*1 trust, of the deed trust note deed paying crediting
without ever Mistic or PEDERSEN, Appellant, Einar R. of her Mistic with value claim. Judge Hunt ruled that Atlas did breach ZIELSKI, M.D.; Emergency Michael explained: the contract. She Inc.; Room, Fairbanks Memorial Hos undisputed It is made a pital; Hospital Lutheran and Home So timely proper claim for her insured America, ciety Inc.; Michael J. Flan under policy. interest Defendant M.D.; nery, M.D.; Kibbey, William claim, never denied the which denial is a Diaz, Tony M.D., Appellees. precedent subrogating condition itself property. interest in the her insured No. S-3694. Therefore, paid mortgagee when it note, $21,000 full value Supreme Court Alaska. paid plaintiffs payment amount Dec. policy. under claim When Atlas note, bought the had it a real value of Rehearing Denied Jan. $21,378.04. the property When sold and paid holder Atlas of the Deed of Note,
Trust it was entitled to receive $21,378.04
only plus value of the note
costs, However, paid etc. it was $42,378.04
accepted the full value fact, thereby, in receiving
note bene-
fit subrogating plaintiffs itself to
claim. Because has not it denied her (and having
claim no basis demonstrated doing so),
for it breached its contract plaintiff.
with Atlas,
Thus was the failure of when Rutzebeck,
accepting payment pay
Mistic credit Mistic the value of her
claim, Judge triggered Hunt believed agree. Although
the breach. We this oc-
curred property after divorce and divi-
sion, timing is irrelevant. rights fixed
Mistic’s as of the time insured Judge loss. Pursuant order, quitclaimed
Gonzalez’s Mistic her in- in the property
terest Halibut Cove to Rut- quitclaim
zebeck. Her deed to Rutzebeck purport convey
did not her interest proceeds,
the insurance nor inter- was this acknowledged
est or divided the decree.
We conclude that the decree no effect obligation pay
on the of Atlas to Mistic her proceeds.
half of the insurance
Summary judgment under issues herein is AFFIRMED. case
review proceedings.
REMANDED further *2 Clark, Flanigan, Michael W. Walther & Pedersen filed suit Flannery, Anchorage, Flanigan, appellant. Kibbey, for and the appellees other on Novem- 8, 1988, claiming ber that his Middleton, Middleton, R. Collin Timme & malpractice. caused medical Specifical- Zielski, McKay, Anchorage, appellees *3 ly, clamping he claimed that his aorta for Room, Emergency M.D. and Inc. forty-four kept minutes blood from flowing Lazar, Wiles, Delaney, Howard A. spinal long, to his cord for causing too Brubaker, Inc., Hayes, Reitman & Anchor- paralysis. alleges: He “Reasonably com- age, appellees for Fairbanks Memorial petent experienced and Vascular/Thoracic Hosp. Hospitals and Lutheran and Homes Surgeons are aware of haz- America, Gibbs, Soc. of Inc. Sanford M. clamping ard and avoid the aortic heart Brown, Moran, Hagans, Gibbs & Anchor- vessels in such to less than circumstance[s] age, Diaz, appellee Tony for M.D. provide minutes or use a shunt to blood Clapp, Leonard, R. Marcus David F. flow around clamped during area Hughes, Thorsness, Gantz, Powell & Brun- operative procedures.” din, Fairbanks, appellees Flannery, for Following operation Pedersen asked Kibbey, M.D. and M.D. Flannery Dr. what had caused paraly- Flannery sis. Dr. him told that “he wasn’t RABINOWITZ, C.J., BURKE, Before sure but that could have been caused [it] MATTHEWS, COMPTON, [Moore, and JJ. spinal swelling cord due to a blow [the] Justice, participating.] spine to the ... or because lack of blood legs.” flow to the Pedersen was transfer- OPINION Hospital red from Fairbanks Memorial MATTHEWS, Justice. Hospital Providence Anchorage in early 1983. December There he asked Dr. Em- malpractice In this medical case the trial ery what had paralysis. caused his granted summary judgment court in favor Emery replied “it that was a combination of the defendants based on the statute of including of factors blood loss from dam- limitations.1 We genuine conclude that is- aged swelling spinal aorta [and] sues of material fact exist as to when the cord.” Flannery Neither Dr. nor Dr. cause of action accrued and whether defen- Emery gave opera- an indication that the M.D., dant Flannery, estopped Michael J. tion had caused paralysis. Pedersen’s relying on the statute of limitations. We therefore reverse. wife, Gloria, also discussed FACTS2 paralysis the cause of Pedersen’s with Dr. Flannery. Flannery She states that Dr. 22,1983,
