAMS, Appellee, recent Donald most data the scientific F. courts, appellate at But method” issue.25 making an initial determination about Taylor-Welch, Appellee Karla theory validity technique of a or scientific Cross-Appellant. have to as much as the should access data Additionally, litigants court.26 because S-7637, Nos. S-7657. appeal right, have as of will in Alaska an Supreme Court Alaska. ample opportunity our deci- revisit validity of a tech- sions on scientific certain 26, March 1999. nique if new evidence literature surfaces subject. if a as to the And decision reliability of evidence ever to scientific
hinge a particular assessment of wit- credibility,
ness’s we could review such hy-
decision for abuse of discretion under
brid standard. 156, (quoting Gentry Op. (quoting Id. at S.E.2d 62 24. at
19.
398-399
N.M.
(1993)).
Mangum, 195 W.Va.
466 S.E.2d
P.2d 192
(1995)).
205).
(quoting
at
25.
Id.
861 P.2d
(Alaska 1970).
20.
Michael W. Walther & Anchorage, Appellant/Cross-Appellee. for Holst, Clifford W. Law Office of Clifford Holst, Anchorage, Appellee F. W. Donald Adams. Foster,
Gary Gary Foster, Law Office of Fairbanks, Appellee/Cross-Appellant Taylor-Welch. Karla MATTHEWS, Justice, At confirmed Falcon- Chief Before FABE, COMPTON, EASTAUGH, er’s version of events. She testified she BRYNER, signal turning; prior when Justices. saw Falconer stopped, she hit brakes but her *3 got When she out of car slid into Falconer’s.
OPINION approached car and she saw her BRYNER, Justice. complete he to his turn that had been unable driving Taylor-Welch was a vehicle Karla wrong in car was lane because Adams’s stopped that a vehicle driven rear-ended blocking was him. and Falconer; Taylor- sued Charlie Falconer wrong being Adams in the lane of denied Adams, driver, Donald Welch and third stopped he in traffic. He testified that was stop. allegedly forced Falconer to who had designated lane —the left-turn middle negligent and jury, finding A Adams not lane —on Avenue when the collision Seventh Taylor-Welch partially Falconer both and actually He did not the colli- occurred. see damages negligent, Falconer sion, impact, but he heard the sound of against Taylor-Welch. grant- The trial court up, stopped and saw the cars. looked notwithstanding the judgment ed Falconer Haydon Officer Bartholomew of Fair- (JNOV) negli- his verdict on the issue of own Department investigated the banks Police gence, denied him trial, collision. At Bartholomew testified Adams, a final reduc- entered he original investigation report; his from ing damages amount net award of independent recollection of the incident. had received Falconer that Bartholomew testified neither rulings now from his own insurer. These are nor Falconer told him that Adams had (1) Welch Tay- challenged. We conclude: because lane, wrong in but he confirmed prove re- to that Falconer lor-Welch failed reported that was that Falconer “there an unsubrogated collateral-source bene- ceived vehicle, something in front of obstacle or fits, jury should not have been verdict him, apply that caused him to his (2) reduced; that Falconer failed to establish brake — Bartholomew, According brake.” to prevailing-party he was entitled essentially Taylor-Welch and Adams (3) what Adams; Taylor-Welch’s cur- reported, also. Bartholomew’s understand- sory challenge her to the JNOV discussion of ing stopped was that Falconer had avoid point. amounts to a waiver something on Seventh Avenue. Bartholo- apart mew of no witnesses from Fal- knew I. AND PROCEEDINGS FACTS coner, Taylor-Welch, and Adams. Collision, Trial, A. The the Ver- finding Tay- The returned verdict dict percent negligent, forty lor-Welch February 3,1992, driving On Falconer was sixty percent comparatively negligent, and He north on Cushman Street in Fairbanks. negligent. further Adams not de- Avenue, began turn left onto Seventh termined that Falconer’s total Taylor-Welch stopped abruptly. was follow- past limited to $5064 Falconer; ing applied she her slid brakes but (pain in past non-economic loss icy pavement Fal- on the and collided with suffering). coner’s car. Falconer claimed that he was stop car on forced because saw Adams’s Comparative Negli- B. The JNOV on facing wrong Seventh Avenue him in the lane gence Taylor-Welch traffic. Falconer sued trial, personal injuries During Adams for Falconer moved for a sustained collision, among establishing Taylor-Welch’s seeking, things, other reim- directed verdict negligence comparative lack expenses.1 bursement of own $8038.24 addition, reasonable). sought gested 1. In to recover over would be Falcon- past wage brought er's wife a claim for of consortium and future losses and loss (his pain anything. suffering attorney sug- recover for but the did