Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GOVERNMENT EMPLOYEES )
INSURANCE COMPANY and ) Supreme Court Nos. S-15637/15657
MICHAEL J. LINA JR., )
) Superior Court No. 3AN-00-12188 CI
Appellants and )
Cross-Appellees, ) OPINION
)
v. ) No. 7195 – August 25, 2017
)
SANDRA GONZALEZ, )
)
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan, Judge.
Appearances: Rebecca J. Hozubin, Hozubin, Moberly,
Lynch & Associates, Anchorage, for Appellants/Cross-
Appellees. W. Michael Moody and Sarah A. Marsey,
Atkinson, Conway & Gagnon, Anchorage, and Dennis M.
Mestas, Law Offices of Dennis M. Mestas, PC, Anchorage,
for Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
An insured sued her auto insurer and one of its adjusters, alleging that the
insurer breached the insurance contract and committed tortious bad faith by withholding
underinsured motorist benefits and that the adjuster negligently handled her claim for
those benefits. The insurer then paid all available underinsured motorist benefits to the
insured, including interest. The insured continued her tort claims, alleging additional
financial and emotional harm from the delayed benefits payment. The insured proposed
a jury instruction addressing the effect of the insurer’s belated payment, but the superior
court rejected that instruction. After trial the jury determined that (1) the insurer had
acted in bad faith, but its conduct was not a substantial factor in causing the insured’s
asserted harm, and (2) the adjuster had not been negligent. The superior court
subsequently ordered the jury to award the insured nominal damages. The jury then
awarded the insured $2 in nominal damages and later awarded $450,000 in punitive
damages.
The superior court awarded the insured prevailing party costs and attorney’s
fees against the insurer. The court also awarded the adjuster prevailing party attorney’s
fees against the insured. The court rejected the insured’s request that judgment against
the insurer be entered nunc pro tunc to the date of the jury verdict so that post-judgment
interest on the punitive damages award would start earlier.
The insurer appeals the nominal and punitive damages awards and the
prevailing party determination. The insured cross-appeals the adjuster’s attorney’s fees
award, the jury’s failure to award compensatory damages, the court’s rejection of the
insured’s proposed jury instruction, and the court’s refusal to enter judgment effective
from the jury verdict date. We affirm all aspects of the decision except the adjuster’s
attorney’s fees award — we remand for further proceedings on that issue.
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II. FACTS AND PROCEEDINGS
Sandra Gonzalez was injured in a 1996 car accident. Gonzalez’s sister was
driving the car and pulled into the path of an oncoming vehicle; the other vehicle struck
the car’s passenger side where Gonzalez was seated. Gonzalez’s mother, the car’s
owner, had an insurance policy with Government Employees Insurance Company
(GEICO), and GEICO paid Gonzalez $58,593.75 — the bodily injury liability coverage
policy limit with interest — to release all bodily injury claims against her mother and
sister.
In the months following the accident Gonzalez repeatedly requested
payment under the policy’s underinsured motorist (UIM) coverage as well, but GEICO
did not respond to her requests. Gonzalez explicitly stated that by accepting the bodily
injury settlement she was “not waiving any right to an underinsured motorist claim later
on.” Gonzalez requested UIM coverage again in 1998, and GEICO responded only by
questioning her status as an insured. In 2000, after Gonzalez again requested UIM
coverage, GEICO adjuster Michael Lina reviewed Gonzalez’s UIM claim and paid her
$83,487.50, including the UIM coverage policy limits and interest. But by then
Gonzalez already had filed suit against GEICO and Lina.
Gonzalez initially tried to bring two class action claims against GEICO, but
our holding in a previous appeal effectively eliminated one,1 and she later voluntarily
dismissed the other. That left two claims relevant to this appeal: (1) a negligent
adjusting claim against Lina, and (2) a claim that GEICO acted in bad faith by failing to
timely investigate and pay her UIM coverage benefits.
1
See Gov’t Emps. Ins. Co. v. Graham-Gonzalez, 107 P.3d 279, 287 (Alaska
2005) (holding that Alaska law did not require GEICO to list premiums for each level
of optional UIM coverage on insurance application forms).
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GEICO moved for partial summary judgment, asserting that at the time
Gonzalez’s claim arose an insurer could not, as a matter of law, be liable for bad faith
failure to pay both bodily injury and UIM claims (known as “stacking”). GEICO noted
that Progressive Insurance Co. v. Simmons — holding that Alaska law required stacking
— had not yet been decided.2 GEICO relied on an earlier unpublished memorandum
decision in Peter v. Progressive Corp., upholding a decision not to hold an insurer liable
for bad faith failure to stack.3 The superior court determined that our Peter decision had
limited precedential value because it was an unpublished decision4 and because it was
based partly on the insurer’s alternative grounds for denying coverage.5 The court
denied summary judgment because Gonzalez had presented evidence of GEICO’s
potential bad faith, showing that “GEICO offered some insureds, but not others, standstill
agreements pending resolution of Simmons.” Consequently the “insurer could honestly
believe that [Alaska law] required stacking but conceal that information from some
insureds in bad faith.”6
2
See 953 P.2d 510 (Alaska 1998).
3
No. S-11416, 2006 WL 438658, at *6-7 (Alaska Feb. 22, 2006).
4
Id. at *1.
5
Id. at *6 (“Progressive had two reasonable bases for denying the claim.
Under the policy and a literal interpretation of the applicable statute, the vehicles
involved were not ‘underinsured motor vehicle[s].’ Further, whether either driver was
at fault, and if so the extent of her fault, had not been determined.” (alteration in
original)).
6
GEICO appeals the denial of its summary judgment motion. But because
the case proceeded to trial on the merits of the same factual issue on which the denial was
based — whether GEICO’s actions constituted bad faith — we decline to consider
GEICO’s summary judgment claim. See Larson v. Benediktsson, 152 P.3d 1159, 1169
(continued...)
-4- 7195
A jury trial began in August 2012. Gonzalez testified about the accident
and its consequences. Prior to the accident she had worked as a housekeeper and at an
office supply store; she briefly resumed housekeeping after the accident, but the pain and
swelling in her leg and ankle prevented her from working even part time. In addition to
physical challenges, she suffered financial hardship and emotional distress between 1996
and 2000. Because she was unable to work, her family lived on her husband’s $1,200
monthly income. During that time period she financially relied on her mother, who
loaned Gonzalez about $30,000; housed Gonzalez’s family for three months; and helped
pay for a crib, diapers, a baby dresser, and expensive auto repairs. Gonzalez said that
asking her mother for money felt “terrible” and embarrassing.
After the close of evidence the parties submitted final objections to
proposed jury instructions. Gonzalez objected to the court’s rejection of her proposed
Jury Instruction 38; it stated that an insurer’s belated payment of contract benefits does
not relieve the insurer from liability for bad faith. The superior court nonetheless
declined to give the disputed instruction.
The next day the jury issued a special verdict finding that (1) Lina did not
negligently adjust Gonzalez’s claim, and (2) GEICO acted in bad faith, but its conduct
was not “a substantial factor in causing harm to . . . Gonzalez.” The bad faith finding is
at the heart of this dispute.
After the verdict Gonzalez asserted that, given the finding of bad faith, the
jury must award her at least nominal damages. The parties and the court discussed the
6
(...continued)
(Alaska 2007) (holding that when summary judgment “motions are denied on the basis
that there are genuine issues of material fact,” then “the order becomes unreviewable
after a trial on the merits” (quoting Ondrusek v. Murphy, 120 P.3d 1053, 1055 n.2
(Alaska 2005))).
