*1 FLEEGEL, Appellant/Cross- E. Monica
Appellee, BOYLES, Michael E.
ESTATE OF
Appellee/Cross-Appellant. S-9091,
Nos. S-9441.
Supreme Court of Alaska.
Nov.
Rehearing Denied Feb.
OPINION FABE, Chief Justice.
I. INTRODUCTION Fleegel sought compensatory Monica driver, Mi- from drunk injured Boyles,1 her in a car acci- chael Fleegel compensa- dent. The awarded tory damages, although it but found warranted, it made monetary punitive damages. no award for appeal Fleegel appeals a number of the On evidentiary rulings, trial court’s cross-appeals the trial court’s award of at- torney’s Fleegel. fees to Because court did .not abuse its discretion its evi- dentiary rulings appropriate- it and because ly although Fleegel was not concluded prevailing party, was entitled to at- she torney’s fees under the crime victims’ stat- ute, judgment. we affirm the trial court’s II. FACTS AND PROCEEDINGS
A. Facts Shortly p.m. September after 5:00 Fleegel waiting Monica sat her car light green to turn at the intersection of 36th Avenue and Denali Street Anchor- age. light changed, Fleegel’s car Before by pick-up was hit truck driven Michael Boyles. Boyles stop failed to at the accident scene. pain
After the collision felt in her nose, head, neck, chest, back, All and hand. injuries ultimately except healed injury Fleegel’s left hand. As result collision, of the tendon of left thumb, pulled off attachment wrist taking causing bone with it and an avulsion Callow, Wm. Grant Law Offices of Wm. Fleegel’s orthopedic surgeon fracture. testi- Callow, APC, Anchorage, Appel- Grant injuries long-term can fied that such result Cross-Appellee. lant and pain associated with certain activities. Waggoner, Paul Paul W. Law Offices of W. collision, years intervening since the Waggoner, Anchorage, Appellee and Fleegel undergone variety treat- has Cross-Appellant. injury. in- ments for her has received She medication,
jections anti-inflammatory had FABE, Justice, weeks, Before: a cast on her arm for three and has Chief MATTHEWS, EASTAUGH, BRYNER, varying periods splints and worn of time al- CARPENETI, every day Long- Justices. most since accident. lant, Boyles passed away "Boyles” appeal we will to refer to 1. Michael after this but continue granted Fleegel’s throughout opinion. was filed. We motion to substi- appellee/cross-appel- tute estate as the n sought to introduce as evi- injury wear- involves term treatment against outstanding at trial an warrant anti-inflammatory dence taking ing splint comply with re- Boyles for failure to ASAP advised Fleegel has also been medication. quirements. trial court deemed the at increased risk injury leaves her that the *3 warrant inadmissible. joint. in the arthritis premature Boyles planned present at trial a video- forty-two approximately Fleegel used Peach, gas- taped deposition of Dr. James a recovery during her initial sick leave hours of troenterologist Boyles in who treated the two parties stipulated The the collision. years prior Fleegel sought to ex- to trial. $5,417 expenses, in medical she incurred testimony ground Dr. Peach’s on the clude Mutual Automobile Insur- State Farm which Fleegel sought to that it was irrelevant. Fleegel and of both Company, insurer ance upon relied exclude medical records and dis- Boyles, paid. during testimony. by Dr. Peach cussed Boyles that he was under admitted objections The trial court overruled at the time of of alcohol and Valium influence testimony, finding Dr. Dr. Peach’s Peach’s in Boyles participated alcohol the collision. Boyles’s alcoholism relevant to discussion years programs in the both before treatment standing social and financial condition as a medi- He also had and after the collision. damages they punitive related to the claim. disorder, anxiety history that included an cal Moreover, Dr. the trial court determined that attacks, depression, post-traumatic panic Peach’s reference to the medical records of disorder, gastrointestinal and various stress permissible because these other doctors was related to alcoholism. disorders the foundation for Dr. records formed opinion. agreed the trial court Peach’s But accident, Municipality An- After the packet Fleegel that the “actual of rec- leaving the charged Boyles with chorage deposition” that were included ords injury accident and reckless driv- scene of an Fleegel sought later should not be admitted. Boyles pleaded no contest ing. physicians present-two records of other sentence, Boyles of his was charges. part As Boyles, which con- had treated complete treatment recom- required to in Dr. file. The trial court tained Peach’s Safety Anchorage Alcohol mended request. denied (ASAP). af- Program Seven months Action jury a on De- The case was tried before Fleegel, Boyles was collision with ter the 14-17,1998. than a cember Other statement driving again charged with while intoxicated. attorney during that he by Boyles’s voir dire stopped driving after that He claimed to have by Boyles’s retained insurance car- had been incident. Boyles, represent rier to no mention or evi- Boyles’s insurance dence Proceedings B. during stipulation made trial. On seeking parties, give trial court did instruc- Fleegel against Boyles filed suit Boyles stating that “has insurance cover- punitive damages. Boyles tion compensatory and age.” liability acknowledged that admitted
“consumption of alcohol was one of the deliberations, juror beginning Prior to causes of this accident.” punitive damages ... directed] asked: “are Boyles company?” the insurance to Mr. or to Fleegel requesting filed a motion limine give you responded: “I cannot The court “be deleted” that all references insurance question. to that No evidence direct answer trial, or, in from the evidence at the alterna- regarding presented what [of insurance] tive, potential all insured damage may by Mr. items of be covered Farm Insurance be excused for cause. The Therefore, you may Boyles’s insurance. ruled that any particular speculate whether item of punitive coverage had relevance to damage insurance.” is covered discussed, damages it could be but that finding special verdict company providing the insurance The returned name of the (1) legal negligence of was a could not be mentioned. (2) injury statute, 09.60.070, Fleegel; Fleegel cause of suf- the crime victims’ AS $1,140 damages in fered these amounts: yielding judgment a total in favor of $7,500 loss, past past economic non-eco- ($6,662.29 $8,883.59 $2,220.90). plus loss, $1,000 loss, nomic in future economic judgments trial court entered amended $3,500 in future non-economic loss—for September January 1999 and (3) $13,140 damages; total Fleegel appeals a number of the trial against Boyles; should be awarded evidentiary rulings. Boyles cross-ap- court’s the amount of peals attorney’s fees award to against Boyles awarded should be zero. statute, crime victims’ AS Because made a Rule 68 offer of 09.60.070. judgment substantially exceeded the *4 award, the trial court determined that prevailing party, was the and award- III. STANDARD OF REVIEW $6,000 $1,990.71 attorney’s fees, himed We a trial review court’s decision to costs, expert and witness fees. After $50 admit or exclude evidence for abuse of disc $8,040.71 subtracting Boyles’s award of from admissibility retion.6 Decisions about the Fleegel’s compensatory damages award of evidence are committed to the sound discre $14,703.40, judgment the trial court entered tion of the trial court.7 willWe reverse $6,662.29. Fleegel evidentiary rulings upon review of the rec 60(b)2 Fleegel moved for Civil Rule relief