not award negligence. apparently referring resisted these 09.17.070] AS ... Relying suppose[d] up motions. on Officer court’s to take that after Bartholomew’s major and decide whether contributing conclusion that the factor or not that’s a re- damage.” disagreed, coverable to the Adams in- collision was obstruction sisting that Falconer roadway precluded had earlier that Falconer from turn- admitted trying he was ing, Taylor-Welch argued recover the ex- reasonable pense. The trial court jurors argu- dismissed the negli- could find she had not been ment, however, commenting “all I gent. know possibility And based is that’s not an issue that we have to resolve jury might find that “Adams was where he before the is instructed.” be,” supposed argued abrupt stop might sup- itself January the midst of finding port negligence on Falconer’s *4 issue, payment returned to the medical sup- part. judge, noting trial a desire “to plying the with copy request court the can,” present much to the as I de- for admission that he had mentioned on Jan- clined to direct the verdict indicated but that uary arguing 18 and that it was “conclusive likely he would overturn a verdict actu- proof plaintiffs position the this case.” ally finding comparatively negli- Falconer acknowledged Falconer apparent the admis- gent. sion discovery but insisted that in later he had it clear that in fact he did intend to made Immediately upon jury’s the return of its recovery seek of all expenses, includ- finding sixty him percent negligent, verdict ing payment those for which had received requested judgment Falconer notwith- carrier, from his own State Farm. This verdict, standing pointing the out that the prompted following the comment Adams: “already court ... had reached a tentative my understanding Farm, Now is State judge decision.” The deferred the issue practice is, typical as its is inclined and will pending a formal motion but indicated “that right, recover on its own its with if likely grant motion[ ] the in I will come[s] regard to its dollars. I’ve seen that motion.” Falconer filed a later formal nothing plaintiff provided the against Taylor-Welch motion for JNOV on says that Farm to have State intends lien comparative negligence; Taylor-Welch filed rights they attempt get so could the opposition, motion, granted and court money allocated here. So what we have comment, entry upon without of the final potential here is the of a double recov- judgment. ery. ... Jury C. Reduction Award In response, Falconer that insisted “we’ve for Loss Medical court, already open told the court ... that they are to that and that began January 18,1996, trial So, pay so have to back. much for January and culminated in a verdict recovery, the double there is no double re- January On legal as the court addressed covery.” position Falconer reiterated his issues to resolved before selection that “this matter best handled after the completed, Adams informed specifically which is what AS insurer, Farm, paid that Falconer’s had says supposed 09.16.070[sic] the court is Falconer in medical bills and that Fal- $5000 do.” The court moved on to another payment coner receiving had admitted and the discussion ended. request answer to a for admissions. Adams payment after, day day claimed that the was “not a recover- That same or the expense litigation.” Taylor-Welch’s able Falconer insurers —Allstate responded payment evidently payment was “a collateral tendered GEICO — “subrogat- source” State Farm was as reimbursement for $5000 recovery.” ed to paid our Falconer further had as- State Farm if pay apparently accept- serted that the defendants “wanted to for Falconer. State Farm they payment extinguishing State Farm should have done ed [that] a Allstate’s long ago 09.16.070, [sic, Payments Coverage time under Farm’s “Medical inter- AS n directly expenses it recover from them.” Adams further regard to the medical est” that, paid argued purposes prevailing party for for Falconer. attorney’s fees, fact Allstate and “[t]he [that] Taylor-Welch, and After extinguished State Farm’s interest GEICO judg- proposed forms all submitted proves nothing [that] other than the fact proposed judgment ment. claims insurance carriers settled between incorporated a reduction of the form $5000 themselves.” subrogat- “the award for amount defen- ed medical lien explanation, the court entered Without judgment form included dants.” Adams’s proposed on the forms provision prevailing party award Adams, reducing Welch verdict costs and fees. Taylor-Welch by against awarding $5000 prevailing objected Adams —rather than the defendants’ forms Falconer — party appeals, chal- judgment. Taylor-Welch’s proposed As to and costs. Falconer reduction, jury’s acknowledged lenging reduction $5000 grant court’s the defendants’ insurers failure argued request to State Farm costs Adams. right of Taylor-Welch cross-appeals, had failed to establish a contesting defendants further entry offset under AS 09.17.070. Falconer court’s of a JNOV on the *5 that, event, any pay- argued negligence. direct of issue Falconer’s ments to State from defendants’ insurers award; jury’s Farm not reduce the net could II. DISCUSSION subject payments were at most to offset Appeal A. Falconer’s Allstate’s of —Effect expense against full claim of his medical Tender Mid-Trial State Farm’s of $8200, any offset was allowed he and before Payments Jury’s Medical on the Ver- prejudgment