-5- 7195
issue, and the court — to create a full record for appeal — gave the jury a supplemental
instruction on nominal damages. The instruction directed the jury to assume that
GEICO’s bad faith was a substantial factor in causing Gonzalez’s harm and to award
Gonzalez nominal damages, describing those as “a trivial sum of money awarded to a
litigant who has established a cause of action but has not established that she is entitled
to compensatory damages.” The jury asked the court whether $0 could be a trivial sum;
the court responded that the jury must award at least $1. The jury returned a verdict
awarding Gonzalez $1 for “[m]ental suffering, anxiety, humiliation, and emotional
distress” and $1 for financial hardship. The jury then found Gonzalez also was eligible
for punitive damages. After more trial testimony and a supplemental instruction, the jury
awarded Gonzalez $450,000 in punitive damages. The jury then was excused.
The parties later disputed how to treat the jury’s supplemental verdict and
damages awards. In June 2013 the superior court rejected GEICO’s assertion that it was
improper for the jury to award nominal and punitive damages after finding GEICO’s
conduct was not a substantial factor in causing Gonzalez’s harm. The court reasoned the
jury’s finding that GEICO acted in bad faith meant Gonzalez was entitled to nominal
damages under our holding in Ennen v. Integon Indemnity Corp.7 The court interpreted
the jury’s verdict to mean “the jury found that there was harm but that [Gonzalez] had
failed to prove the amount of harm to the requisite degree of certainty,” consistent with
7
268 P.3d 277, 291 (Alaska 2012) (holding on facts in insurance bad faith
action that “[i]nterest alone does not compensate [the insured] for his financial hardship
and related distress, and at a minimum he is entitled to nominal damages” (citing
Anchorage Chrysler Ctr., Inc. v. DaimlerChrysler Motors Corp., 221 P.3d 977, 990
(Alaska 2009))).
-6- 7195
our nominal damages explanation in Anchorage Chrysler Center, Inc. v.
DaimlerChrysler Motors Corp.8
The superior court then assessed the jury’s punitive damages award under
the United State Supreme Court’s due process guideposts outlined in BMW of North
America, Inc. v. Gore.9 The court also assessed whether the jury’s punitive damages
award impermissibly punished GEICO for its conduct toward other insureds, as well as
whether the statute allowing punitive damages was unconstitutional as applied, and
found the punitive damages award constitutional in all respects.
In November 2013 the superior court issued a judgment and an
accompanying order explaining that Gonzalez was entitled to 10.5% pre- and post-
judgment interest, with prejudgment interest accruing from August 15, 1996. The
judgment accordingly awarded Gonzalez prejudgment interest on her nominal damages
and post-judgment interest on her total judgment, including nominal and punitive
damages. Gonzalez then moved for judgment notwithstanding the verdict and a partial
new trial. She asked the court to change the jury’s answer to the question whether
GEICO’s conduct was a substantial factor in causing her harm from “no” to “yes.” She
sought a new trial on “compensatory damages because the jury’s failure to award any
compensatory damages was against the weight of the evidence.” The court denied those
motions in a June 2014 order.
8
221 P.3d at 990 (holding that nominal damages are available “when actual
loss or injury is shown, but plaintiff has failed to prove the extent and amount of
damages” (quoting Zok v. State, 903 P.2d 574, 577-78 (Alaska 1995))).
9
517 U.S. 559, 584-86 (1996) (holding that, although there is no “bright line
marking the limits of a constitutionally acceptable punitive damages award,” jury’s $2
million punitive damages award for BMW’s failure to disclose that some of its cars were
repainted before sale “transcends the constitutional limit”).
-7- 7195
The parties also had sought attorney’s fees, and in the June 2014 order the
court determined that both Gonzalez and Lina were prevailing parties. The court
awarded Gonzalez attorney’s fees and costs against GEICO in the amount of
$164,019.69. A final judgment was issued awarding Gonzalez a total of $614,025.31,
including nominal and punitive damages, attorney’s fees, costs, and prejudgment interest.
In August 2014 Gonzalez moved to amend the judgment nunc pro tunc for
post-judgment interest to accrue as of August 2012, when the jury verdict was issued,
rather than as of the November 2013 judgment date. The court denied that motion.
Finally, the court calculated Lina’s attorney’s fees. Because Lina was represented by
GEICO’s counsel in the proceedings and did not adequately segregate fees he incurred
from fees GEICO incurred, the court chose to “apportion the fees in a reasonable manner
to assign to Lina his share,” awarding him percentages of the requested fees for different
litigation periods.
GEICO appeals the nominal and punitive damages awards, pre- and post-
judgment interest determination, and prevailing party determination. Gonzalez cross-
appeals the denial of her proposed jury instruction, related denials of her post-trial
motions, and Lina’s attorney’s fees award.
III. STANDARD OF REVIEW
“Jury instructions involve questions of law to which we apply our
independent judgment.”10 “[W]e review de novo whether a punitive damages award is
grossly excessive under the due process clause of the Fourteenth Amendment.”11 “The
determination of when prejudgment interest begins to accrue presents a legal question
10
City of Hooper Bay v. Bunyan, 359 P.3d 972, 978 (Alaska 2015) (quoting
Thompson v. Cooper, 290 P.3d 393, 398 (Alaska 2012)).
11
Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1062 (Alaska 2005) (citing
Cent. Bering Sea Fishermen’s Ass’n v. Anderson, 54 P.3d 271, 277 (Alaska 2002)).
-8- 7195
that we review de novo.”12 “When applying the de novo standard of review, we apply
our ‘independent judgment to questions of law, adopting the rule of law most persuasive
in light of precedent, reason, and policy.’ ”13
We review for an abuse of discretion the denial of a motion for a new trial.14
But “[m]otions for judgment notwithstanding the verdict present questions of law that
are reviewed on appeal de novo rather than deferentially.”15 The parties agree that we
should review for abuse of discretion the trial court’s denial of Gonzalez’s motion to
amend the judgment nunc pro tunc.16
“We review for abuse of discretion a trial court’s prevailing party
determination. Prevailing party determinations will be overturned only if they are
manifestly unreasonable.”17 We also review attorney’s fees awards for abuse of
12
Pederson v. Barnes, 139 P.3d 552, 563 (Alaska 2006) (citing Lloyd’s &
Inst. of London Underwriting Cos. v. Fulton, 2 P.3d 1199, 1210 (Alaska 2000)).
13
ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d
114, 122 (Alaska 2014) (quoting Russell ex rel. J.N. v. Virg-In, 258 P.3d 795, 802
(Alaska 2011)).
14
Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015)
(quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002)).
15
Borgen v. A & M Motors, Inc., 273 P.3d 575, 584 (Alaska 2012) (citing
Cameron v. Chang-Craft, 251 P.3d 1008, 1016-18 (Alaska 2011)).
16
See Snook v. Bowers, 12 P.3d 771, 775-76 (Alaska 2000) (citing Johnson
v. Doris, 933 P.2d 1139, 1142 (Alaska 1997)) (applying abuse of discretion standard to
nunc pro tunc motion treated as Alaska Civil Rule 60(b) motion).
17
Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1092 (Alaska
2008) (footnote omitted) (first citing Interior Cabaret, Hotel, Rest. & Retailers Ass’n v.
Fairbanks N. Star Borough, 135 P.3d 1000, 1002 (Alaska 2006); then citing Curran v.
Hastreiter, 579 P.2d 524, 531 (Alaska 1978)).
-9- 7195
discretion and “will not find an abuse of discretion absent a showing that the award was
arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive.”18
IV. DISCUSSION
The parties’ points on appeal fall into four categories: jury instructions,
damages, post-trial motions, and attorney’s fees.
A. Gonzalez’s Proposed Jury Instruction
Gonzalez contends that the superior court erred when it rejected her
proposed Jury Instruction 38 and failed to instruct the jury about “the legal effect of
GEICO’s belated payment.” The proposed instruction, based on our Ennen19 decision,
stated: “The fact that an insurer ultimately pays benefits due under the contract does not
relieve it from liability for negligence or bad faith if, in its handling of the claim, it
unreasonably delayed payment of those benefits or otherwise breached its obligation of
good faith and fair dealing.” Gonzalez argues that the instruction was necessary to
ensure that the jury did not believe the belated UIM benefits payment with interest cured
GEICO’s bad faith. In support she notes GEICO’s closing argument statement that it
“corrected” its error and “fully compensated” Gonzalez.