ord aas whole we are left with the definite judgment from the on the basis of AS and firm conviction that the trial court erred 09.60.070, which awards “full at- reasonable ruling in its and the error affected the sub torney crimes, fees” to victims of certain rights party.8 stantial aof including driving while tri- intoxicated.3 The granted Fleegel’s al court motion and ulti- Boyles’s cross-appeal requires this mately parties determined that both interpret court to 09.60.070. AS As we have attorney’s fees-Boyles making entitled stated, independent judgment “[t]he stan pretrial generous settlement offer more dard of review is exercised award,4 Fleegel than the as the interpretation application when the of a Accordingly, victim of a serious crime. issue,”9 interpretation statute is at “[t]he trial court added one-third of net $6,662.29 ($2,220.90) recovery statutory compen- provision question of a ... Fleegel attorney’s sate for her by adopting [that fees5 under law we resolve] ‘the rule of 60(b) permits applicable Civil Rule a court to relieve a 4. See discussion of the law to the judgment including from a final for reasons “prevailing party” determination notes 35 infra mistake, inadvertence, neglect. and excusable & 43. provides attorney’s 3. AS 09.60.070 fees vic- 5. The trial court reasoned that because tims of serious criminal offenses: contingency agreement had a one-third fee (a) person injured A who has been or dam- counsel, $2,220.90, her the award of as one-third died, aged, may person or the estate of a who has $6,662.69, constituted a full award fee recover from the offender full reasonable attor- AS 09.60.070. ney wrongful fees in a civil action or death injury, damage, action if death or resulted Bobich, (Alaska 6. Bliss v. 971 P.2d 144 n. 3 (1) attempt part person on the of the 1998). prevent the commission of a serious criminal apprehend offense toor an offender who has (Alaska Ingersoll, 7. Dobos v. 9 P.3d offense, aiding committed a serious criminal or 2000). so, attempting police or to aid a officer to do offense; aiding a victim of a serious criminal 8. Id. attempt part the commission or on the the offender to commit serious criminal of- fense. Kearney, 9. Deal v. 1356 n. 4 statute, Under this (Alaska 1993). serious criminal offense driving includes 09.60.070(c)(14). while intoxicated. See AS coverage of insurance light prece- that evidence persuasive that is most law ”10 jurors: “I improperly influence the dis- reason, dent, policy.’ jurors agree speculate ... will as to insurance or not and whether it’s their ARGUMENT IV. rates will be affected what whether their Err in Its Did Not Trial Court A. The they The trial court also ruled that the do.” Rulings. Evidentiary mention the name of the parties could not carrier, Farm. ar- insurance State not err in admit- trial court did 1. The rulings constituted gues appeal that these ting prejudicial error. insurance car- without reference name. rier’s financial condition of a is a requested that in limine Fleegel’s motion considering a claim for factor relevant direct that no refer- court either Sturm, damages. Ruger & Co. v. punitive in exhibits and be made ences to insurance recognized wealth of a Day, we potential evidence, cause all or excuse for important factor that bears defendant is an by Boyles’s insur- were insured damages.12 We on the amount of carrier, Fleegel cited con- Farm. ance analysis applied in our this factor *5 would im- insurance that evidence of cern appropriateness of the jurors, might fear who properly influence Norpon Further in v. award Kotowski.13 damages award would high punitive that a more, Legislature in a the Alaska established insurance rates. raise their own statute, applicable subsequently enacted informative, that to this case but still of Flee- declined both superior The court may financial condi fact consider the trier of However, rule the court did
gel’s requests.
determining
when
of the defendant
tion
name
mention the
parties could not
that the
damages.14
punitive
amount
carrier,
Farm.
State
Boyles’s insurance
of both of her
Fleegel appeals the denial
Rhines,
justices of this
v.
all five
Shane
requests.
court,
concurring,
majority,
and dissent-
in
ing opinions, agreed that insurance
not err
superior court did
in
a. The
was relevant to a determination
particular
exclude evi-
denying the motion to
mem-
damages award.15 Two
punitive
of a
coverage.
dence
insurance
majority
that “evidence of
stated
bers of
appro-
arguably
relevant to the
is
insurance
insurance
The trial court ruled
damages,” but
punitive
priate measure
Boyles’s financial condition
had relevance to
judge’s decision to
concluded
punitive
and de
as it related to
was harmless er-
insurance evidence
cov
exclude
prohibit
of insurance
clined to
evidence
ultimately
found no
explained
reason
ror because
erage.
trial court
damages.16
liability
punitive
Justice
for
...
covers
ing:
if the insurance
“[E]ven
concurring opinion, advocated
Compton, in a
damages,
goes
it
compensatory
in-
trials
cases
for the use of bifurcated
financial condi
of the defendant’s
issue
11
damages.17 He
volving
punitive
claim
The trial court further determined
tion.”
1999).
(Alaska
(Alaska
Winfree,
13.
P.2d
971
v.
985 P.2d
999
175-76
10. Sauve
Ha,
1999)
1284
(quoting
v.
591 P.2d
Guin
(Alaska 1979)).
6n.
09.17.020(c)(6).
14. See AS
fact,
may,
Boyles’s policy
appears that
It
(Alaska 1983).
15.
is a of his financial resources and will refusing jurors to exclude all obviously degree affect the to which a defen- carried State Farm insurance. punished by punitive damage dant award.”19 Fleegel alternatively sought, if the permit
A number courts insurance evi- permitted insurance, to ex attempt por- dence to rebut defendant’s clude all who carried State Farm in tray poor pay himself as too an award of surance. The trial court denied punitive damages.20 These cases stem from request and ruled that “there won’t be plaintiffs attempt to introduce the de- mention company provid of the name of the ability pay fendant’s because of insur- ing coverage, you can voir dire on case, ance.21 In this defendant questions, insurance but no one can mention wanted evidence admitted of his insurance Farm.” appeals ruling, ar coverage. A review decisions in other guing that even an award has little or no jurisdictions indicates that no court has held rates, jurors’ actual effect introduction of insurance evidence is perception they have a financial interest prejudicial reversible error because it is to a unfairly preju the outcome of the case plaintiff, Fleegel argues. against diced them an award of dam Also, Alaska Evidence Rule 411 does not ages. *6 require reversal of the rul- court’s appeal Fleegel suggests On that at least ing. Fleegel argues liability that evidence of jury four members of the demonstrated dur- insurance, relevant, even if it is generally ing voir dire concern about insurance rates inadmissible under Evidence Rule 411. But rising because of lawsuit verdicts. Rule 411 liability establishes that evidence of not, however, challenge jurors did these insurance “is not upon admissible the issue grounds cause on the of either bias23 or person whether the negligently acted or oth- preexisting opinions as to what the outcome added.) wrongfully.” (Emphasis erwise should per- be.24 also did not a use Rule 411 require “does not exclusion emptory challenge any to remove of these against liability of insurance when jurors. four purpose.”22 offered for Liability another case; Boyles was not in contested this admit- liability.