was entitled to award of Prevailing-Par- dict and on Adams’s interest the amount of the verdict and to ty Status attorney’s reimbursement fees. appeal, argu On Falconer renews the request prevailing-party As to Adams’s Taylor-Welch ments he raised below. As to fees, attorney’s that argued Falconer pay he claims that no offset for Allstate’s payment Adams’s midtrial to State $5000 and, justified ment to State Farm was alter liability “a Farm was limited admission of natively, governed that offset should be damages” effectively that made Falconer by AS 09.17.070.2 As Adams he to claims prevailing party payment.” “the as to that “prorata attorney’s he [sic] that is entitled to at- prevailing party Falconer thus demanded fees, interest, costs and associated with the torney’s both defendants. $5,000payment to State Farm.” Taylor-Welch opposed and Adams both response argued demands. to insurer, prevailed position had he not and that takes All- state, prejudgment “paid payments was not entitled to interest “on off State medical Farm amount,” pay pursuant lien of ... to the Interinsurance paid by Company Agreement since Farm handling his bills State on the of money types subrogation Taylor- and he had never lost the use of the these of claims.” jury. argued Adams thus “[t]he Welch asserts that “[djuring properly of from [Falconer’s] course Allstate deducted verdict or, extinguished prevent recovery GEICO subro- State Farm to double more accu- rately, gation attempted payment.”3 Farm interest double (Alaska 1995) evidentiary dispute, Langdon (citing In the absence of exis- v. Cham- presents question (Alaska 1987)). tence offset law. of an of pion, 745 P.2d 1372 n. 2 Cf. Co., Rogers Luth & Babler Constr. 507 P.2d (Alaska 1973). 767-68 This court reviews (1) specifically, Taylor-Welch 3. More asserts: novo, "questions adopting de of law the rule of is not to a entitled set-off persuasive light precedent, law that is most reason, of expense his total medical claim of because policy.” Day, Bauman
4H fees, Agreement regard attorney’s handling types With of these proper- position claims,” takes the that the trial court subrogation Taylor-Welch implicitly ly prevailing party him to determined be the that, by extinguishing asserts State Farm’s negligent because he found not “is right subrogation, pay- mid-trial Allstate’s for none of dam- [Falconer’s] therefore liable subrogat- ment to Farm converted ages.” ed State Farm incurred on unsubrogated Falconer’s behalf into benefits 1. Reduction Falconer’s verdict subject became offset under AS view, Taylor- In our the issue of 09.17.070(a). right Welch’s reduction of verdict presents problem. This assertion twofold 09.17.070, governed AS which deals First, assuming validity payments.4 proof collateral It source theory, Taylor-Welch Welch’s would payments undisputed that State Farm’s initially have been to a Falconer’s medical entitled reduction the net right subrogation; hence, to a damage Instead, right award. to a (a) 09.17.070, Taylor- under subsection AS governed by deduction would have been sub- Welch would have been entitled to intro (b) (c) 09.17.070, sections of AS payments duce of those evidence reduce would have entitled Falconer to be made damage jury’s award. whole, any deduction, for all before attor- ney’s Nevertheless, fees he had incurred and all amounts arguing that Allstate “paid right or contributed to secure his off ... pursuant Company Interinsurance State Farm medical benefit.5 incorporates injury this total claim mathematical er- same from collateral sources that do not ror; (2) subrogation by that Falconer is not entitled credit for have a law contract. expended (b) in connection with All- If the defendant elects to introduce evi- *6 payment (a) section, state's because he admitted in his an- dence of under this the claimant request swer to a for that he was admission not may introduce evidence of payments attempting paid by recover to medical (1) attorney the amount that the actual insurer; (3) and his that he is not entitled to by obtaining incurred the claimant the