GEICO responds that Gonzalez mischaracterizes its closing argument and
that no prejudice resulted because Jury Instructions 26 and 30 adequately informed the
jury of the law regarding bad faith damages. Jury Instruction 26 described the bad faith
cause of action, including the requirement that Gonzalez prove “[GEICO]’s bad faith
actions were the legal cause of . . . Gonzalez’s damages, if any.” Jury Instruction 30
18
Alaskasland.com, LLC v. Cross, 357 P.3d 805, 825 (Alaska 2015) (quoting
Bush v. Elkins, 342 P.3d 1245, 1251 (Alaska 2015)) (citing Baker v. Ryan Air, Inc., 345
P.3d 101, 106 (Alaska 2015); M-B Contracting Co. v. Davis, 399 P.2d 433, 437 (Alaska
1965); Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).
19
268 P.3d 277, 291 (Alaska 2012).
-10- 7195
described Gonzalez’s burden to prove damages. It stated that the jury “must decide how
much money, if any, will reasonably compensate . . . Gonzalez for the harm.” And it
stated that “[t]he amount of damages must include an award for all harm that was caused
by [GEICO], even if the particular harm could not have been anticipated.” It placed the
burden on Gonzalez to “prove the amount of her damages, if any, by a preponderance
of the evidence.” Neither instruction mentioned the effect of GEICO’s post-lawsuit
payment of UIM benefits with interest.
We see no reason the superior court should not have issued the proposed
instruction. It was a correct statement of the law and was consistent with Gonzalez’s
theory that GEICO’s delayed payment did not absolve it of bad faith.20 No other jury
instruction expressly addressed the effect of GEICO’s post-lawsuit payment,21 and
GEICO may have caused some confusion by stating at closing that “[Gonzalez] received
all of the coverages in the file. She received every last penny from that policy of
insurance. The $144,000 fully compensated her. . . . GEICO did not act in bad faith.”
But we note that neither party discusses Jury Instruction 27 in this context.
That instruction set out what Gonzales was required to prove for her bad faith delayed
payment claim:
1) . . . Gonzalez suffered a loss covered under an insurance
policy with [GEICO];
2) [GEICO] was notified of the loss;
20
See Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757, 764 (Alaska 2007)
(“We have previously recognized that a plaintiff is generally entitled to a jury instruction
‘consonant with the theory of her case’ if the evidence supports the plaintiff’s theory.”
(quoting Clary Ins. Agency v. Doyle, 620 P.2d 194, 201 (Alaska 1980))).
21
See id. at 765 (noting that “[t]he trial court’s instructions did not otherwise
make this point”); see also Thompson v. Cooper, 290 P.3d 393, 401 (Alaska 2012)
(holding failure to instruct jury on issue central to theory of case was erroneous).
-11- 7195
3) [GEICO] unreasonably, or without proper cause, denied or
delayed payment of policy benefits;
4) . . . Gonzalez was harmed; and
5) [GEICO’s] denial or delay in payment of policy benefits
was a substantial factor in causing . . . Gonzalez’s harm.
By stating that mere delay can lead to bad faith liability, Instruction 27
presumes that late payment of benefits is no defense to a bad faith claim, perhaps filling
much of the gap left by proposed Jury Instruction 38’s absence.
And even assuming the court’s failure to issue the proposed instruction was
error, we cannot say it caused prejudice.22 Notwithstanding the proposed instruction’s
absence, the jury actually found that GEICO acted in bad faith.23 And the jury’s finding
that GEICO’s bad faith was not a substantial factor in causing Gonzalez’s harm does not
necessarily reflect a misunderstanding of the law. The harm alleged at trial — additional
damages resulting from financial and emotional distress — was separate from the direct
financial harm earlier remedied by GEICO’s post-lawsuit contractual payment. In light
of Instruction 27’s language expressing that Gonzalez was entitled to recover for bad
faith if GEICO had unreasonably delayed payment, we believe the jury’s substantial
factor finding reflects only its assessment of these additional damages. And even if the
jury would have answered the substantial factor question differently had it received the
disputed instruction, the superior court subsequently ordered the jury to assume the
22
“When reviewing a trial court’s denial of a proposed instruction, our
inquiry focuses upon whether the instructions given, when read as a whole, adequately
inform the jury of the relevant law.” City of Hooper Bay v. Bunyan, 359 P.3d 972, 978
(Alaska 2015) (quoting Thompson, 290 P.3d at 398). “An error in jury instructions is
grounds for reversal only if it caused prejudice.” Id. (quoting Thompson, 290 P.3d at
398-99).
23
Cf. Parnell, 174 P.3d at 765 (finding prejudice where “the jury may have
returned a different verdict”).
-12- 7195
answer to that question was “yes,” correcting any prejudicial error relating to the
substantial factor question.24
Although the court probably should have issued the proposed instruction,
no prejudice resulted from that decision and reversal of the compensatory damages
award is not warranted.
B. Damages
GEICO disputes the awards of nominal and punitive damages, as well as
the superior court’s determination of the pre- and post-judgment interest rate for those
damages.
1. Gonzalez was entitled to nominal damages.
The jury initially found that GEICO acted in bad faith but that its bad faith
was not a substantial factor in causing Gonzalez the asserted additional harm beyond the
delayed payment. The superior court then instructed the jury “to assume that the answer
to [the substantial factor question] is ‘YES’ ” and then “award a nominal amount of
damages.” GEICO contends that the superior court erred by ordering the jury to award
nominal damages and that doing so relieved Gonzalez of the burden of proving
causation.
In its order addressing GEICO’s arguments the superior court determined
that “[g]iven the jury’s finding that [GEICO] acted in bad faith, under Ennen, Gonzalez
is entitled to an award of nominal damages, regardless of the jury’s finding on causation
and harm.” The court reasoned that “there could be multiple explanations” for the jury’s
finding that GEICO’s bad faith was not a substantial factor in causing Gonzalez’s harm:
24
Cf. Kodiak Island Borough v. Roe, 63 P.3d 1009, 1017 (Alaska 2003)
(holding erroneous instruction was not prejudicial in part because error was not
exploited).
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“For example, it could be that the jury found that there was harm but that plaintiff had
failed to prove the amount of harm to the requisite degree of certainty.”
We agree with the superior court that the jury’s finding of bad faith compels
a nominal damages award on the facts of this delayed-payment case. In Ennen we held
that the insured was entitled to nominal damages when he received the insurance proceeds
he was entitled to, plus interest, but only after years of delay.25 We were concerned that
allowing an insurance company to “arbitrarily deny coverage and delay payment of a
claim with no more penalty than interest on the amount owed” would undermine the
purpose of the bad faith cause of action.26 We concluded that the insured “was deprived
of the UIM benefits to which he was entitled under the policy,” and the insurer’s eventual
payment of those benefits did not cure its initial bad faith.27
As in Ennen, Gonzalez was deprived of the benefits to which she was
entitled, and her harm was not necessarily fully remedied by GEICO’s 2000 post-lawsuit
payment.28 GEICO’s post-lawsuit payment of all the monies due Gonzalez under the
policy resolved Gonzalez’s breach of contract claim. But the undisputed delay in
payment and the jury’s related bad faith finding demonstrate that GEICO’s delay in
paying the policy benefits caused a harm that, for bad faith tort claim purposes, cannot be
vitiated. As we similarly discuss below in connection with the punitive damages award,
an insurance company should not be allowed to buy immunity from a bad faith tort claim
25
Ennen v. Integon Indem. Corp., 268 P.3d 277, 291 (Alaska 2012).