On November Einar Peder- injured sen explained a two-car collision near ... that the aorta was severed garden hose, Fairbanks. Pedersen’s aorta was severed like a and he had that in the accident. brought aorta, He was to Fair reattach the and he had Hospital banks Memorial where immediate work fast to in min- accomplish this utes, surgery performed by corrective damage spinal Drs. or to the cord could Flannery Michael J. Kibbey. William occur. I took this to mean that he ac- The severed ends of complished aorta were operative procedures clamped forty-four for a total of twenty say minutes minutes. He did not actu- stop order during the flow of ally accomplish blood took him 44 minutes to operation, reattachment. procedure. After the Peder- despite He also said that legs permanently paralyzed. efforts, sen’s spinal damage could oc- provides reviewing judgments grant- AS 09.10.070 in relevant In based on orders ing summary judgment, person may bring we take that view of the ‘‘[n]o an action ... non-moving facts which is most favorable to the ... unless commenced Hoblit, party. Carter v. 1085 n. 1 years." within two (Alaska 1988). This statement of facts is made perspective. from that Ford, Flanigan blood, suit bruising During
cur,
lack
because
pro-
of medical records to
cord,
he said had
obtained a set
duce for Ford and for review Pedersen’s
said the
He also
occurred.
point,
total,
experts. At this
Flan-
biomechanical
might
permanent
not be
igan
that.
medical records
tell as to
reviewed
only time would
nothing in
he saw
them which
states that
discussed the
She states that she
malpractice
medical
claim
suggested a
with Pedersen
him.
Flannery
that Dr.
occurred to us
it never
wrong.
one of Pedersen’s
anything
summer
Kibbey
done
had
Flanigan
Ford
called
experts in the
case
Quite
contrary since Dr.
malpractice may have
tell him that medical
impression
us
left
both with
had
*4
life,
during
operation performed
the
occurred
Einar’s
and had accom-
he had saved
Kibbey.
by Drs.
and
At about
procedures just
plished
operative
time,
similar
Flanigan
the same
received a
planned
he had
them.
counsel,
report
Ford’s
who had ob-
from
Hospital
Memorial
Fairbanks
The
expert
from an
tained similar information
story.
different
records tell
somewhat
Thereafter, on
he had retained.
November
discharge summary
Flannery’s
states:
1988,
8,
filed.
this suit was
problem
post[-]oper-
biggest
“The
was that
DISCUSSION
spinal
patient had an anterior
atively the
secondary to
of
A.
repair
Statute
Limitations
syndrome
cord
aorta.” The records
transected thoracic
is
parties agree
The
that this action
also
that Pedersen’s aorta was
show
requires
governed by AS 09.10.070 which
approximately forty-four min-
clamped for
brought
years
an action to be
within two
Although
utes.
the records were available
“after the cause of action had accrued.”
discharged
time he was
to Pedersen
Ordinarily, personal injury
AS 09.10.010.
Hospital on
from
Memorial
De-
Fairbanks
plaintiff
in
when the
action “accrues”
1983,
5,
did not obtain or review
cember
However, Alaska, along
jured.
most
them then.
jurisdictions,
adopted
other American
discovery
rule under which the statute
attorney,
an
Bob Beco-
Pedersen retained
begin to run until the claimant
does not
novich, on or about December
discovers,
reasonably should
dis
have
defending
purpose
him
initially for
covered,
es
the existence of the elements
he had been
on the traffic ticket which
Safety
cause of action.
sential to his
Mine
as a result of the accident. Even-
issued
Stiles,
288,
756
291
Appliances Co. v.
P.2d
tually
to look
Beconovich was instructed
1988).