ted juror The trial court focused on the a Whether is dismissed for relevance of insurance to financial cause is within the discretion of the trial J., (Compton, concurring). Commerce, 18. Id. Cody Country der v. Chamber 933 (Wyo.1997) (holding P.2d that trial (Burke J., Matthews, dissenting). 19. Id. admitting court did not err in evidence of defen- inability pay punitive damages dant’s where Florida, E.g., Humana Health Ins. Co. Inc. plaintiff failed to elicit on re-direct information Chipps, v. (Fla.App.2001) 802 So.2d 497-98 insurance, concerning whether defendant had (holding correctly that trial court admitted evi- proper which would have been rebuttal evi- indemnity agreement dence of to rebut defen- dence). large punitive damages dant’s assertions that a company award would force the into financial straits); Murphy, Wheelerv. 192 W.Va. supra 21. See cases cited note 20. (1994) ("A S.E.2d defendant's net worth punitive damages, is relevant to the issue of 22. Alaska R. Evid. 411. case, in this where defense counsel offered evi- finances, Murphy's meager dence of Mr. 47(c)(2). 23. See Alaska R. Civ. P. plaintiff's disclosing rebuttal evidence the exis- policy Murphy’s liability tence and limits of Mr. 47(c)(3). Virginia insurance is not barred [West either 24. See Alaska R. Civ. P. 411."); Rules of Evidence] 401-03 or Rule Wil- Church, carefully and the case con- the Roman Catholic The trial here court.25 potential juror’s insurance in parish involved a Roman Catholic sidered whether inter- potential jurors.32 relevance conflict carrier had same diocese as the We jurors most know that noted that distinguished est. .It Harmotta from Reich stat- cases, liability in but there is insurance only ing possibility that “there was church in- practice dictates that “we don’t common would called members be on to reimburse those quire the carrier is and excuse ... who church.”33 The same is true in this case. Moreover, Fleegel jurors.” has not shown If returned occurred as a result of any prejudice Boyles, Farm insureds against award State find no error. ruling.26 therefore We only possibility bearing have a would today argues holding that our The dissent cost, and that cost be minimal. Insur- rulings in Pen v. J.C. contradicts our Malvo already premiums into ance take account ney Company, Inc.27 Reich Cominco subject sig- that trials will insureds to some Alaska, Inc.28 These cases stand awards, damages nificant so a jurors proposition that who fall within certain automatically in- award would not raise all .47(c)categories be dismissed Civil Rule must premiums. sureds’ The financial interest Reich, recently Specifically, we for cause. jurors that State Farm insured allowing “per rule held that there is se Furthermore, speculative at case best. jurors challenges prospective for cause unlike the situations Reich and J.C. Pen- litigation.”29 with interest a financial jurors Penney ney, where the that J.C. knew posits that State Farm insureds dissent parties by the and NANA were affected present case. have a financial interest in. the suits, Farm not know that State insureds did jurors disagree for two reasons: We might State Farm was involved be affect- Farm insurance had who had State result, ed this lawsuit. As a we cannot litigation, interest financial indirect agree with the dissent’s that Civil assessment (2) they any possible were unaware of 47(c) required Rule Farm insureds to litigation. in the financial interest jury pool. for cause dismissed Reich, indirect we discussed whether Rule The dissent also contends that Civil disqualify interest was sufficient to financial 47(c) juries of requires the exclusion from 47(c). Reich held under Civil interest, persons then the trial court must dismiss from the *7 inquire into financial inter- court must those companies pool of that have di stockholders agree that a must in- ests. We trial court in of the rect financial interests the outcome quire financial known to litigation, companies actu about interest even if the are not however, juror. agree, the parties litigation.30 do not that al to the Reich also dis We. juror judge make an v. chal trial must to-a cussed Harmotta Bender.31 The known lenged jurors litigation. in in Harmotta were members of unknown financial interest the Glad, 202, 18, (Alaska 2002). 25. v. 205 28. P.3d See Dalkovski 774 P.2d 56 (Alaska 1989) ("The grounds listed in Rule (3), (4), 47(c)(2), approximate juror and which 29. Id. at 18. case, personal knowledge of facts involve judgments by the trial com- value court and are ("We Noey 23 now and hold that 30. Id. at extend discretion.”); mitted to the trial court's Mitchell jurors per stockhold- se rule that excludes as 892, 1964) ("We (Alaska Knight, 897 394 P.2d litiga- company which to the ers in a is a [a shall interfere with exercise of applies corporation to in a tion also stockholders judge’s] chal- [in discretion determination of but which is nonetheless which is not only lenges exceptional in circum- cause] outcome.”). financially interested in the miscarriage justice.”). prevent stances and to Although figure 26. returned a of zero for 371, (1992). Pa.Super. 601 31. 411 A.2d 837 the amount of after determin- warranted, ing Flee- that Id. at 838. gel challenge did not as inconsistent verdict point appeal. has nof raised on and she this Alaska, Inc., P.3d at v. Cominco 33. Reich (Alaska 2002). (Alaska 1973). authority Fleegel objected to Dr. note that dissent cites no foundation of
We relevance, support that testimony, the contention courts must in- Peach’s its Dr. and jurors potential financial competency testify form interests regarding Peach’s to is- jurors which the unaware. case, are particularly given sues of the he that specializes gastroenterology in rather than 2. The trial court did not err in exclud- psychiatry psychology. The trial court ing Boyles’s outstanding objections, determining Fleegel’s overruled arrest warrant. testimony that the had relevance and that adequate provided. been It foundation had The district court issued a warrant explained ruling: for this July Boyles reasons on arrest for failure comply requirements. Fleegel with ASAP punitive' damage This is case and sought to this warrant introduce as evidence standing and defendant’s social proof provided at trial. offer punitive damage to a condition are relevant seeking following reasons admission testimony regard- case. All of Peach’s Dr. (1) impeach Boyles by the warrant: show ing the alcoholism defendant’s is relevant ing probation that his had fact been re issues, standing social to those and finan- voked, why Boyles and to demonstrate adequate cial There’s an condition. foun- was not in court at trial on December testify regarding dation for Peach to Dr. The trial court ruled that evidence those issues: he treated the defendant admissible, reasoning the warrant not participated proceed- alcoholism and he that the evidence had a tenuous connec ings to have defendant to a committed tion with material issues this case and was hospital for further treatment. probative why Boyles not present was not The trial court allowed Dr. ref- Peach’s at trial. The court also determined that even providers other erences medical minimally if the it probative, evidence was partial because these formed a records basis generate waste time confusion opinions. for Dr. Peach’s enforcing about the details of alcohol treat ment orders. foundation, relevancy, addition to n trial, arguments competency made at warrant, Even without evidence of the appeal Fleegel argues had Fleegel was able to adduce evidence and by distracting an unfair effect arguments make the that no evidence existed generating sympathy Boyles. undue She Boyles actually recovery pro- was in a alleges Boyles used Dr. Peach’s testimo- gram; past had lied about ny improperly present hear- inadmissible participation program; in a treatment say inappropriate-information and other engaged manipulation had jury. having to avoid full brunt of his criminal imposed. sanctions The trial court did abuse its discretion *8 discretion; The trial court not did abuse its determining testimony Dr. Peach’s and ruling substantially impair the not did Boyles’s was relevant to the issues of social FleegeFs rights. therefore We find no error. standing and financial condition. Dr. Peach Boyles’s regarding “inability testified func- to by 3. The trial did not err admit- society” tion as a human in aas reasonable ting testimony Boyles’s gas- the of consequence health of his alcoholism. More- troenterologist. over, presented Dr. Peach some evidence Boyles presented condition, At trial Boyles’s the video related to includ- taped deposition Peach, ing hospital of Dr. David a doctor admission form that listed specializes who gastroenterology-diseases Boyles’s occupation as “disabled” the and intestines, stomach, Boyles’s problems and liver. Dr. nature of medical from Peach Boyles reasonably testified his treatment of which about the could infer that and Boyles the medical records that he The did received could not work. trial court physicians determining from other and alcohol treatment not err in that Dr. Peach’s testi- Boyles. regarding mony Boyles’s standing facilities to was relevant social they regarding Boyles[’s] the as related to record Mr. failure to financial condition and comply with claim. treatment recommendation subject by