26
Id. (quoting State Farm Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1156
(Alaska 1989)).
27
Id.
28
See id.
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merely by belatedly paying all sums due under the contract.29 Therefore the superior
court correctly mandated that the jury award Gonzalez at least nominal damages for
GEICO’s bad faith, post-lawsuit UIM benefits payment.
We further note that the jury instructions and the jury’s verdict reflect that
the jury found the original payment delay harmed Gonzalez. Again we look to Jury
Instruction 27, which set out what Gonzalez had to prove for her bad faith claims:
Gonzalez must prove that it is more likely true than not true
that:
1) . . . Gonzalez suffered a loss covered under an insurance
policy with [GEICO];
2) [GEICO] was notified of the loss;
3) [GEICO] unreasonably, or without proper cause, denied or
delayed payment of policy benefits;
4) . . . Gonzalez was harmed; and
5) [GEICO]’s denial or delay in payment of policy benefits
was a substantial factor in causing . . . Gonzalez’s harm.
By answering “yes” to the question “Did [GEICO] act in bad faith?” the jury by
implication seems to have found that each of the first four elements was satisfied with
respect to the undisputed original delay in payment, including that “Gonzalez was
harmed.” As we noted earlier, this jury instruction and the related jury verdict are
precisely the reason there was no prejudice when Gonzalez’s proposed Instruction 38 was
not given.
29
See In re Exxon Valdez, 490 F.3d 1066, 1091 (9th Cir. 2007), vacated,
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (“A defendant cannot buy full
immunity from punitive damages by paying the likely amount of compensatory damages
before judgment.”); Ennen, 268 P.3d at 291 (without bad faith liability “insurers can
arbitrarily deny coverage and delay payment of a claim with no more penalty than
interest on the amount owed” (quoting Nicholson, 777 P.2d at 1156)).
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The special verdict form contains other questions that appear to be drawn
from the elements listed in Instruction 27, such as “Was [GEICO]’s denial and/or delay
in payment of policy benefits unreasonable or without proper cause?” and “Was
[GEICO]’s bad faith a substantial factor in causing harm to . . . Gonzalez?” The jury in
its verdict found both unreasonable payment delay and bad faith. Given Gonzalez’s
request only for damages over and above the post-lawsuit payment, the jury’s answer of
“no” to the causation question cannot be interpreted to mean that GEICO did not actually
harm Gonzalez.30 It is clear from the facts and the verdict that GEICO caused direct
pecuniary harm by its bad faith delay in paying policy benefits. But the real question,
again, is whether the post-lawsuit payment of the policy benefits can foreclose an award
of at least nominal damages based on the tortious conduct.
The superior court suggested that the jury’s disputed substantial factor
finding might mean that Gonzalez “failed to prove the amount of harm to the requisite
degree of certainty.” We interpret the superior court’s statement to mean that Gonzalez
failed to prove additional damages, such as those resulting from financial and emotional
distress, with sufficient certainty;31 under that interpretation nominal damages would still
30
Cf. Alaska Interstate Constr., LLC v. Pac. Diversified Invs., Inc., 279 P.3d
1156, 1174 (Alaska 2012) (holding superior court erred by not granting judgment
notwithstanding the verdict when jury determined one party committed fraud, compelling
conclusion that agreement was breached “as a matter of law”); ASRC Energy Servs.
Power &Commc’ns, LLC v. Golden Valley Elec. Ass’n, 267 P.3d 1151, 1166-67 (Alaska
2011) (ordering new trial where jury found breach of contract and although “the jury
could reasonably have disputed the amount of damage caused by the breaches, there can
be no dispute that the breaches caused . . . some damage”); Grant v. Stoyer, 10 P.3d 594,
596-97, 600 (Alaska 2000) (ordering new trial after jury found no compensable personal
injury because “there was no genuine dispute that the collision had caused [plaintiff] to
suffer some pain”).
31
We recently noted the distinction between a finding of harm and a finding
(continued...)
-16- 7195
be available to Gonzalez. In Anchorage Chrysler we held “that nominal damages are
typically awarded in two situations”; first as a result of “a technical invasion of a
plaintiff’s rights” such as a false arrest, or second “when actual loss or injury is shown,
but plaintiff has failed to prove the extent and amount of damages.”32 We stated that “an
award of nominal damages is appropriate where a party incurs a pecuniary loss of
undetermined amount.”33 Therefore, even if Gonzalez failed to adequately prove
additional damages beyond the post-lawsuit payment, she still was entitled to nominal
damages for the harm caused by GEICO’s bad faith payment delay.
In sum, the jury found that GEICO acted unreasonably and in bad faith by
delaying payment of Gonzalez’s UIM benefits. That bad faith payment delay caused
Gonzalez pecuniary harm. We bear in mind: (1) our Ennen holding that eventual
payment cannot cure prior bad faith; (2) our previous distinction between “harm” and
“damages”;34 and (3) the actual jury instructions and special verdict in this case. Given
these three considerations, Gonzalez was entitled to nominal damages despite not proving,
31
(...continued)
of damages resulting from that harm. See Recreational Data Servs., Inc. v. Trimble
Navigation Ltd., __ P.3d __, Op. No. 7162, 2017 WL 2951450, at *3, *14-15, *17
(Alaska Mar. 24, 2017, as amended Aug. 3, 2017) (observing that “fact of harm” and
“amount of damages” were separate issues and ordering award of nominal damages after
plaintiff sufficiently proved harm but not damages amount).
32
221 P.3d 977, 990 (Alaska 2009) (quoting Zok v. State, 903 P.2d 574, 577
78 (Alaska 1995)).
33
Id. at 991.
34
See Recreational Data Servs., 2017 WL 2951450, at *14 (distinguishing
“the fact of damages (i.e., the fact that the plaintiff suffered harm)” from “the amount of
damages” (emphases in original)).
-17- 7195
to the requisite degree of certainty, additional damages for pre-payment emotional and
financial distress.35 We therefore affirm the superior court’s rulings on this issue.
2. The punitive damages award did not violate due process.
GEICO argues that the $450,000 punitive damages award was “grossly
excessive” in violation of its constitutional due process rights. GEICO also claims that
the award unconstitutionally “punishes hypothetical injuries inflicted on non-parties.”
GEICO’s first argument is based on the United States Supreme Court’s
interpretation of Fourteenth Amendment due process. The Court held in State Farm
Mutual Automobile Insurance Co. v. Campbell that “[t]he Due Process Clause of the
Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary
punishments on a tortfeasor.”36 The Court reiterated three guideposts for measuring
punitive damages: “(1) the degree of reprehensibility of the defendant’s misconduct;
(2) the disparity between the actual or potential harm suffered by the plaintiff and the
punitive damages award; and (3) the difference between the punitive damages awarded
by the jury and the civil penalties authorized or imposed in comparable cases.”37
35
The jury’s second special verdict form awarded Gonzalez $1 for emotional
distress and $1 for financial hardship. But in light of our conclusion that Gonzalez was
entitled to nominal damages as a result of GEICO’s bad faith, post-lawsuit payment, we
do not need to parse whether Gonzalez was entitled to nominal damages for her alleged
additional financial and emotional harm or instead for the harm resulting directly from
the delayed payment of policy benefits. Cf. Ennen v. Integon Indem. Corp., 268 P.3d
277, 291 (Alaska 2012) (discussing additional financial and emotional distress, but
noting Ennen was entitled to at least nominal damages because “[i]nterest alone” did not
cure prior bad faith).
36
538 U.S. 408, 416 (2003) (citing Cooper Indus., Inc. v. Leatherman Tool
Grp., Inc., 532 U.S. 424, 433 (2001)).
37
Id. at 418 (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)).