(Alaska
injury.
into
for Pedersen’s
potential claims
so,
process
doing
Beconovich as-
discovery
gained general
The
first
rule
attorney, Paul Bar-
sociated with another
currency
malpractice
in
cases
medical
against
rett.
claims
the other
Potential
strongly
most
where its need was felt
driver,
against
the manufacturer of
and
injury did
manifest
when the medical
vehicle,
Company,
Ford Motor
Pedersen’s
of limitations
itself until after
statute
investigated
were found to be
Dobbs,
Keeton,
run.
D.
R. Keeton
had
W.
in
spring
unsupportable. Sometime
Owen,
D.
Keeton on the
&
Prosser and
referred
his current
(5th
1984).
Pedersen was
at 166-67
ed.
Law Torts §
counsel,
Flanigan. Flanigan
Michael
was
spread malpractice
The rule
cases
soon
against
in
claim
e.g.,
interested
brought against
professionals,
other
Company.
experts
Bookman,
He
Ford Motor
retained
Inc.
657
Greater Area
1982)
investigate
(Alaska
(attorney
had
obtain
malpractice),
and
828
general. E.g.,
his medical records from Fairbanks Memo-
then
tort
in
cases
Int’l,
experts.
Helicopter
Hospital
rial
review
these
Hanebuth v. Bell
(Alaska 1984)
(“[I]t
in
is the
obtained
June P.2d
medical records were
problems
plaintiff
faced
A few
later suit was filed nature
of 1985.
months
cause,
its
discovering
injury
Ford.
defendant,
rule,
Application
occupation
discovery
how-
ever,
dependent
are
governs
applicability
discovery
facts that
often
rule.”)
States,
unclear.
aWhen
first learned
(quoting Stoleson v.
United
injury
(7th Cir.1980)).
or its cause is a
which may
fact
F.2d
dispute.
sometimes
be
When
Although
the need for the
first should
injury
have learned of an
or its
plain
rule most clear
cases where
frequently
Welch,
cause is
debatable. See
tiff’s
undiscovered and
910 WITZ, Justice, the second RABINO Chief misrepresentations,
Flannery’s equitable estoppel concurring. in requirement of fact. It is analysis, The court’s characterization the main question which must closely related question in this case whether Pedersen’s concerning application of the be answered possibly was reasonable is misfo- Pedersen's actions discovery rule: whether cused. of his inquiring in as to the cause notes, correctly As the court were reasonable.9 chargeable any negligence the cause Peder- mere fact that attorney of his for statute limitations apparent have been sen’s possible purposes, and that “[i]t reading medical an informed negligent failing in lawyers were to review mean that necessarily does records not mal- his medical records look for medical misrepresenta reliance on the Pedersen’s 1 practice.” Flannery was unreasonable. tions of Dr. in significant I think the course in arisen other fact situations have Similar litigation, (one Flanigan Pedersen-Ford provider of jurisdictions where a medical attorneys) reviewed misrepresentation services made nothing in them medical records saw plaintiff, by a but was which was relied on suggested a malpractice medical Courts medical records. contradicted my view, In the medical claim him. have held that the fact true Flanigan’s posses- records which were appeared in the medical state of affairs notice. In placed sion him other necessarily precluded estoppel. records words, these medical should have records 1050, Nutty Hosp., F.Supp. 571 v. Jewish Flanigan, commencing February led (S.D.Ill.1983); Almengor v. Dade 1054 1986, into conduct 892, (Fla.App.1978); County, 359 So.2d If paralysis.2 the cause of Pedersen’s Joseph’s Hosp., Krueger v. St. N.W.2d reasonable, Flanigan’s inquiry was Ped- 18, (N.D.1981); v. 20-21, 25 Witherell cf. malpractice ersen’s medical cause of action 6, 10-12, Weimer, 52 Ill.Dec. Ill.2d accrued, pur- for statute of limitations (1981) (plaintiff rea 421 N.E.2d 874-76 poses, February of 1986.3 product sonably should have known leg causing prescribed doctors was Justice, COMPTON, dissenting part. nonetheless, problems, prove estoppel), aff'd, the chance A alerted the fact that he or 259, 263-64, Ill.Dec. 118 Ill.2d she has cause of action when (1987). N.E.2d 72-73 discovers, should have she discovered, all REMANDED. the existence of elements REVERSED and Hoblit, (Alas- applicable peri- computation limitations Carter *8 1988), requirement ka we that there is no held od. reasonably in to be a fraud victim act order statutory discovery of a entitled benefit 23, 1984, report 2. reads Dr. Martino's November growing rule. We noted trend of courts "to the part as in follows: negligence in move toward the doctrine that legs surgery his flaccid. Current- [A]fter misrepresentation pos- trusting not will excuse ly, paraplegia on with examination he has deprive per- itive defrauded willful fraud or the sensory at level HI.... consistent Jaeger, remedy." (quoting Id. W. son of his injury, probably or with at TR 10 1515B, (3rd ed. § on Contracts at 487 Williston light preservation posterior In the 11. 1970)). in We in Carter that actions observed function, may very Well be due to ische- this involving statutory discovery rule rea- the ruptured aorta mia suffered as a result of his estop- element of sonable reliance remains an ensuing surgery. the argue pel. that the Pedersen does not Carter added.) (Emphasis holding this should be extended to case. superior necessary, on the court regard plaintiff If remand that a 1.In this the court notes misrep- physician’s charged attorney should determine whether a generally lapses the of an trumps any negligence acting resentation insofar as constructive no- behalf attorney. patient's diligent investigation impact tice the