which is matter addressed did not commit revers- 4. The trial court Indeed, those records.” Dr. Peach’s testimo- excluding error evidence ible ny provided repeated substance Dr. records contained in other medical attempts, subsequent abuse treatment re- Peach’s lapses, non-compliance with treatment file. Moreover, Fleegel recommendations. did Fleegel successfully prevented the of opportunity not avail herself to call Dr. Boyles’s at trial actual medical admission Peach as a live witness to discuss the desired records, though even these records were or to call records the doctors other medi- Dr. during exhibits Peach’s video used as disputed personnel prepared cal rec- trial, during Fleegel But deposition. later Therefore, ruling witnesses. ords as this supplement her exhibits with other sought to does not warrant reversal.34 Boyles’s in Dr. medical records contained file, doctor not re which the had Peach’s evidentiary The trial court’s decisions during deposition. to The docu ferred do not constitute cumulative re- error con Fleegel ments that wished admit quiring reversal. condition cerned medical near and his to enter time of collision refusal Fleegel presented appeal challenges has programs. treatment alcohol evidentiary several decisions the trial urges apply court. this court to She Fleegel trial court ruled that could not doctrine of “cumulative error” to find that her with supplement exhibits the medical harmless, if each individual error was even providing the absence of witness records deprived impact errors have her of explanation rec- an and foundation for the case, a fair trial. the record included “[t]hose It also records ords. found from which could make all evidence during have been Dr. Peach’s could discussed theory arguments consonant her and, discussed, they they deposition been had Therefore, of the case. the trial court’s rul- ... likely been admitted.” Addi- right ings not violate to a fair did tionally, it determined that trial, and reversal not warranted. prejudiced by the significantly exclusion in the these records because other evidence Trial Not B. The Did Err Court supported points for Flee-
record which Awarding Attorney’s Fees to a Crimi- presented. gel the records wanted nal Not the ‘‘Pre- Victim Who Was Any excluding error the medical records vailing Party” Under Civil Rules 68 because, as the ob- was harmless trial court and 82. served, Fleegel through able to show prevailing party cooperate Although evidence did not was the other explained: in his treatment. The trial court under Rule 68 thus entitled an award 82,35 attorney’s significant other in the fees under Rule “There’s recently attorney Ingersoll, purposes fees Civil 34. We noted in Dobos award of 2000), added.) (Alaska (Emphasis Rule 82.” that "medical P.3d records, notes, including opinions, doctors’ chart provides, part: Rule 82 Civil diagnoses, squarely within the business fall (a) Party. Prevailing Except Allowance hearsay exception rule.” But be- records agreed parties, prevailing otherwise *9 excluding the cause error medical records attorney’s party a civil be awarded case shall harmless, question we need not reach the was fees calculated under this rule. sufficiently the whether records were authenti- (b) Amount Award. to be records cated admitted under business exception. (2) prevailing party re- In cases in which the money judgment, the court award covers no shall states, goes part: party prevailing Rule 68 which 35. Civil "If an offeror in a case attorney’s percent prevailing party’s costs actual reasonable receives and reasonable rule], attorney’s offer-of-judgment necessarily [the under offer- in- fees actual fees which prevailing party be or shall considered the curred. proper purposes concluded that it behind court offset the other ... each entitled to award of fees.” against separate that fee award award to Fleegel as the victim of a serious crime. Boyles argues that the stat- crime victims’ 09.60.070, ute, “incorporates prevail- AS 09.60.070(a)provides Alaska Statute that a 82,” ing party restriction of Rule the rule injured may person has been recover providing attorney’s prevailing fees to the attorney’s fall from the tortfeasor reasonable However, party in a civil case.38 AS injury in a civil action if resulted fees prevailing party contains no re- 09.60.070 attempt part from an on the of the offender quirement appears to have been intend- commit a serious criminal offense.36 A apply independently ed to Rule of Civil driving “serious criminal offense” includes prior Cases to the 1997 amendment AS while intoxicated.37 We have never before (the statute) offer-of-judgment 09.30.065 addressed the interaction this statute with (the rule) offer-of-judgment Rule 68 defined regarding attorney’s other statutes and rules party” “prevailing as the “successful fees. regard to the main in the ac- issues legislature tion.” When in 1991 the 1. A “pre- crime be the victim need not 09.60.070,40 adopted AS victims’ crime vailing party” as Rule 68 to defined statute, provided attorney’s Rule 82 fees be awarded attorney’s under AS fees “prevailing party” in a case civil 09.60.070. defining enacting without term. The act Boyles argues should the crime victims’ statute Rule 82 amended “by requiring an attorney’s award of full reasonable not have received an award of fees attorney’s prevailing fees to victims of cer- prevailing party was the tain crimes.”41 This amendment therefore purposes attorney’s fees. contends provision that the allowing directed full attor- he prevailing party is the based on his ney’s replace par- fees for crime victims Rule 68 offer that exceeded award of attorney’s tial fees award that vic- the crime damages against argues him. He that as the tim could otherwise recover Rule 82 under prevailing party, attorney’s right fees prevailed had she the civil This action. preempts Alaska Civil Rule 82 Flee- intent, legislative consistent with the as ex- right attorney’s gel’s to receive fees under pressed then-Representative Dave Don- statute, the crime victims’ 09.60.070. AS bill, ley, sponsor rights of the victims’ attempted to reconcile “readjust[ ] .balance between victims provisions provide separately attor- perpetrators system making ney’s fees for victims of serious crimes and experience being involved in crime a parties pretrial who make a settlement “allowing little less burdensome” and victims generous more offer than the award. It attorneys of violent crimes to recover ... full “[bjecause determined that each statute can brought against person fees in civil cases applied doing here harm without th[e] who committed crime.”42 vehicle, boat, provides: 36.AS airplane 09.60.070 when the offender is intoxicated. (a) person injured A who has been or dam- died, aged, person may or the estate of a who has 09.60.070(c)(14). 37. See AS recover from the offender full reasonable attor- ney wrongful fees in a civil action or a death 82(a) supra See Civil note 35. injury, damage, action if the or death resulted Carlson, (Alas- Cooper 1973). ka part attempt the commission on the the offender to commit a serious criminal of- initially 40. AS 09.60.070 enacted AS fense. 09.55.601, and renumbered in 1994. (c) section, In this “serious criminal offense” 57, 25, § 41. Ch. SLA 1991. following means offenses: *10 100, driving Healing while Rights, intoxicated or another on H.B. Victims’ Before Comm, resulting Health, operation crime from the of a motor the House on & Social Educ.
