*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. 672 P.2d 895 damages. punitive Counsel have covered pretrial conference that at the stated "[m]y position cover- [insurance is that there 16. Id. at 899-900. specific damages]. age punitive There’s no punitive damages.” policy in the exclusion Id, J., concurring). (Compton, at overruled, 1979), (Alaska on 12. 594 P.2d Harned, Corp. grounds Dura other 396, (Alaska 1985). 405 n. trial, condition, phase noted that at the purpose second not excluded under Rule “the needed Therefore, the defendant’s the trial court did not err in wealth, including any evidence of insurance failing to exclude evidence of insurance cov- coverage, presented.”18 could be And Jus- erage. tices Burke and Matthews noted then- policy that “[a] dissent defendant’s insurance b. The court did not err in part

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 643 N.W.2d 93 Op. 1. at 1272. 2002). 2. See id. at 1271. 6. Evid. 403. Alaska R. noting Preliminarily, worth

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. 512 P.2d at 579. 47(c)(10)’s here, governing provisions Rule auto- conclusion reaching opposite In disqualification of clients. financial matic opinion posits “[t]he today’s jurors have insured Farm State interest below, proceedings at But best.”27 speculative case in this restricting jury pre- voir order dire court’s opinion’s analysis of closeness establishing very cluded from their relationship policyholders and between relationship triggered that would have Rule 47(c)(10) misdirected, Rule ex- insurers 47(c)’s mandatory right challenge to a already preempts the issue. As pressly True, prevented cause. the order 47(c)(10) mentioned, categorically ex- Rule learning the jury panel name of prospective jurors who are “clients” all cuses precaution hardly Boyles’s insurer. But this attorney.28 policyhold- an Since by allowing potential prejudice: cured insurers, undeniably are clients their ers Boyles to tell the that he insured 47(c) unequivocally financial deems the insurer, unnamed the trial court effective- companies relationship between just ly all those in- left insured —not sufficiently close to policyholders and their speculate Farm —to about sured State any ac- disqualification in require automatic impact what verdict policyholder’s insurer is tion where premi- might have on own insurance their attorney. anor ums. example that Farm was Suppose for Thus, view, my concealing State Farm’s in a lawsuit: actually named a defendant identity acceptable than was no more here policyhold- doubt that its there would no identity shielding Penney’s have J.C. would sufficiently close ers Penney in Malvo v. Co. been J.C. or shield disqualifi- require interest to their automatic *16 identity ing corporation’s the Native would 47(c)(10). Be- Rule as “clients” under cation Alaska, Inc. have been Reich v. Cominco relationship between the financial cause jury’s question its shown As policyholders no differ- Farm verdict, ap ensuing superior court’s it Farm were here than would be State ent spread danger proach simply preju party, policyhold- follows a named it dice; poten protect it failed to from sufficiently relationship itself is er/insurer 47(c). jury required tial bias as under Rule disqualification, provided to warrant close 47 are requirements the other Rule given de- Accordingly, court’s then, question, is whether met. critical allowing counsel to tell the cision defense justi- played State Farm this case the role coverage, I treating party. it fies as a 47(c)(10)required the court hold that prospec- challenges cause as to all grant personal injury case In the run-of-the-mill policyhold- Farm who were State tive course, insur- against party, an an insured ers. might role insufficient to warrant er’s CONCLUSION But treating it as a under Rule 47. policyholder acting through counsel

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.