9H period, of action. It is the may essential to his or her cause essential elements rea person law that sonably settled when be discovered. Palmer v. Borg- alerted, put person inquiry is so the on Warner, 632, (Alaska 1990). 818 638 P.2d person the notice. This means that (other Op. omitted). at 908 citations “deemed to of all facts have notice which It is clear from this statement that the inquiry reasonable disclose.” would Mine identifying court is least separate two Stiles, Safety Appliances 756 P.2d Co. accrual dates. of these Neither is the dis 288, (Alaska 1988) (quoting 292 Vigil v. covery rule date we adopted accrual Spokane 796, County, Wash.App. Bookman, recently and reaffirmed as as in (1986)). P.2d republished the Borg-Warner, Palmer v. It just “inquiry” is not clear what 634 n. 3 See referring throughout opinion. court is to its Welch, also State v. 981-82 discovery adopted court rule this (Alaska 1991). separately One identifiable Bookman, Greater Area Inc. v. plaintiff accrual date is “when has in (Alaska 1982),contemplates sequence formation sufficient to alert a reasonable First, by plaintiff. plain- activities person potential to the fact that he has a discovers, reasonably or tiff should dis- Op. phrase cause of action.” at 908. This cover, the of all elements existence essen- expresses meaning different than that tial his or her cause action. Presum- expressed in “the existence of all elements ably discovery this can result from action,” essential to a cause of Mine Safe number of unrelated or interrelated activi- ty, 756 “the P.2d at existence of all plaintiff may actively ties. The in- solicit action,” cause of elements [the] formation, person may a third volunteer Bookman, phrases P.2d at two plaintiff, pain information to the may I thing. which consider to mean the same examination, lead a new medical date, It is also an earlier accrual since the may itself Any uncover information. plaintiff does not to be aware of as these lead to of the elements much information to alerted to the be fact essential to a action. The cause of exam- “potential” that he or she has a cause of ples are activity endless. Whatever the action as is the case when information ex information, source dis- tends to the “essential elements” of a covers, discover, should action. case the court elements essential to a cause of action. At concludes that was alerted point begins statute of limitations put notice1 when he “knew run. paralyzed following he became a serious As the last following sentence automobile accident which resulted ma demonstrates, quote court contem- jor surgery.” Op. plates a far different course of conduct: The second date is accrual somewhat rule, Under the the cause of understand, more difficult to because of action accrues in when circuity reasoning. If court’s formation alert a sufficient to “reasonable be immedi- to the fact he has a ately productive,” the cause of action ac- point, cause of action. At that crues, begins begin protect i.e. statute of limitations his or her run, “if, rights statutory period, and he within is “deemed have notice *9 may reasonably of all essential elements be dis- inquiry facts which reasonable added). If, however, (Emphasis Op. covered.” would disclose.” a reason inquiry it is the the cause of immediately able would not be Yet accrual of action productive, puts inquiry on the of action the notice in cause none that if, saying theless statutory place. accrues within the the first The court is that inquiry patently The notice to which Chief Justice Ra- is not as “an affirmative the same concurring opinion binowitz templates duty refers in his con investigate potential causes of action” all inquiry "a reasonable into the cause required by Borg-Warner. Palmer v. (Footnote omitted). paralysis”. of Pedersen’s accrued, legally er sufficient reason to toll the stat- the cause of action after statute, running estop during relying the ute or from the [the defendant] accrue, Co., may again i.e. the of action cause on statute.” Gudenau & Inc. again. may running Inc., Insurance, start