prejudgment payment interest on the because attorney the exceed amount of paid State Farm his medical bills and he did not court; by the awarded to claimant the money, lose the use and because “under (2) paid the amount claimant has or Agreement Company the Interinsurance men- right contributed to secure the to an insurance above, charged tioned interest is not or collected by benefit introduced the defendant as evi- subrogated 'medpay' payments.” on reimbursed dence. (c) First, If total amount the of collateral benefits arguments These lack merit. (a) introduced evidence of this under section Welch’s assertion of a mathematical error in Second, Tay- exceeds total amount the claim is itself the claimant Falconer's in error. (b) argument that introduced tion, evidence of lor-Welch's Falconer's answer to under this sec- request right for waived admission his the court shall deduct from the total recovery payments by to of medical is untenable award the amount value of the the given answer, ambiguous request (a) nature of nonsubrogated sum awarded of under subsequent given filing of dis- payments section (b) exceeds amount of under covery establishing materials his intent to recov- of this section. expenses, given section, er (d) (a) his medical the trial Notwithstanding of this willingness court's to allow Falconer to seek re- may defendant not introduce evidence of Last, covery of these (1) trial. factu- that under law benefits federal cannot be underpinnings prejudgment al of offset; reduced or argument unsupported by interest are the record: (2) policy; life a deceased’s insurance or silent record is as to whether State Farm (3) gratuitous provided benefits to the claim- charges prejudgment or collects interest when ant. recovering (e) apply does to a This section not note claims. See malpractice infra filed AS 09.55. action under provides part: 4. AS 09.17.070 in relevant Moreover, prejudgment since interest is a form (a)After consequential damages, of Steiner, the fact see Farnsworth v. finder has rendered an claimant, (Alaska 1981), a award to the court after fees, attorney prejudgment part awarded costs and award of interest becomes a defendant proper. may Hughes, the Thorsness, introduce evidence amounts received Bohna Cf. Gantz, Brundin, compensation ... claimant as for the Powell & P.2d (a) specific inter- Second, AS sis for or the terms of subsection under 09.17.070, Taylor-Welch agency agreement, legal bore burden effect of the or by “intro- to an offset proving right to payment Allstate State Farm. received” ducting] evidence of amounts only sign payment concrete that “[did] from collateral source copies of unfiled of several record consists by law subrogation not have Allstate, indicating purport- documents Thus, no re- she was entitled to contract.” edly Taylor-Welch acting on behalf of both proved she of the verdict unless duction Adams, payment tendered last-minute actually extinguished payment Allstate’s extinguish to to subrogation against State Farm “State right of $5000 State Farm’s 09.17.070(d), light Payments Coverage of AS Falconer.6 And Farm’s Medical interest required prove Taylor-Welch further to regard to the amount medi- in “a payment did not result that Allstate’s expenses paid cal on behalf of Charlie Fal- ,”7 gratuitous ... ] [Falconer].” to benefitt .. coner. carry this Taylor-Welch burden. did questions These raise more documents that, during the Although undisputed it is they than answer. Allstate Adams’s in- Allstate surer, Taylor-Welch’s. Taylor-Welch Farm had earli- that State explain for claim- fails what basis she has the trial tran- er on behalf of ing payment credit for Fal- only script post-trial pleadings contain coner, does record not establish ap- passing payment. On references for such a credit. Even factual foundation conclusory peal, Taylor-Welch makes assuming might be enti- interagency agreement of an “on assertions payment, tled credit Allstate’s she fails handling subrogation types of these portion to establish what of Allstate’s $5000 claims”; supplies she no citations evidence her, portion payment is allocable to and what assertions, supporting record these Adams, Moreover, Allstate’s insured. she have of an inter- found evidence exactly fails show what medical agency agreement kind was meant to reimburse: ascertain, no asserts. As far as we can less awarded Falconer than total presented evidence was below that would expenses; All- the ba- claim for medical whether enabled the court determine Ha, (Alaska 1992); A handwritten remark Guin 020186640/3321040275. on the *7 1281, (Alaska 1979); Chism, "Upon receipt 513 1287 Davis of Allstate sheet states: 475, (Alaska 1973). any $5,000, It follows # check 68757113 in the amount of judgment under AS Coverage reduction Falconer’s Payments Farm’s Medical interest only appropriate af- 09.17.070 would have been regard the amount of adding prejudgment ter interest expenses paid on behalf of Charlie Falconer will insured, award. against extinguished Taylor be Allstate’s Welsh, insd, and GEICO's Don Adams." The 24, July 09.17.070(a). State Farm letter to GEICO is dated Liberty Phillips 6. See AS Cf. 1992, Co., 1173, (11th refers State Farm claim number 02- Mut. Ins. F.2d Cir. 0186-640, 1987) ("The and lists "Carla T. Welch” as GEICO’s placed law has the burden on insured; expresses offset.”). State Farm’s belief that defendant show a definite amount of Taylor-Welch responsible "is our insured’s February expenses as [the a result copies record contains of three relevant The accident,” 1992] states it is State Farm’s Farm, a documents: an Allstate check to State subrogation practice as resolve issues amica- "to "Facsimile Cover Sheet” from Farm bly expeditiously possible,” requests Allstate, a and letter from State Farm to GEICO. "agreement GEICO's at this time to honor our is Allstate check to State Farm numbered issuing separate directly interest to us check (pre- appears January to be dated presence of at the time of settlement.” The these 1996), sumably "payment bears notation unexplained: documents record subrogation claim 02-0186-640 in behalf no record discloses as to the circum- information of Karla Welsh and Don Adams.” State Farm's they stances under which were submitted to the face "Facsimile Cover Sheet” indicates on its superior provides insight court and into approxi- that it was transmitted to Allstate at p.m. January whether the court considered them before it en- mately 4:00 1996. The cover judgment. parties tered refer to the None sheet lists as the "Insured” “Falconer/Welsh" their refers claim number documents in briefs. partial state’s check reimbursed State Farm for the ment to as a “constructive expenses same medical awarded against settlement” Falconer’s claim entirely Taylor-Welch remains unclear. And Taylor-Welch, Adams. Yet like explained why has not she should receive a surrounding has failed to establish the cir- against jury’s full credit cumstances, terms, legal sig- contractual award, opposed expenses proa to either payment nificance of Allstate’s to State reduction, gross rata or a reduction from that, Farm. therefore We conclude on this amount Falconer’s medical claim. record, Falconer’s to attorney’s claim fees against Adams must fail. sum, In the record contains documents reflecting payment Adams’s insurer to sum, superior court erred in reduc- Falconer’s, unauthenticated, they are then- ing Falconer’s payment verdict to account for presence in unexplained, record of his medical did not abuse its Taylor-Welch them in fails even mention awarding discretion in costs and fees to circumstances, briefing. Given these we Adams, instead Falconer. hold these decline to documents estab- receipt lish Falconer’s of collateral-source B. Cross-Appeal —The payments is entitled to Trial Court’s Award as to JNOV jury’s deduct from the her. Falconer’s Comparative Negligence. us, presently On the record before we con- After found that Falconer clude that the trial court lacked sufficient sixty percent negligent, comparatively evidentiary deduct basis to collateral Falconer moved for a notwith jury’s source from award of standing point, arguing the verdict damages.8 there was no support evidence to finding negligently. that he acted The trial prevailing-party attorney’s Denial of granted Taylor- motion. against Adams decision, appeals Welch the trial court’s ar reason, For much same must guing negligence that Falconer’s anwas is conclude Allstate’s mid-trial sue properly of fact that should have been State Farm does not entitle Falconer to an jury.9 left to the attorney’s award of Adams. that, responds Alaska Rule because none of Civil 82 allows fees to party gave testimony witnesses indicat- prevailing to “the in a ing negligently, civil that he had driven case.” The verdict found and be- non-negligent candidly cause and awarded no dam herself admit- ages against nothing wrong, him. ted that Falconer Falconer’s assertion of had done prevailing-party depends entirely finding thus status there was no reasonable basis for a upon pay- comparative negligence.10 his characterization of Allstate’s Falconer alterna- recognize parties 8. We that a tort claimant not be sume should and their will be insurers *8 injury. protect against possibility reimbursed twice for the same See Luth unable to double the of Co., 761, Rogers recovery through pro- negotiations separate v. & Babler Constr. 