1277 party 1997, prevailing based on the years after the are not to be six It not until was enacted, the concept, primarily was that on the relative eco- statute but crime victims’ of a that the offeror legislature earning powers established nomic situations met standards that certain parties.”45 settlement party prevailing the considered “shall be Moreover, interpretation the of federal fee- attorney’s of an award of purposes by indicates shifting statutes federal courts Proce- Alaska Rules of Civil
fees under the statutory offer-of-judgment an rule and Therefore, it enacted at the time dure.”43 fee-shifting coexist. Federal Rule of Civil awarding attorney’s fees to provision the Rule 68 differs from Alaska Civil Procedure victims, legislature could not the crime 68 in federal the recov- the rule allows 1997 offer-of- contemplated the specify does whether ery of “costs” and not party judgment prevailing definition attorney’s at- fees.46 Where “costs” includes legislature en- apply. And the when awarded, torney’s statutorily are fees offer-of-judgment the acted amendments Fair the Clean Air Act and cases under 1997, specifically not address it did rule in Act, rejection example, for Labor Standards statute. the crime victims’ preclude of Federal Rule 68 offer does not “prevailing have determined that the We post-offer Professors an award fees.47 limit of Rule not party” requirement 82 does Miller, indicate that Wright, and Marcus also attorney’s fees under ability to award attorney’s appropri- fees could be offset statutory standards provisions that use other ate, warning careful that “courts must be example, a separate Rule 82. For prohibition on the sort of automatic avoid attorney’s during a may fees spouse seek imposed by post-offer fees Rule 68.”48 proceeding under AS annulment divorce or affirm trial court’s award therefore “pre- We than Considerations other 25.24.140.44 the basis that a crime victim need fees on fees are vailing party” dictate whether such “prevailing party” to be awarded fee in a divorce not be a awards awarded: “Cost 25, 1991) (Alaska, attorney’s Servs., ... Legis. intent that fees be allowable tive 17th March prevail- by Donley, regardless Rep. who is the (summary Dave a divorce action of statement 71, 100). Johnson, prime sponsor ing party”); v. P.2d 76 of H.B. Johnson 564 rule, 1977) ("[T]he (Alaska 'prevailing party’ used 09.30.065(b); Civil Rule see also Alaska AS attorney's fees determination awards (c) 68(b) (providing judgment "[i]f Procedure, 82, Alaska Rules of Civil under percent finally court 5 is at least rendered applicable in divorce to awards of fees is not .... offeree the offer favorable to the than less actions.”). prevailing shall be considered the that offeror attorney purposes fees of an award of states, 68 Rule of Civil Procedure 46. Federal 82”). The court conclud- Civil Rule trial under part: "[Boyles] qualifies attorney fees ed: offer, [Fleegel], rejected by pretrial settlement days more than before At time 10 generous substantially more than may was defending against begins, party a claim Although court concluded award.” upon adverse an offer to allow serve prevailing party AS Boyles 09.30.065(b), defending against judgment taken to be may the same conclusion money property to the effect party for the Supreme Rule 68. In Court Or- reached under offer, specified then ac- in the with costs 7, (effective 1997), August der 1281 judgment finally 'the obtained crued. ... If the amendment accelerated the effective date of offer, more offeree is not favorable than 68, providing that "the amendments Civil Rule pay after the costs incurred the offeree must adopted paragraph of this 68 5 Civil Rule making the offer. applicable to all or after order are cases filed on Thus, 7, 68, August as amend- 1997.” Civil Rule Seafoods, 92 F.3d v. Trident 47. See United States 1997, applies in this because this case ed in case Cir.1996) ("[B]ecause 855, (9th attorneys’ 860 20, August was filed properly ‘costs’ under awardable as fees are Act], they scope Air are-not within [Clean 25.24.140(a)(1). 44. AS Nevada, 68.”); v. 56 F.3d Haworth of Rule Act). Cir.1995) (Fair (9th Labor Standards 1051 (Alaska Cooke, 625 293 45. Cooke v. P.2d Burrell, 1981) (citing v. P.2d Burrell Wright, R. Miller and (Alaska 1975)); Alan Arthur Houger, 48. 12 Charles Houger see also Marcus, (Alaska 1969) and Proce- (considering Federal Practice Richard L. former P.2d (2d 1997). 25.24.140, noting "legisla- § Civil2d 3006.2 ed. dure: that there AS *11 09.60.070, 60(b), attorney’s attorney’s fees AS the crime under Civil Rule rather than under Apart questioning 82(c), statute. victims’ fees under Rule the limitations Civil propriety requesting 82(c) of hypothetical full fees period apply. Rule does not Civil contingent arrange- in the context of a fee The trial did not court abuse discretion ment, Boyles challenge propri- does not determining Fleegel her did not waive ety hybrid specific fees or the calculation request attorney’s fees.51 We therefore method used court. Because attorney’s affirm the fee award on its merits. briefed, these issues were not we decline to reach them. V. CONCLUSION n Timing attorney evidentiary rulings motion We AFFIRM made fees by the trial We also AFFIRM the court. argues attorney’s fee awards. Fleegel court should not have awarded attor 09.60.070, ney’s fees under AS the crime Justice, BRYNER, with whom statute, victims’ a motion because for these Justice, CARPENETI, joins, dissenting. days was not ten fees filed within after the 82(c) judgment. date Rule Civil estab BRYNER, Justice, with whom period attorney’s lishes the time in which CARPENETI, Justice, joins, dissenting. requested: must be fees “Failure to move for disagree opinion’s I conclusions attorney’s days, fees within 10 or such addi concerning admissibility of evidence of allow, may time as tional the court shall be Boyles’s propri- insurance and the party’s as a right construed waiver ety denying FleegePs motion alternative attorney’s recover fees.” prospective exclude for all cause judgment The initial order was distributed policyholders. were State Farm I re- 29, 1999, January 14, May 1999. On points. verse on those requesting filed a motion superior judgment court vacate the initial EVIDENCE OF BOYLES’S INSURANCE judgment and enter a new conformed COVERAGE 09.60.070, with AS the crime victims’ statute. opinion superior The concludes that sought relief under Alaska Rule Civil