statute P.2d Sweeney instance, conduct For of discovery agree not rule I do may engag- inquiry, defendant hinder i.e. contemplates separately identifiable these fraud, concealment, conduct; ing in and like applied by The rule accrual dates. may of the incident render nature itself adopted rule in is not the court fruitless, find inquiry failing i.e. wreck- Indeed, rule we is a Bookman. desolate, rugged age of aircraft in ter- an rule, is a in Bookman. It harsh abandoned rain, despite military of the best efforts v. Borg-Warner, in Palmer because ground Yet and civilian air and searchers. “upon held this court inquiry if a dis- reasonable would have death, of the claimant notification closed facts which tend to establish a suffi- duty investi has an affirmative estate filing support cient basis to a cause of gate potential before all causes action action, (Em the statute of limitations will com- expires.” the statute of limitations running is put is mence when the on phasis original). If this indeed the law, duty inquiry under a to investi notice. What constitutes a “rea- was gate potential inquiry” by all causes action sonable should be measured an expired. Applying standard, by the statute the court’s objective simply and not rule, lose, Pedersen should Borg-Wamer particular inquiry made whether however, just Inexplicably, lost. as Palmer person is reasonable. apparent Pedersen does not lose. What is This court concludes that Pedersen was cause of action is to be correct, inquiry on notice. If that is he is presumed nothing more acci from than an to have notice of all facts deemed which injury.2 dent and an disclose, inquiry just reasonable not agree I do not that once also particular inquiry the facts which his dis- notice,
put limita- inquiry the statute of closes. long is somehow tolled as as the tions my question, view this if indeed it is reasonable, plaintiff making unpro- case,” question in the “main whether ductive, or her efforts establish his inquiry would have disclosed reasonable A cause of action. facts tend to establish a sufficient which disclose facts tend to estab- filing a support basis to action support filing lish a sufficient basis to permitted within the time statute If an does cause action. The question is not whether facts, limitations. inquiry may disclose such inquiry was However, reasonable. it also have been reasonable. objective must an standard be one be does not application disclose such facts is anoth- achieve uniform statute because “there today’s ly, Borg-Wamer’s application 2. Until stated in comment about cause rule crashes, Borg-Wamer malpractice Palmer v. Widmyer to a medical air taken from v. Southeast claim, Borg-Wamer Inc., could be rationalized an (Alaska 1978), Skyways, exception air crash rule. This published just ap- two months after article Borg-Wamer, could be 636 n. 6 derived from peared attributing most crash the deaths of air ("air neg- normally crashes do not occur absent poor judgment pilots. victims in Alaska to .the ligence, es- weather even in inclement ... quote The article contained a National from the tate should have known Safety Transportation in- Board’s chief accident poten- being date of informed of the crash that Alaska, vestigator who stated: carrier, pilot, tial claims existed light plane The common denominators [in However, manufacturer.”). Peder- or the since experience, are lack of lack Alaska] crashes duty inquire triggered by his knowl- sen’s edge and, training operators, for the commercial following paralyzed seri- that “he became supervision. lack of ma- ous automobile accident which resulted in *10 News, Daily September Anchorage jor at surgery,” Borg-Wamer simply an is not air exception crash to the rule. Ironical- col. 6. limitations, a I concerning result believe best serves facts that cause of action through affected interests. apparently reasonable inquiry. Obviously his focus was not on his medical importantly, More based on the record providers. care Would a person agree us I do not before Pedersen was differently? have acted Inquiry presup- notice. notice poses person that a is alerted to the fact The record before us discloses that Ped- potential that he or she has a cause of ersen seriously injured was in a traumatic Op. action. at 908. As this rule is stated automobile impact collision. The was so Safety Appliances Stiles, in Mine Co. v. severe ruptured, that his aorta was necessi- tating the statute of limitations special use of clothing survival begins “discovers, person to run when the minimize hemorrhaging internal pending reasonably discovered, or should have surgery. Loss of body blood into the cavi- existence of all elements ty essential to his depriving was system cardiovascular cause of action.” This is oxygen restatement