-18- 7195
The first and most important guidepost, reprehensibility, consists of multiple
subfactors, including:
whether[] the harm caused was physical as opposed to
economic; the tortious conduct evinced an indifference to or
a reckless disregard of the health or safety of others; the target
of the conduct had financial vulnerability; the conduct
involved repeated actions or was an isolated incident; and the
harm was the result of intentional malice, trickery, or deceit,
or mere accident.[38]
Although Gonzalez was financially vulnerable, the harm was not physical
and did not implicate health or safety. There was no evidence of malice, although GEICO
repeatedly failed to investigate her UIM claim. Perhaps most favorable to Gonzalez was
the evidence that GEICO failed to disclose potentially available UIM coverage to at least
15 other insureds around the time that Gonzalez’s claim was pending. Based on that
evidence GEICO’s conduct was repeated, rather than isolated, indicating some
reprehensibility.
Under the second guidepost — the disparity between actual and punitive
damages — we have “not prescribe[d] a fixed ratio, or range of ratios, between punitive
and compensatory damages,”39 although we have recognized the Supreme Court’s
preference for single-digit ratios.40 GEICO urges us to consider this a 225,000:1 ratio,
based on the $2 compensatory damages award and the $450,000 punitive damages award.
But the actual harm Gonzalez suffered was greater than $2. We are
persuaded by the Ninth Circuit Court of Appeals’ reasoning in In re Exxon Valdez that
38
Id. at 419 (citing Gore, 517 U.S. at 576-77).
39
Casciola v. F.S. Air Serv., Inc., 120 P.3d 1059, 1064 (Alaska 2005) (citing
Fyffe v. Wright, 93 P.3d 444, 457 (Alaska 2004)).
40
See id. at 1064, 1067 (citing Campbell, 538 U.S. at 408, 424-25).
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Gonzalez’s earlier post-lawsuit recovery of $83,487.50 in UIM benefits and interest
should be included in calculating the ratio of actual to punitive damages.41 In that case
the court held that although an “amount that a defendant voluntarily pays before judgment
should generally not be used as part of the numerator, because that would deter
settlements prior to judgment,” in some cases voluntary payments are properly considered
if removing them would result in meager punitive damages.42 As the court aptly noted,
“[a] defendant cannot buy full immunity from punitive damages by paying the likely
amount of compensatory damages before judgment.”43 Although we do not wish to deter
settlements, $2 in actual harm would permit only the most meager punitive damages
under GEICO’s proposed rule. And more importantly GEICO’s post-lawsuit voluntary
payment did not cure its original tortious wrongdoing or immunize its conduct44 and
should not rule out the possibility of punitive damages. GEICO’s calculation of the ratio
is therefore flawed. When the full UIM coverage payment GEICO made after the lawsuit
was filed is included in the calculation, the comparison of actual harm to punitive
damages is reduced to a reasonable single-digit ratio.
Under the third guidepost — the difference between the penalty imposed and
comparable civil penalties — AS 21.36.910 put GEICO on notice of the possibility of
$250,000 in penalties for violating Alaska’s insurance trade practices, and
AS 09.17.020(f) expressly permits punitive damages of up to $500,000. The $450,000
41
See 490 F.3d 1066 (9th Cir. 2007), vacated, Exxon Shipping Co. v. Baker,
554 U.S. 471 (2008).
42
Id. at 1079 (quoting In re Exxon Valdez, 270 F.3d 1215, 1244 (9th Cir.
2001)).
43
Id. at 1091.
44
See Ennen v. Integon Indem. Corp., 268 P.3d 277, 291 (Alaska 2012)
(holding that “[i]nterest alone does not compensate” insured for insurer’s bad faith).
-20- 7195
punitive damages award in this case is not significantly greater than a comparable civil
penalty and is less than the maximum punitive damages allowed by statute.45
GEICO repeatedly failed to investigate Gonzalez’s and at least 15 other
insureds’ UIM benefits claims; this suggests reprehensible conduct. The ratio of the harm
suffered by Gonzalez to the punitive damages award was within a reasonable range. And
GEICO was on notice of a possible punitive damages award of up to $500,000.
Therefore, none of the three guideposts suggests that the jury’s punitive damages award
violated GEICO’s due process rights.
GEICO further argues that “[t]he record leaves little if any reasonable doubt
that the jury impermissibly relied on GEICO’s actions in other cases in determining the
amount of its punitive damages award.” GEICO cites the United States Supreme Court’s
Philip Morris USA v. Williams decision, holding that “us[ing] a punitive damages award
to punish a defendant for injury that it inflicts upon nonparties . . . , i.e., injury that it
inflicts upon those who are, essentially, strangers to the litigation,” would violate the
defendant’s due process rights.46 But the Supreme Court noted that “[e]vidence of actual
harm to nonparties can help show that the conduct that harmed the plaintiff also posed a
substantial risk of harm to the general public, and so was particularly reprehensible.”47
In that case the plaintiff’s counsel expressly — and improperly — asked the jury to
consider Philip Morris’s responsibility for harm to its “market share” of smokers.48 The
trial court then denied Philip Morris’s request for an instruction that the jury could not
45
See Casciola, 120 P.3d at 1066 n.22, 1069 (upholding $300,000 punitive
damages award with comparable $100,000 criminal fine).
46
549 U.S. 346, 353 (2007).
47
Id. at 355.
48
Id. at 350.
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“punish the defendant for the impact of its alleged misconduct on other persons.”49 The
Supreme Court reversed, holding that courts must protect against the risk of the jury
attempting to punish the defendant for harm to nonparties.50
GEICO argues that the jury’s punitive damages award can be attributed only
to an attempt to punish the defendant for harm to other insureds, stating that “[w]ith the
finding of no harm, and the desire to award plaintiff zero damages, there can be no other
explanation other than the fact that the jury relied on the other cases as presented and
argued by plaintiff.” At the close of the punitive damages portion of the trial Gonzalez’s
attorney estimated that GEICO’s nondisclosure of UIM coverage benefits led to about
$450,000 of financial gain. The superior court later observed “that the jury’s punitive
damages award of $450,000 is suspiciously close to the figure suggested by Gonzalez’s
counsel for harm incurred by other, nonparty insureds.” But the court correctly noted that
the resemblance between the figures is not enough to overturn the punitive damages
award. Alaska Statute 09.17.020 permits the fact finder to consider “the amount of
financial gain” when making a punitive damages award, and that appears to have been the
context of Gonzalez’s attorney’s statement.51 The discussion of harm to others also was
used as evidence of GEICO’s “particularly bad conduct,” a permissible reference to
reprehensibility.52 In context Gonzalez’s attorney’s statement was much less potentially
49
Id. at 351.
50
Id. at 357-58.
51
AS 09.17.020(c) (“[T]o determine the amount of punitive damages to be
awarded, the fact finder may consider . . . the amount of financial gain the defendant
gained or expected to gain as a result of the defendant’s conduct.”).
52
See Philip Morris, 549 U.S. at 355.
-22- 7195
misleading than the express request to consider “market share” of harm in Philip Morris.53
We are not persuaded that the jury in this case used punitive damages to punish GEICO
for harm to others.
GEICO lastly argues that “AS 09.17.020(f)(2) and (g)(3) are
unconstitutional because these subsections permit recovery of up to $500,000.00 and
$7,000,000.00, respectively.” But those figures represent the upper limits of punitive
damages in Alaska, and that statute does not demand such awards when they would
violate the United States Supreme Court’s due process decisions. GEICO’s final
argument is unpersuasive, and we affirm the jury’s punitive damages award.
3. The superior court correctly identified the claim accrual date
and pre- and post-judgment interest rate.
The superior court determined that Gonzalez’s bad faith claim arose in 1996,
requiring GEICO to pay 10.5% pre- and post-judgment interest.54 GEICO argues that
Gonzalez’s claim did not arise until 1998, resulting in a much lower rate of pre- and post-
judgment interest.55 GEICO’s argument rests on AS 09.30.070(b), which Gonzalez
argues does not apply to this case.