507 P.2d 766 1973). (Alaska providing ceedings. that an unsuccessful " "may defendant of introduce evidence amounts sources, plaintiff proper received the from collateral 9. "It is well established that the role of however, 09.17.070(a) court, permits, AS does this not on review of motions for directed require, judgment notwithstanding assert verdict or for the defendants to collateral source ver- dict, weigh conflicting judge plaintiff's claims as offsets to is not to evidence or verdicts. Accord witnesses, when, here, credibility ingly, prove the of but is a defendant rather to deter- fails evidence, unsubrogated payments, mine the viewed in ap source whether when the collateral light nonmoving party, propriate deny most favorable to' the is recourse for the trial court is to verdict; appeal such that reasonable men could in unsup reduction of the an not differ of Russ, 66, reduction, reversal, judgment.” ported their remedy Hahn v. 611 P.2d 67 the correct is (Alaska 1980) (citations omitted). opportunity prove not a remand for a second up the claim. We that note Falconer consis tently acknowledged Taylor-Welch’s Although argues that Falconer that subject negligence firmly he received from State Farm were to a was established as matter 1347, Plutt, subrogation. pre- We find no reason to law Green v. 790 P.2d under traffic; wrong Taylor-Welch’s argu- coming vehicle in the lane tively contends that scantily in An- point “is contained both identified the vehicle as Adams’s. ment on this witness, Norum, be deemed abandoned her and should other Mark confirmed brief’ adequate briefing. oncoming presence of an but did not lack of vehicle being identify it as Adams’s. Adams denied argu- waiver that Falconer’s We conclude wrong in lane of traffic but did not see Taylor-Welch’s discus- ment is well taken. not apparently and did claim accident negligence the issue of Falconer’s sion of far left-hand lane on Seventh Ave- cursory Af- paragraph. single, consists of a nue was unobstructed.13 Officer Bartholo- applicable setting ter out standard mew, at the who arrived scene some time notwithstanding the granting collision, after the testified that neither Fal- verdict, Taylor-Welch simply asserts that Taylor-Welch reported coner nor jury, having was in decided that Adams not Nevertheless, responsibility. Bartholomew traffic, free to con- wrong lane of was stopped that Falconer he had confirmed said stop abrupt that was clude Falconer’s vehicle, something for “an or a obstacle explained and therefore amount- adequately him.” And further front of Bartholomew negligence.11 ed to essentially Tay- was what testified argument oversimpli him, and told too. lor-Welch Adams issue, rejec presupposes that a fies the for it evidence, Given this could certain- negligence against tion claim of of Falconer’s ly accepted Adams’s claim he was justifies automatically assumption an blocking rejected Falconer Falcon- and heart, At negligence by Falconer. Taylor-Welch’s testimony to the er’s argument ipsa loquitur:12 is a claim of res However, contrary. it far from obvi- find that an simply assumes unex acceptance ous that Adams’s version negli plained stop presumptively establishes supported finding events could have gence. Taylor-Welch authority cites no is, negligent Falconer’s actions —that provides meaningful support discussion abrupt stop unnecessary that his this assertion. reasonably it that he did not believe to be the record reveals no Our own review of necessary.' indicating that affirmative evidence Falcon- Considering Taylor-Welch’s cursory negligent. Taylor-Welch er’s stop was evidence, stopped conclusory both that Falconer discussion testified unexplained, abrupt stop on- that an because his turn was obstructed an assertion Haslett, (Alaska 1990), who Grimes decide it believed and disbelieved Hahn, (Alaska 1982), testimony 611 P.2d what to discount. Without Adams to (Alaska Bottcher, blame, very stop Clabaugh abrupt 1976), and, above, argue jury's scrutiny cate- he does not that these cases indic[a]ted to the gorically finding negligence by preclude both found Falconer had the lion's share of collision; (60%). are drivers who involved a rear-end responsibility for the accident The trial rather, argues only that there insufficient erred when overruled determina- support finding evidence in this case to that he [Citation omitted.] tion. negligently. act did in fact ipsa loquitur bridge, 12. The doctrine of res "is a argument following dispensing requirement entire a plaintiff 11. The consists conclusoiy prove duty, duty discussion: specifically breach once established,” proximate cause have Clearly, testimony conflicting at trial was ordinarily applies does when accident why stopped abruptly so negligence. absence not occur