necessary and fluid to sustain adopted rule this court in bodily functions. surgery Immediate Bookman, Area required Greater Inc. v. “repair” (sew the aorta it back person If a together), does not and thus save Pedersen’s life. discover all the elements of Although his or her legs responsive his were to stim- action, cause reasonably could not ulus admission to the hospital and elements, have discovered all per- prior such surgery, they were not afterward. son is not alerted to the fact that he or she partially Pedersen is paralyzed. potential have a cause of action. The Pedersen and inquired his wife both statute of begin limitations does not to run physicians paral- about the cause of the person “discovers, until the ysis. They given information that should all discover” elements. Id. complete, was less than arguably and that
Discovery by person of all could misleading. be viewed as Medical elements of a cause of action is not the records indicate that the flow of blood was discovery through same as interrupted reasonable in- period longer for a than one of quiry tending physicians to establish a suffi- acceptable said was facts support filing cient basis to complications might arise. The records action. also state that the was “second- ary” “repair,” meaning that it was case, my “main” in this operation. However, caused neither view, person is when a reasonable treating physicians, consulting have discovered the existence of all the physicians hospital directly ever stated elements of his or her cause of action to Pedersen or his wife that the against providers sued, the medical care was the cause of the paralysis, medical thereby triggering “inquiry my notice.” In negligence aside. view that is no means clear. Pedersen looking for someone to whom he person could Even if a understood that liability injuries, attach including surgery paralysis, caused the would a rea- the driver of the person’s automobile with whom he sonable attention directed be collided, the manufacturer of his auto- providers own his medical care to the extent mobile, and even the ambulance crew that require reasonableness would him to transported hospital him to following investigate surgery? Would a reason- the collision. He sued and person settled with the likely able be more to look to those manufacturer of his automobile. apparently culpable, The set- most such as the other approximately $600,000. driver, tlement was for automobile the automobile manufac- turer, That was not a nuisance value settlement. possibly the ambulance crew? It cannot be said that Pedersen person was not Would it be reasonable for a alerted to the fact that he proceed theory culpability had a lay accident, cause of action automobile actors involved in the or that he failed to uncover itself was the reason the had to manufacturer *11 saving surgery? Was it rea- the life have attorney to person’s contin- LOEB, sonable for the Joyce Representative as Personal apparently culpa- most pursue ue to those Bouffioux, of the Estate of Teresa having hospi- ble, reviewed even after Appellant Cross-Appellee, incomplete argu- tal Do the records? given per- misleading answers ably and L & L Invest Leo RASMUSSEN the reasonableness physician son’s affect ments, general partnership, a d/b/a inquiry? Boxhoy, Appellees and Cushman Cross- minds could I conclude that reasonable Appellants. how would differ on S-3450, Nos. S-3464. A
respond in the circumstances described. presented whether Peder- jury Supreme Court of Alaska. person, sen, should have Dec. his all the elements of discovered providers against his care action medical sued years
more than two before he them.
Assuming court’s conclusion that notice put on
Pedersen legs paralyzed,
learning that his immediately following the made accident,
surgery that resulted from the rule applied
under the formulation of the Borg-Wamer, court in duty under
should have been investi-
gate possible injury. all causes include the conduct of his obviously
would providers. Only care one
medical allegedly make
physicians failed to a full
disclosure Pedersen and his wife. It is physician’s
difficult to conclude that
alleged fully failure to disclose matters to had on rea-
them would have effect medical inquiry,
sonable since the records
themselves, Pedersen, always available physician had An
disclosed what the not.
inquiry based on those records would have surgery
led as the cause of the
paralysis. This would physician. Re- focused alleged
liance on failure disclose at point have become unreasonable years suit was
earlier than two care provid-
filed. As to the other medical
ers, legally no sufficient cause has been postpone accrual of the statute
shown
beyond notice date court accept Thus if we the court’s
establishes. framework,
analytical Pedersen should
lose.