60(b), correctly court denied motion to permits which a the court to relieve Boyles’s exclude evidence cover- party from a judgment for reasons mis- take, inadvertence, age, reasoning that Alaska neglect Evidence Rule or excusable 411 did seeking preclude a where motion such relief is filed “within reasonable time.”49 evidence of a defendant’s wealth has rele- The granted independent court the motion for vance of fault in dam- relief from judgment finding ages on June that such case: “The trial court on the focused justice.”50 served relief “the interests of Be- relevance of insurance to Fleegel sought condition, cause relief from judgment purpose not excluded Rule under judgment provides 49.Civil which relief from or orders defined in Civil Rule states, order, judgment 58.1(c). part: or (b) Mistakes—Inadvertence—Excusable Ne- plaintiff’s 50. The order found: "Because coun- glect Newly Discovered Evidence—Fraud—Etc. — experi- sel’s affidavit shows that he and other upon just, motion On such terms as are attorney enced counsel were unaware of the fee may party’s legal repre- relieve a statute, attorney the failure to assert an fee claim order, judgment, pro- sentative from a final neglect. AS 09.60.070 excusable ceeding following reasons: attorney important pol- public fee statute reflects (1) mistake, inadvertence, surprise or excusa- motion, icy. Granting awarding fees neglect; ble statute, required by the will not cause unfair prejudice to the defendant.” (6) any justifying other reason relief from the operation judgment. Hatten, The motion shall be made within a reasonable See Hatten v. 670 n. 3 time, (1), (2) (Alaska 1996) (applying and for reasons not more abuse of discretion stan- year than one date judgment). after the of notice of the dard to review of relief from
1279
preclude
its admission if the trial court
Therefore,
trial
did not err
would
the
court
411.
cov-
probative
evidence of insurance
of that evi-
failing
that
the
force
to exclude
found
1
opinion’s analysis over-
erage.”
But
the
outweighed by
danger of
dence was
“the
authority
contrary
to the
persuasive
issues,
looks
prejudice,
unfair
confusion of the
the
important questions in
skips two
Here,
misleading
jury.”6
court
admissibility:
insurance
chain of
whether
balancing process pre-
never undertook
actually
evidence of
coverage
is relevant
by
403.
to me
scribed
But it seems
is,
and,
prejudicial
its
if it
whether
wealth
potential prejudicial
that
effect of
probative
outweighs its
value.
effect
outweighed
evidence far
disputed
whatever
correctly
probative
might
that
value it
have had.
opinion
observes
limited
While the
by
juror’s
is normal-
all-too-predictable
evidence of the defendant’s wealth
As
evidenced
case,2
punitive damages
it
ly
in a
“punitive damages
relevant
request to know whether
cov-
neglects
if evidence
insurance
to ask
of
to Mr.
directfed]
insur-
[are]
damages
evi-
erage
punitive
is relevant
jury’s
company,”
by
as well
ano-
ance
as
specific
facts of
wealth under
dence of
(which
damages
punitive
verdict
malous
Here, assuming
Boyles had
this case.
Boyles deserving
punishment
but
found
punitive dam-
that he was covered for
shown
punitive
imposed
damages),
no
coverage
ages,3 evidence of
jury
allow the
court’s unfortunate decision to
prove
to
his wealth. For
been irrelevant
coverage
Boyles’s
to learn of
insurance
recognized,
Supreme
Mexico
Court
New
opened
precisely
the kind of
the door
“[Pjunitive
liability coverage
not
damages
is
designed
pre-
danger that Rule 403
used measure true
which can be
asset
causing
misleading the
vent:
confusion and
therefore,
...
it
punishment and
should
jury-
assessing a
by the
be considered
standing.”4
sug-
Wisconsin
defendant’s
Mexico and
have both
New
Wisconsin
way: “Although
recently
the same
has
ruled
gested
coverage
that evidence of
would have
assessing punitive dam-
we
that when
note
prejudicial
pro-
than
excluded as more
ages
permitted to know evidence
bative,
if it were relevant.7 Texas
even
wealth,
coverage
wrongdoer’s
insurance
agrees.8
recently,
And most
Idaho has
is not evidence wealth.”5
the same conclusion.9 Indeed —bar-
reached
exception
for a
ring a narrow
carved out
coverage
even
evidence of
And
presented
appears that
situation not
here —it
wealth in a
relevant to
issue of
deemed
case,
addressing
no
court
this issue has
punitive damages
Rule 403
other
Evidence
denied,
(Wis.
omitted), review
3.
it is
coverage
categorically
would be
irrelevant to
ability
pay puni-
Allis,
173;
defendant's
Baker,
the issue of a
City
at
7.
744 P.2d
West
See
specific showing
tive
absent
N.W.2d at 888-89.
635
actually
punitive
defendant was
covered for
Fiberglas Corp.
damages.
Owens-Coming
v.
Cf.
Owens-Coming Fiberglas Corp.,
8.
972 S.W.2d
See
35,
Malone,
(Tex.1998) (dis-
972 S.W.2d
40-41
at
po-
tinguishing between evidence of actual and
case).
tential wealth
56,
378,
Ready,
3 P.3d
59
v.
134 Idaho
Schaefer
Here,
equivocated
Boyles's
is-
counsel
on this
(Idaho App.2000):
sue
whether
was covered
when asked
damages. Although
hired
ruled that
[trial]
ITJhe
case,
defend the
counsel insisted
Farm to
Readys’
coverage
punitive dam-
insurance
speak
company
he
said
could not
"the
ages
awards was not admissible
[coverage].”
"[m]y position is that there is
outweighed
substantially
probative
value
Specifi-
prejudicial impact.”
potential
Armstrong, 106
4. Baker v.
N.M.
insur-
cally,
felt that the "mention of
the court
(1987).
173
justified
higher awards than are
ance invites
Co.,
ruling
[Ida-
in accord with
City
the facts.” This
Power
West Allis Wis. Elec.
(citations
Evidence] 41![.]