turn, of his left in the middle of the course *9 Municipality Fire & Cas. Co. v. Farm Anchor- intersection. The could differ in their 726, (Alaska 1990) age, (quoting 788 P.2d weighing evidence. After assessment of this Inc., 1, Widmyer Skyways, v. Southeast 584 P.2d viewing credibility the evidence and of the (Alaska 1978)). participants, was decided lane, consequently, wrong at not in the a full did not submit trial tran- fault. The then determined that Falcon- 13. script. stop, Our review of the neces- sudden of Adams’ record thus er’s absence truck, sarily portion of negligence part and confined to the limited was on his assessed negligence up testimony transcript. It his at to to included in 60%. negligence, in to establish undo their settlement with Farm itself sufficient State to Thus, authority any support process. cite start result of her failure to as a to- day’s opinion, assertion, company we either one insurance this conclude pay expen- must for the or deemed to have waived her twice same loss Welch must be granting time-consuming negotiations sive and claim of error as to the order Fal- efficacy notwithstanding proceedings of uncertain judgment coner a the ver- must take place. comparative negligence.14 diet on required by This undesirable result is not III. CONCLUSION principle statute or of common law. reasons, foregoing For we AFFIRM apply, Alaska Statute 09.17.070 does be- superior judgment by entered only applies cause that statute to amounts as to We also AFFIRM the Adams. court’s by received a claimant “from collateral granting judgment order Falconer a notwith- right subroga- sources that do not have a ” standing the verdict on the issue of his com- right tion .... Farm State obtained the However, parative negligence. because we $5,000 subrogation paid it when Falconer’s reducing conclude that the court erred in expenses. Since the statute does not
jury’s apply, the common law does. judgment against Tay- VACATE the entered lor-Welch, law, entry Under the and REMAND for of an common when State Farm $5,000 it conforming subrogated became amended with the to Fal- expressed opinion. variety views in this coner’s claim. State Farm
options might which it have exercised or- MATTHEWS, Justice, might der to Chief with whom collect this claim. It have Justice, EASTAUGH, joins, dissenting permitted Falconer to include its claim in his part. Taylor-Welch, action Adams and which case Falconer would have re- GEICO, today’s opinion having Under Farm, quired pro- to reimburse State less Allstate State Farm State attorney’s rata prosecuting costs and fees for claim, pay Farm’s have will might the claim. Farm have State inter- the same amount the same loss to Falcon- pressed vened in action Falconer’s merely er. Double here thus not might claim on its own. Or State Farm have fear, reality. it is a asserted the claim the defendants’ Today’s opinion acknowledges sug- this but negotiated- privately. insurers and it See gests parties can undo double (Alaska Denley, Rice v. 944 P.2d n. 5 payment “through negotiations separate or 1997). Op. proceedings.” n. If State 8. Farm agrees pay evidently back to Allstate and State Farm chose a combination GEICO, options. will have an unsatisfied of the first third It seems to subrogation permitted, could tacitly, claim which then be have at least Falconer to until, by obtaining prosecute money during satisfied from Falconer. its it claim set- pay $5,000 Farm, If agrees he accepting payment to State no tled the claim from recovered, will paid, one twice for the As the claim Allstate/GEICO. from, settle, very same loss. But is the result Farm’s to it had a to do this. settlement, brought appeal given timing which has But this today’s opinion changed. responsible might Given Farm its share of case, pro-rata appeal it seems fees incurred costs agree relinquish doubtful that will prosecution Falconer in the successful $5,000. Pulp hard-won And it is no means the claim.1 Edwards v. Alaska See (Alaska 751, 754, clear Corp., that Allstate and will be able to 920 P.2d 755-56 GEICO State, (Alas- party litigation. See Kristich State Farm is not a joined 1976). party Until and it is unless deci- ka pay sion as to whether Falconer's costs should share of fees can be made. *10 416 Cos.,