Alaska Statute 09.30.070(b) states in pertinent part that “prejudgment
interest accrues from . . . the day the defendant received written notification that an injury
has occurred and that a claim may be brought against the defendant for that injury.” But
53
Id. at 350.
54
Compare former AS 09.30.070(a) (1996), with AS 09.30.070(a); see
Marine Sol. Servs., Inc. v. Horton, 70 P.3d 393, 415 (Alaska 2003) (holding that former
version of AS 09.30.070(a), providing for 10.5% interest, applied to causes of action
accruing before August 7, 1997).
55
See Marine Sol. Servs., 70 P.3d at 415 (noting that for causes of action
accruing after August 7, 1997, interest rate is “three percentage points above the 12th
Federal Reserve District discount rate” (citing AS 09.30.070(a))).
-23- 7195
we have held that AS 09.30.070(b) applies “only to actions for personal injury, death, or
damage to property, and does not apply to claims for purely economic loss.”56 In all other
cases interest begins to accrue when the claim arises, rather than when notice is
received.57 The superior court’s decision appears to have been based both on
AS 09.30.070(b) and our decision in Alderman v. Iditarod Properties, Inc., a breach of
contract case to which that provision did not apply.58 But regardless whether
AS 09.30.070(b) applies here, the superior court did not err in its determination of the
prejudgment interest accrual date. Gonzalez’s claim arose, and GEICO received notice
that Gonzalez might bring a claim, at least by August 1996. On August 7 Gonzalez’s
attorney demanded UIM benefits and expressly stated that “[i]f you fail to respond to this
demand within [15 days] you will, undoubtedly, be placing your insured in an excess
position and subjecting [GEICO] to a bad faith suit.”59 GEICO failed to respond to
Gonzalez’s UIM claim, leading her attorney to reiterate in an August 15 letter that
Gonzalez “will not waive her right to pursue the UIM further.”60 Gonzalez’s claim
56
K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 (Alaska 2003)
(quoting Beaux v. Jacob, 30 P.3d 90, 100 (Alaska 2001)).
57
See Rice v. Denley, 944 P.2d 497, 501 (Alaska 1997).
58
104 P.3d 136, 145 (Alaska 2004).
59
See Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 645 (Alaska 2007)
(holding, under AS 09.30.070(b), that a defendant “does not need to receive notice of an
actual claim, but rather only needs to receive notice that a claim may be brought”
(emphasis in original)).
60
Although we prescribe slightly different tests for when contract claims and
tort claims arise, here the “date of injury” and the “date of breach” are both August 15,
when GEICO first failed to respond to Gonzalez’s demand for UIM coverage. Morris
v. Morris, 724 P.2d 527, 529 (Alaska 1986) (“In contract actions, rights to prejudgment
(continued...)
-24- 7195
accrued at least as of that letter, when it became apparent that GEICO was unwilling to
investigate or pay her claim. And Gonzalez expressly put GEICO on notice of a potential
lawsuit by threatening a bad faith claim and preserving her right to continue seeking UIM
benefits. Under any theory Gonzalez was entitled to prejudgment interest as of August
1996.
C. Post-Trial Motions
Gonzalez filed a number of post-trial motions related to the verdict and
judgment, seeking judgment notwithstanding the verdict (JNOV), a new trial, and
amendment of the judgment nunc pro tunc. Her motions for JNOV and a new trial both
arose from the jury’s verdict awarding nominal damages but not compensatory damages,
an award she claims was insufficient to remedy her harm.
1. The court did not err by denying Gonzalez’s JNOV motion.
Gonzalez argues that the superior court erred by denying her motion for
JNOV. Gonzalez requested that the superior court change the jury’s answer to the
question whether GEICO’s bad faith was a substantial factor in causing her harm from
“no” to “yes.” The superior court denied the motion, stating that “[t]he evidence at trial
could lead a reasonable jury to conclude that Gonzalez did not suffer financial hardship
from the delayed payment.” The court noted that Gonzalez ultimately did receive the
UIM benefits and that in the meantime she had received a bodily injury settlement. On
appeal Gonzalez argues that the superior court’s reliance on those facts to support its
decision was flawed and that the decision was contrary to our holding in Ennen.61
60
(...continued)
interest generally arise on the date of breach. In tort actions, they arise on the date of
injury.”).
61
268 P.3d 277, 291 (Alaska 2012).
-25- 7195
“In reviewing the denial of motions for a directed verdict or JNOV, we do
not weigh conflicting evidence or judge the credibility of witnesses.”62 “[W]e determine
whether the evidence, when viewed in the light most favorable to the non-moving party,
is such that reasonable persons could not differ in their judgment as to the facts.”63
As we interpret the verdict, the jury found that although GEICO acted in bad
faith by delaying payment and therefore caused Gonzalez some harm, Gonzalez failed to
prove that GEICO’s bad faith was a substantial factor in causing additional compensatory
damages beyond GEICO’s post-lawsuit payment of the policy benefits plus interest.
Viewing the evidence in the light most favorable to GEICO, reasonable minds could
differ whether additional harm resulted from GEICO’s bad faith, making JNOV
inappropriate. Although Gonzalez testified about her financial distress the jury could
have attributed her difficulties to ordinary life events, such as having a child and car
trouble, rather than to GEICO’s bad faith. The superior court did not err in relying on the
facts of Gonzalez’s financial circumstances, such as her receipt of the bodily injury policy
limits, as those were relevant considerations for whether Gonzalez sufficiently proved
financial and emotional damages. Nor was the court’s decision contrary to Ennen,
because the issue was not whether Gonzalez was harmed by GEICO’s bad faith delay of
payment — she was — but rather whether she adequately proved additional financial and
emotional harm.64 We therefore affirm the superior court’s decision denying Gonzalez’s
JNOV motion.
62
Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 635 (Alaska 1996) (citing
Mullen v. Christiansen, 642 P.2d 1345, 1348 (Alaska 1982); Richey v. Oen, 824 P.2d
1371, 1374 (Alaska 1992)).
63
Id. (citing Mullen, 642 P.2d at 1348).
64
See 268 P.3d at 291.
-26- 7195
2. The court did not abuse its discretion by denying Gonzalez’s new
trial motion.
Gonzalez asserts that the superior court abused its discretion by denying her
motion for a new trial on compensatory damages. She argued to the superior court that
her $2 recovery was “contrary to the weight of the evidence.” The court denied her
motion, stating that because Gonzalez ultimately received her UIM benefits and it was
“very difficult to prove” whether the delay caused damages, a new trial on the
compensatory damages issue was not appropriate.
The superior court “must use its discretion and independently weigh the
evidence”65 when deciding whether the jury’s verdict goes against the weight of the
evidence, and “we have expressed great reluctance to interfere with a superior court’s
decision to deny a new trial, absent exceptional circumstances.”66 We therefore will not
overturn a superior court’s denial of a new trial unless “the evidence supporting the
verdict was so completely lacking or slight and unconvincing as to make the verdict
plainly unreasonable and unjust.”67
Gonzalez first asserts that the superior court misapplied Ennen when it stated
that “[t]he bad faith of other employees of GEICO was rectified by Lina, and Gonzalez
was paid.” But we do not interpret that statement to mean that the UIM benefits payment
cured GEICO’s bad faith. Rather, the court agreed with the jury’s finding that GEICO’s
65
Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015)
(quoting Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1176 (Alaska 2002)).
66
Marron v. Stromstad, 123 P.3d 992, 1011 (Alaska 2005) (footnote omitted)
(first citing Alaska Children’s Servs., Inc. v. Smart, 677 P.2d 899, 901 (Alaska 1984);
then citing Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003)).
67
Hunter, 364 P.3d at 447 (quoting Hogg v. Raven Contractors, Inc., 134
P.3d 349, 352 (Alaska 2006)).