Rule of
N.W.2d
ho
Wis.2d
case,
present
there
found such evidence admissible.10 The nar-
was no conceiv-
ably legitimate
Boyles’s
exception
row
curative one:
it
need for evidence of
is a
allows
coverage.
plaintiffs
For
to admit evidence of
counsel
injected
coverage;
fact
he
impover-
rebut a defense
defendant is
himself
*13
Boyles
pay punitive
ished and
unable to
did so not to
evidence that
therefore
refute
damages.11
punitive damages.
unable
to afford
To
contrary,
counsel
infor-
defense
relied on this
Rhines,
today’s opinion
Shane v.
which
theory:
mation
forward a novel
be-
to
that
guiding authority,12
just
holds out
as
is
only truly guilty
cause
party—
—the
such a case: it considered whether evidence
pay punitive damages,
could not
innocent
his
coverage
of
was admissible to rebut the de-
targeted
punish-
insurer
not be
should
poverty.13
fendant’s affirmative claim of
place.
inment
per
plurality
Neither
curiam
nor
Shane’s
separate opinions purports
theory
either
to
only
of its
Yet this
of relevance —the
the-
ory
coverage
disputed
coverage
hold that
of
that
evidence
should be
except
actually
realistically
support
disingenu-
a
admitted
as
needed to cure
tended to
—is
misleading impression
fundamentally
pub-
left
affirmative evi- ous and
subversive to the
poverty.
notably,
regulated
dence of
And
in
lic
a
interest.
Insurance is
indus-
Schaefer
Alaska,
Ready,
punitive damages
try
a
everywhere
more recent
case
in
it is
else
as
almost
nation,
in which
of
a
in
proving
recognizes
admission
evidence
the state
a
coverage
sought
strong public
defendant’s
in fostering
to cure af-
interest
trust
poverty,
firmative evidence
protecting
the Idaho
insurers and in
Su-
consumers
preme
approach
buy coverage.15
Court held
that
better
choose to
Once insurers
pay
damages,
would be to
with one
punitive
exclude
stroke both the
contract to
claims for
then,
consequent
affirmative
strong public
defense and
need
state has
interest
ensuring
coverage
rebuttal.14
fairly provided
that
fairly paid.
claims
It would be inimical to
then,
Schaefer,
Shane and
to
both serve
public
interest
avoid
insurers could
necessity plays
illustrate
indispens-
that
legal responsibility for
obligation
contractual
balancing
able role in
Evidence
403’s
simple
expedient
insisting
they
that
process.
arguably
Evidence that is
relevant
parties
are innocent
and that their insured
but
potential
preju-
has an
to
obvious
cause
punished only
drivers should be
to the extent
only
dice should be admitted under the rule
personal ability
pay.
of their
to
realistic, case-by-case
when a
assessment re-
veals an apparent need for its
Correspondingly,
simply
admission that
there is
no factual
predominates
confuse,
potential
over its
arguing
liability
to
basis for
that the insurer’s
mislead,
unfairly
jury.
prejudice
pay punitive damages
to
punish-
amounts to
opinion
point
10. The
Op.
court's
tries to stand the
12. See
at 1271-1272.
by observing
its head
that “no court has held that
introduction of insurance evidence is reversible
(Alaska 1983).
13. 672 P.2d
prejudicial
plaintiff[.]”
error because it is
to a
Op.
authority
at
simply
1272. Yet the absence of
jurisdictions
14. See 3 P.3d at
Cases in
cited
reality
reflects the
that few trial courts have ever
thought
coverage
applying
pur-
to admit
the same rule
indicate
Schaefer
poses comparable
jurisdictions
to those at issue
routinely
here:
to
that
those
evi-
exclude
prove
deserving
punishment
that a defendant
dence of
cases.
punished
should not be
because the defendant’s
id.
See
pay-even
innocent
though
insurer should not have to
presumably
the insurer
has contracted
See, e.g.,
(requiring
per-
AS 21.03.010
"[a]ll
paid
just
point,
been
that.
do
The salient
transacting
sons
a business of insurance in this
then,
uniformly rejects
is that case law
the ad-
comply
state”
Code);
with the
Alaska Insurance
evidence;
authority
mission
supports
of such
no
(authorizing appointment
AS 21.06.010
theory
prejudicing
its admission
on the
insurance);
of statewide
AS
director
21.06.020
plaintiff’s
acceptable
case is
more
somehow
than
insurance);
(establishing
AS
prejudicing
division
case.
defendant’s
(empowering
21.06.080
director of insurance to
See,
e.g.,
Murphy,
Wheeler v.
192 W.Va.
Code).
enforce Alaska Insurance
(1994).
452 S.E.2d
efforts,
Despite Fleegel’s
insurer
best
defense
insurer:
to an
ment
Boyles’s coverage
damages,
counsel used
as the foun-
premiums
cover
accepts
pun-
empty-chair
defense:
pay
an insured driver’s
dation
successful
obligation
Boyles’s
emphasized
simply a
debt
a tactic that
absence
business
ishment
view,
my
pay.
jury
poverty
contracted to
and that
invited the
company has
legally permissible
unjustly
reason
then,
no
insurer had
there was
conclude that his
been
inform the
Boyles’s
holding
bag-abandoned by
to allow
counsel
left
truly guilty
was insured.
party.
Defense counsel’s first
closing argument
words
reminded
finding
can
record sustain
Nor
was the
insurer
real
long
Appellate courts
error.
harmless
*14
silly to
an
pretty
argue
interest:
that
“It’s
insurance cover-
recognized that evidence of
company likes a
driver
hit-and-run
insurance
easily
juries; courts have
age
inflame
can
pro-
a drunk
Defense counsel
driver.”
prejudice
recognized
that the risk
likewise
Boyles
emphasize
to
not
ceeded
that
poses especially
in such
inherent
by
deterred
an award of
dam-
grave dangers
cases,16
any
ages, since
doesn’t have
assets.”
“[h]e
way,
prejudice can cut either
act-
where the
point
And the
cemented
coun-
was
defense
two-edged
depending on the
ing as “a
sword
jury:
quite
final
“[I]t’s
sel’s
words to
poverty of
And
wealth or
defendant.”17
they’re
really trying
get
that
clear
not
to
recognized that
have further
courts
money
Boyles.
back from Mr.