1996); complicating A factor in this is that Argonaut Ins. case Cooper v. 1976). (Alaska resulting expenses Falconer claimed medical P.2d 525 $8,000, the of a over but from accident little may plaintiff law not recover At common jury expenses of the awarded medical subrogee has subrogated claim $5,000. argued slightly more than Swearingen Aviation settled. Brinkerhoff court, argues appeal, before the trial 1983). (Alaska Corp., of evidence that the absence Thus, leaving for the moment Falcon- aside $5,000 paid by Farm was the same State $5,054 in jury award of er’s claim that the $5,000 by jury the the reduction awarded not all the ex- expenses did include He from the whole claim. should made Farm, by the trial court penses paid State jury ver- notes that after the announced its correctly by deducting from the acted dict, discharged, it he re- but before However, the court should have de- verdict. quested the court direct the the was the termined whether settlement specify expenses which it had not awarded. so, the product litigation. If court of objected the The defendants information question the of should then have decided was not obtained. who, Taylor-Welch, Falconer and as between party of prevailing purposes the court- is Co., Citing Drilling M Wood Diamond awarded fees costs.2 (5th Cir.1982) 1165, 1171 cases 691 F.2d apply therein, does not the Alaska Statute 09.17.070 cited Falconer contends that by a from col- claiming to amounts received claimant party duplication is on burden the right lateral have a of subro- sources which damages to show that the assessed gation. that State Farm It uncontested it previously have “been covered.” right subrogation. had a It should follow Taylor-Welch nothing cited the con- has apply and the AS 09.17.070 does trary. accept I rule. would Today’s opinion common law asserts does. findings why The trial made court no implicitly argued paid by it expenses concluded that the State Farm, paid when Allstate/GEICO expenses the Farm coincided the subrogated payment Farm’s unsub- became by acci- found have been caused the rogated and thus to AS 09.17.070. defensible, possible dent. It is that there is Op. at 411-412. read I have unexpressed, I but basis for this conclusion. great find that brief with care cannot aspect the would therefore remand this Indeed, implicit argument. I could find the ease to trial court for a determination But if mention of AS 09.17.070 all. such expenses whether made, argument had lack been would expenses paid by State Farm. Accepting position merit. would such proof this question burden should be on plaintiff regain mean that a would and, if Taylor-Welch, is not satis- burden to claim a amount when the sub- fied, the court should conclude that the over- rogee its with a settles claim defendant. lap possible given minimum ability Such result would eliminate ex- subrogees independent- amounts the claimed and awarded to settle their claims penses.3 In ly. contemplated that event the court should mod- could have been This ify legislature enacting its reduction of in the tort reform package part. accordingly. is a of which AS 09.17.070 "catalyst” request speci- 2. The ed rationale would be akin to Falconer's asked theory pur- discussed and assumed valid for the fy as a which medical bills were not incurred State, poses Dep't our Natural decision (It result of accident. was known that Soc’y, Tongass Resources v. Conservation $5,000 claimed.) Farm had the first Or (Alaska 1997). Arguably the P.2d same might granted request have the defendants’ Adams, apply might rationale jury in to instruct the advance deliberations prevailed case fact that at trial should any part first that it should not award control, my opinion. because these party. a third problem posed pre- 3. The have been here could ways. might grant- vented in two The court *11 Falconer also contends pre-judgment him in
should have awarded by
terest on the State Farm. argument
This lacks merit. State Farm was
the owner of the claim. It could
settle amount it the claim might agree If
defendants to. that settle (and value,
ment was for less than full did example pre-judgment
not for inter include est) by the difference could be claimed Swearingen Falconer. See Brinkerhoff (Alaska Corp.,
Aviation
1983). The rule Falconer advocates would impossible subrogee compro
make it for a
mise a claim for value. discounted I foregoing,
Based on would remand superior
this ease court with instruc-
tions to determine whether the ex-
penses ex-
penses State Farm and make the reduction,
appropriate supported written
findings. ques- proof The burden of on this Taylor-Welch.
tion should be The court
should then consider whether the set- product litigation.
tlement If was, the court consider as a should in determining
factor whether prevailing party is the for the
purpose awarding attorney’s costs Finally,
fees. should the court determine
whether Falconer or
prevailing party based rele- on this other
vant factors award costs and accordingly.4 NICHOLSON, Appellant,
Daniel A. WOLFE, Appellee. K.
Deborah
No. S-8130.
Supreme of Alaska. Court
March briefed, agree cross-appeal inadequately I that Adams’s should af- has been point firmed and that