-27- 7195
bad faith caused Gonzalez no additional harm beyond its belated post-lawsuit payment
of the policy limits and interest; or, as GEICO states, the “court was acknowledging that
the case is about a delayed payment, not a ‘denied’ payment.” The superior court did not
misapply Ennen when it denied the motion for a new trial.
Gonzalez also argues that the evidence supporting the jury’s decision to
award only $2 was so lacking that the verdict was unreasonable and unjust. But the trial
evidence supported the jury’s conclusion regarding the amount of nominal damages, and
we see no reason to overturn the superior court’s denial of a new trial. The jury could
have found that Gonzalez’s asserted financial and emotional difficulties were not the
result of GEICO’s bad faith or that Gonzalez did not sufficiently prove the amount of
harm she suffered.68 The superior court’s denial of a new compensatory damages trial
was not an abuse of discretion.
3. The court did not abuse its discretion by denying Gonzalez’s
motion to amend the judgment nunc pro tunc.
Gonzalez claims that the superior court erred by denying her motion to
amend the judgment nunc pro tunc. Gonzalez’s argument stems from the delay between
the August 2012 jury verdict and the court’s November 2013 entry of judgment. Because
prejudgment interest is not available on punitive damages,69 amending the date of
judgment would have allowed Gonzalez to recover post-judgment interest on her punitive
damages award from the earlier date. The superior court denied Gonzalez’s motion,
68
See Ennen, 268 P.3d at 291 n.85 (discussing availability of nominal
damages when additional damages not sufficiently proven (citing Anchorage Chrysler
Ctr., Inc. v. DaimlerChrysler Motors Corp., 221 P.3d 977, 990 (Alaska 2009)).
69
AS 09.30.070(c) (“Prejudgment interest may not be awarded for future
economic damages, future noneconomic damages, or punitive damages.”).
-28- 7195
stating only that it found “the opposition well taken.” We conclude that the superior
court’s denial of Gonzalez’s motion was not an abuse of discretion.
GEICO correctly notes that amendment of the judgment nunc pro tunc was
not the correct procedural device for attempting to alter the interest accrual date. We have
held that “the nunc pro tunc device was an inappropriate means of causing postjudgment
interest to accrue from the date of entry of the original, erroneous judgment rather than
from the date of judgment on remand.”70 It follows that amendment nunc pro tunc is not
the appropriate device to cause post-judgment interest to accrue from the original verdict
date. And the delay between issuance of the verdict and entry of judgment here does not
require amending the judgment’s effective date.
Because “we view interest on damage awards to be a form of compensation
for the period that the plaintiff remains ‘less than whole,’ ” we have held that a successful
litigant is entitled to post-judgment interest even if that litigant chooses to pursue an
appeal.71 But that rationale does not apply to a delay between a jury verdict and entry of
judgment. The period between the verdict and the judgment in this case was not a time
in which GEICO impermissibly had use of Gonzalez’s money, but rather was a time when
the court was deciding critical post-verdict issues — the subjects of this appeal — and
Gonzalez’s recovery still was in dispute.72 Only after the court entered judgment was
70
Isaacson Structural Steel Co., Div. of Isaacson Corp. v. Armco Steel Corp.,
640 P.2d 812, 817 n.11 (Alaska 1982).
71
Farnsworth v. Steiner, 638 P.2d 181, 185 (Alaska 1981) (holding that
appealing judgment should not deprive party of right to post-judgment interest accrued
during that time); see also Isaacson, 640 P.2d at 818 (holding that post-judgment interest
accrued as of original judgment date rather than judgment on remand).
72
Cf. Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 826 (Alaska
2005) (holding “superior court was . . . justified in delaying entry of judgment” for over
(continued...)
-29- 7195
Gonzalez entitled to the use of her punitive damages award and, accordingly, post-
judgment interest on that award.
D. Attorney’s Fees
1. The superior court did not abuse its discretion by determining
that Gonzalez was a prevailing party and awarding her
attorney’s fees and costs.
GEICO contends Gonzalez was not the prevailing party and should not have
been awarded attorney’s fees and costs. GEICO argues that “Gonzalez undoubtedly
viewed her most valuable claim as her class action” and that the failure of the class action
claims demonstrates she was not a prevailing party. Because “we have explained a party
may prevail even if it wins only one of many claims[,] and . . . we have cautioned courts
not to merely count claims to determine prevailing party status,” GEICO’s argument
fails.73
In Progressive Corp. v. Peter ex rel. Peter we held that “[p]arties who do
not recover on every issue can still be regarded as prevailing if they nonetheless recover
a significant damage award on the main issue. Even if a party prevails on only one of the
main issues, it is not necessarily ineligible for being considered the prevailing party.”74
72
(...continued)
a year after jury returned its supplemental verdict because “disputed post-verdict motions
were pending”).
73
Schultz v. Wells Fargo Bank, N.A., 301 P.3d 1237, 1241-42 (Alaska 2013)
(footnote omitted) (first citing Progressive Corp. v. Peter ex rel. Peter 195 P.3d 1083,
1093 (Alaska 2008); then citing State, Dep’t of Corr. v. Anthoney, 229 P.3d 164, 168
(Alaska 2010)).
74
195 P.3d at 1093 (footnote omitted) (first citing Blumenshine v. Baptiste,
869 P.2d 470, 474 (Alaska 1994); then citing Day v. Moore, 771 P.2d 436, 437 (Alaska
1989); and then citing W. Airlines, Inc. v. Lathrop Co., 535 P.2d 1209, 1217 (Alaska
(continued...)
-30- 7195
In that case plaintiffs brought 16 causes of action against their insurer.75 Only one claim
resulted in recovery, a $75,681.27 UIM coverage payment plus interest, which
Progressive paid voluntarily during the course of litigation but which was “a product of
the litigation.”76 We held that although plaintiff sought a much larger recovery, the
payment received was not de minimis and the superior court did not abuse its discretion
by considering the plaintiffs the prevailing parties.77 Under Peter GEICO’s claim that
Gonzalez’s recovery was “nominal . . . at best” because she “lost on all but one claim
decided at trial” is unpersuasive. Gonzalez prevailed on “one of the main issues,” bad
faith, and — in addition to obtaining post-lawsuit payment of the UIM policy limits and
interest — recovered much more than de minimis punitive damages.78
GEICO also points to our Hutchins v. Schwartz statement that “[a] party who
successfully defeats a claim of great potential liability may be the prevailing party even
if the other side is successful in receiving an affirmative recovery.”79 But the plaintiff’s
de minimis recovery of just over $1,000 in Hutchins was a small fraction of what the
plaintiffs recovered in Peter and here.80 And in Hutchins we held only that naming the
74
(...continued)
1975)).
75
Id. at 1092.
76
Id. at 1093-94.
77
Id.
78
See id. at 1093.
79
724 P.2d 1194, 1204 (Alaska 1986).
80
Id.; see Hillman v. Nationwide Mut. Fire Ins. Co., 855 P.2d 1321, 1327
(Alaska 1993) (describing Hutchins recovery as “so small in comparison with what was
(continued...)
-31- 7195
defendant the prevailing party was within the trial court’s “wide discretion”; we did not
hold that every defendant who avoids a great liability is necessarily a prevailing party.81
We therefore affirm the superior court’s discretionary determination that
Gonzalez was a prevailing party; the superior court did not err by awarding her attorney’s
fees.
2. Lina was entitled to attorney’s fees, but the calculation of those
fees was an abuse of discretion.
Gonzalez contends first that Lina waived his right to seek attorney’s fees and
second that the superior court’s fees calculation was erroneous. The court entered final
judgment on November 12, 2013. Lina submitted his motion for attorney’s fees on
November 18, 2013. The court determined in a June 2014 decision that Lina was a
prevailing party entitled to attorney’s fees and ordered that “Lina shall submit an invoice
of all the time that was spent on his case only.” Lina submitted his renewed motion for
attorney’s fees and a $42,691.32 invoice in September 2014. Despite Gonzalez’s
objection the court ruled that Lina’s three-month delay in submitting his invoice did not
constitute waiver because the court’s failure to set a submission deadline “was an
oversight on the court’s part.” The court further determined that the delay was reasonable
and did not prejudice Gonzalez.