He doesn’t
prejudice
danger-
unfair
is no less
sword of
[Hje’s
any capacity
pay....
not the
have
to
wielded
an insured defendant
ous when
target here.”
injured plain-
an
than
in the hands of
when
tiff.18
Boyles
eyes
Yet in
of the
law
Here, Boyles’s attorney artfully wielded
Fleegel’s only target
had
—whether
convincing
against Fleegel. After
the sword
or not. Evidence of his cover-
insurance
proceed-
at the
the trial court
outset
possible coverage
imma-
age
both
—was
—or
Fleegel’s
ings
deny
motion to exclude evi-
to
a
as a
matter of law and irrelevant
terial as
coverage, Boyles’s counsel
dence of
immedi-
by the
matter
fact. But as illustrated
jury during voir dire that he
ately told the
question concerning punitive damages
jury’s
by Boyles’s
hired
insurer.
had been
its,
verdict, Boyles’s strategy
ensuing
and
everything
did
she could to contain
inev-
intended effect.
nonetheless had its
damage flowing
this revelation:
itable
Today’s
to
issue,
Boyles’s
opinion
declines
nonetheless
downplayed the
allowed
she
error,
inability
an
to locate
professing
find
attorney
opening to dwell on
no obvious
trial,
any
holding
“introduction of insur-
coverage
stipu-
and
cases
that
during it is
because
trial
ance evidence is reversible error
to an instruction at the end of
that
lated
ruling
a
Yet this absence
pretrial
prejudicial
and told
to
mirrored the court’s
plaintiff.”19
A novel
precedent
more than
counsel
beside
no
defense
took
point.20
purpose
prejudice
is to
an
pains
tactic whose sole
to tell it at
outset-that
merely
it
represented by
lawyer
opponent
hardly proper
a
insured and was
condemned;
has never before been
his insurer.
hired
behavior,
See,
wrongful
engage
be-
City
centive
e.g.,
v. Wis. Elec.
to
16.
WestAllis
Power
Co.,
(2001).
company
cause
knew
N.W.2d
889
the insurance
248 Wis.2d
635
jury.
poverty to
plead
insured could
omitted.)
Whitman,
(Quotation marks
v.
17.
& Health Ins. Co.
358
S. Life
J,,
(Ala.1978) (Jones,
concur-
So.2d
1027
Op.
ring).
at 1272.
Schaefer,
(quoting Kemezy
3
v.
See
P.3d at 59
incomplete
that it
observation is
Cir.1996)):
Peters,
(7th
F.3d
ignores
Supreme
care-
simply
Court’s
the Idaho
Ready,
fully
opinion in
enough
or indemnifi-
reasoned
is bad
that insurance
[I]t
Schaefer
categorically
exclude evidence
to
which would
reduces the financial incentive
avoid
cation
a
coverage
to refute
wrongdoing....
even
offered
It
worse if the cost
would be
fell,
inability
pay.
at 59.
See 3 P.3d
reducing
claim
the financial disin-
of insurance
prejudices plaintiff
opinion
assuming
fact that the tactic
a
rath-
But the
is mistaken in
than a
wholly
challenge
er
defendant is
irrelevant.
for cause raised
discretionary issue. Alaska
Civil
point
More to the
opinion’s
is the
refusal to
47(c)(10)
categorically require
followwell-settled law that allows evidence of
granted
challenge
cause to be
toas
coverage to be
when
admitted
offered
juror
prospective
who is
client of a
party seeking
opponent’s
refute
who has a
interest in the outcome of
inability
pay punitive
affirmative claim
pro-
applying
the case.23 Our decisions
these
damages.
opin-
And more telling still is the
explicitly recognize
they prohibit
visions
legitimate
identify any
pur-
ion’s failure to
relationships
“certain
between
pose
could conceiv-
parties”
judge
“[a]
does
ably
serve when offered on
of a
behalf
deny challenge
discretion
for cause
Boyles,
actively
like
asserted that he
relationship
once that
estab-
has been
poor
damages.
pay punitive
was too
lished.”
record, then,
simply
On this
it is
unrealistic
find
either an absence of error or harmless
view,
my
presiding
when a court
over a
error.
punitive damages claim
an insured
allows
*15
jury
defendant
tell the
that
defen
DISQUALIFICATION
STATE
OF
company
party
dant’s insurance
is the real
FARM POLICYHOLDERS
plaintiffs
“target”
interest —the
real
—this
disagree
I
opinion’s
also
with the
decision
inevitably
genuine
information
a
creates
risk
affirm the
court’s denial
jurors
policyholders
who are
of the same
alternative
poli-
motion to
Farm
excuse State
insurer,
be,
who think
they might
or
will
cyholders
serving
jury.
from
on her
perceive
financial
a
interest
in the outcome.
certainly
The financial interest here is
no
contingent
As a
remedy
be used in
more attenuated than the one
at issue
event that
the court denied her motion to
Alaska, Inc.,
Reich v. Cominco
preclude
where we
insurance cov-
47(c)(12)
erage,
required
held that Rule
automatic
superior
asked the
court for
disqualification
identify
prospective jurors
dire
of all
voir
examination
who
excuse
were shareholders in an
panel
for cause all
Alaska Native cor
members of the
poration
litigation
by
party
insured
that was not a
State Farm. The court de-
motion,
nied the
but
precluding any
instead
had financial ties to the
men-
named defendant
by
Farm
barring any
indirectly
tion
State
and stood
benefit
name
from the out
inquiry
identity
prospective ju-
as to the
come of the case.25 And this
is at
interest
rors’
In upholding
ruling,
insurers.
to-
least as substantial as
the one Malvo v.
day’s opinion posits
juror
Co.,
Penney
a
“[w]hether
is
J.C.
where we held that Rule
47(c)(10)
dismissed for cause is
categorically
within the discretion of
required exclusion of
opinion
jurors
court.”21 The
then con-
prospective
all
who had
accounts
superior
cludes that the
Penney
court did not
quali
abuse
technically
J.C.
therefore
its discretion.22
company’s
fied as the
“debtors.”26
Op.
client,
creditor,
debtor,
21.
at 1272.
principal, agent,
or
family
party
of the
member
of a
attor-
22. See id. at 1272-1273.
ney. ...
47(c)
Alaska
Civil Rule
states:
(12)
interest,
person
That
has a financial
Challenges Cause. After the examination of
for
taxpayer
permanent
other than that of a
or a
prospective jurors
completed
is
and before
recipient
fund dividend
in the
outcome
sworn,
juror
may
parties
challenge any
is
case.
juror
juror challenged
for cause. A
for cause
may
every question perti-
be directed to answer
Alaska, Inc.,
24. Reich Cominco
at
56 P.3d
inquiry. Every challenge
nent
for cause
(Alaska 2002);
Penney
22
Co.,
see also Malvo v. J.C.
be
following
shall
determined
the court.
(Alaska 1973).
512 P.2d
grounds
challenge
are
for cause:
18-20,
at
ward,
guardian,
person
That the
is the
landlord, tenant,
employee,
employer,
partner,
26.
when I therefore dissent. expressly reveals the retained insurer portrays the insur- existence plaintiffs “target,” true it seems to
er as that, triggering
me terms of concerns bias, role be-
potential insurer’s virtually indistinguishable
comes Hence, party. play it would as an actual
role I
in this situation would conclude must as a
insurer be treated supra accompanying text. Op. at 28. See note 23 and 1273-1274.