We agree with the superior court’s determination that Lina did not waive his
right to seek attorney’s fees. Alaska Civil Rule 82(c) states that a motion for an award
of attorney’s fees “must be filed within 10 days after the date shown in the clerk’s
certificate of distribution on the judgment as defined by [Alaska] Civil Rule 58.1.” The
80
(...continued)
sought that it may properly be considered de minimis”).
81
Hutchins, 724 P.2d at 1204 (“Schwartz faced a potential liability of
$275,000 but must pay only $1,937.09 less 40%.”).
-32- 7195
parties agree that Lina met that deadline. Gonzalez argues that Lina violated the rule by
taking three months to submit his fee invoices after the superior court determined he was
a prevailing party. But Lina correctly notes that Rule 82 does not establish a deadline for
such submissions. And to the extent that Lina’s supplemental filings are governed by
Rule 82, we held in Cizek v. Concerned Citizens of Eagle River Valley, Inc. that the
superior court has discretion to allow additional time unless it is “unreasonable or result[s]
in prejudice to the opposing party.”82 Gonzalez has pointed to no unreasonableness or
prejudice in the time it took Lina to submit his fee invoices. We therefore uphold the
superior court’s determination that Lina did not waive his right to attorney’s fees.
The superior court then sought to determine Lina’s actual reasonable fees.
Because Lina and GEICO were represented by the same counsel, but only Lina was
entitled to attorney’s fees, it was a challenging task. Three different firms represented
Lina and GEICO during over a decade of litigation. According to the superior court the
bills Lina provided were “not detailed enough to accurately identify only those tasks
performed for Lina’s benefit and not for GEICO’s benefit.” And Lina himself had
multiple roles in the litigation, not only as an individual defendant but also “as a
representative of GEICO in fielding discovery responses and reviewing the work of the
attorneys.” He also helped GEICO fight class certification, a role that did not entitle him
to fees.83
82
71 P.3d 845, 849 (Alaska 2003) (citing Alderman v. Iditarod Props., Inc.,
32 P.3d 373, 397 (Alaska 2001)).
83
The parties agree that Lina is not entitled to fees related to defending
against the class action claims. Gonzalez disputes whether the fees awarded to Lina
included his work related to the class action, but that issue should be addressed by the
parties and the superior court on remand. Lina does not dispute the superior court’s
determination that he was not entitled to fees associated with appellate matters, and on
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The court determined that because “a line by line and item by item review
will not provide a satisfactory answer, a different approach must be taken, to apportion
the fees in a reasonable manner to assign to Lina his share of the attorney’s fees.” The
court divided the litigation into three time periods: (1) November 2000 to October 2011;
(2) October 2011 to May 2012; and (3) May 2012 to the end of litigation. During the first
period litigation was focused principally on the class claims. Because of the three roles
Lina played in the litigation during that time, the court concluded “33% of the work Lina
performed during this time was for his individual case” and allocated him 33% of the
attorney’s fees incurred. For the middle period the court determined that “[a]lthough most
of the bill was for work performed on Lina’s behalf, some of the work also benefitted
GEICO,” and allocated Lina 80% of those fees. For the final period the court found that
“an equal allocation [was] reasonable as between [Lina and GEICO].” The court
accordingly calculated that Lina’s total fees were $72,005.35. Under Rule 82(b)(2) the
court reduced the award to 30% and awarded Lina $21,601.61.
The attorney’s fees award to Lina was an abuse of discretion. In Offshore
Systems–Kenai v. State, Department of Transportation & Public Facilities we found an
abuse of discretion when the superior court awarded attorney’s fees despite being “unable
to determine which of the [prevailing party’s] fees related to its limited issue and which
related to other issues.”84 We held that because “[t]he superior court’s order implicitly
83
(...continued)
remand the court should ensure that those fees are not included in any award.
84
282 P.3d 348, 359 (Alaska 2012); see Lyman v. State, 824 P.2d 703, 707
(Alaska 1992) (remanding for more detailed itemization of attorney’s fees because “[t]he
record at present does not include enough information to determine which costs and
attorney’s fees derive from defending the state law claim as distinguished from the
federal law claims,” and attorney’s fees “should be limited to the lone state law cause of
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concluded that the [prevailing party] did not meet its burden of proof,” it abused its
discretion by nevertheless awarding attorney’s fees.85 When attorney’s fees implicate
multiple parties86 or multiple issues87 the burden is on the prevailing party — not the court
— to segregate attorney’s fees to demonstrate they are “both reasonable and necessarily
incurred.”88
We appreciate the difficulty of apportioning attorney’s fees here, and the
superior court made an admirable effort to do so in a fair and reasonable way. We have
held in cases involving apportionment of fees among multiple non-prevailing parties that
the fees should “be roughly proportionate to their active involvement in the case.”89 But
84
(...continued)
action”); see also Maness v. Daily, 307 P.3d 894, 906-07 (Alaska 2013) (remanding to
allocate attorney’s fees between state and federal law claims).
85
Offshore, 282 P.3d at 359.
86
See Mitford v. de Lasala, 666 P.2d 1000, 1008 (Alaska 1983) (“[I]f these
two [prevailing] defendants can show that the time that their counsel has spent to this
point on this case can be segregated to reflect services rendered solely in their behalf, an
award of attorneys’ fees to them as prevailing parties pursuant to . . . Rule 82(a)(2)
would be appropriate.”).
87
Maness, 307 P.3d at 906-07; Offshore, 282 P.3d at 358-59.
88
Nautilus Marine Enters., Inc. v. Exxon Mobil Corp., 332 P.3d 554, 560
(Alaska 2014) (“Rule 82(b)(2) provides that the attorney fees on which an award is based
must be both reasonable and necessarily incurred.”); see Alaska R. Civ. P. 82(b)(2) (“In
cases in which the prevailing party recovers no money judgment, the court shall award
the prevailing party in a case which goes to trial 30 percent of the prevailing party’s
reasonable actual attorney’s fees which were necessarily incurred . . . .”).
89
Nautilus, 332 P.3d at 564; see also Cizek v. Concerned Citizens of Eagle
River Valley, Inc., 71 P.3d 845, 853-54 (Alaska 2003) (holding unequal apportionment
of fees between co-defendants was not abuse of discretion if parties’ litigation efforts
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“[i]t was not the superior court’s duty to ‘parse’ the record to ascertain which fees were
reasonably related to” Lina’s defense; that burden was on Lina.90 Lina failed to meet his
burden, instead merely “identif[ying] all those items that involved him.” On remand Lina
must more precisely “segregate [his] fees and demonstrate which are reasonably related
to the limited issue” of defending Gonzalez’s individual claim against him.91 If he cannot
meet that burden, he is not entitled to attorney’s fees.92
V. CONCLUSION
The superior court’s decision is AFFIRMED in all respects except the
calculation of Lina’s attorney’s fees, which we REMAND for further proceedings
consistent with this opinion.
89
(...continued)
were unequal); Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 77 (Alaska 1989)
(“Each plaintiff should be charged with his proportional share of fees incurred prior to
the resolution of his claim.”).
90
Offshore, 282 P.3d at 359; see also Lyman v. State, 824 P.2d 703, 707
(Alaska 1992) (“For attorney’s fees, the superior court can order . . . counsel to itemize
the hours and nature of the work spent on the case.” (citing Hayes v. Xerox Corp., 718
P.2d 929, 939 (Alaska 1986))).
91
See Offshore, 282 P.3d at 359.
92
Id.
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