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North Slope Borough v. Brower

Supreme Court of Alaska

August 28, 2009

NORTH SLOPE BOROUGH, Appellant,
v.
Isabel BROWER, Individually and as Personal Representative of Alfred Brower, Deceased, Appellee.

Page 309

Timothy M. Lynch, Lynch & Blum, PC, Anchorage, and Linda B. Clapham, Gordon & Rees, LLP, Seattle, Washington, for Appellant.

David Henderson, Law Offices of David Henderson, Bethel, for Appellee.

Page 310

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

After Alfred Brower died in a snow machine accident, his mother, Isabel Brower, sued the North Slope Borough under the survival of claims statute, AS 09.55.570, and the wrongful death statute, AS 09.55.580. A jury found that Isabel was dependent on Alfred, entitling her to damages as a statutory beneficiary under the wrongful death statute. Among other things, the jury awarded Isabel compensation for Alfred's pre-death pain and suffering and his lost future earnings. The borough appeals on various damages issues. It argues primarily that the trial court erroneously allowed Isabel to recover damages both as the wrongful death statute statutory beneficiary and as the personal representative of Alfred's estate. It also argues both that Isabel did not sufficiently prove that she was dependent on Alfred's earnings and that even if she were entitled to his future earnings, they should be measured by Isabel's life expectancy, not Alfred's. Finally, it argues that the trial court abused its discretion by refusing to grant a new trial or remittitur of the damage award based on Isabel's maximum possible recovery. We affirm, because Kulawik v. ERA Jet Alaska [1] controls most of these issues.

II. FACTS AND PROCEEDINGS

Alfred Brower died in late May 2005, when his snow machine went into a hole in the ice near Barrow. The hole had been dug by the North Slope Borough Department of Public Works. Alfred was then eighteen years old, was unmarried, and had been living in Barrow with his widowed mother, Isabel Brower. He was unemployed, but hunted and fished for Native subsistence foods that he shared with his mother. He also helped his mother around the house by cooking, cleaning, and doing maintenance work. He had no will.

After Alfred's death, Isabel opened an estate on his behalf and sued the North Slope Borough. She sought damages both as the personal representative of the estate and on her own behalf as an " other dependent" under the wrongful death statute, AS 09.55.580(a).[2] She alleged that the borough's negligence caused Alfred's death and pre-death pain and suffering, and sought " all categories of loss allowed" under the wrongful death statute, AS 09.55.580, and under the survival of claims statute, AS 09.55.570.[3] The case was tried to a jury in August 2007.

Page 311

At trial Isabel called a forensic economist who testified about the economic impact Alfred's death had on Isabel and on Alfred's estate. He testified that Isabel's life expectancy at the time of her son's death was about twenty-five and a half more years (assuming she would live to age eighty-two) and that Alfred would have had a life expectancy of fifty-four and a half more years (assuming he would have lived to age seventy-three). The economist calculated the value of the earnings Alfred would have made as a heavy truck driver, as well as the present value of the loss of his household services and subsistence support.[4] He testified that the present value of Alfred's lost future earnings was $877,700, and that the present value of his subsistence support (hunting and fishing) and non-market services (household support) was $565,400. Adding those two figures, he testified that the total present value of the future economic losses caused by Alfred's death was $1,443,100.

The jury returned a verdict finding that the borough was liable for Alfred's death. The jury also found that Isabel was dependent on Alfred at the time of his death, entitling her to damages as a statutory beneficiary under the wrongful death statute. The jury awarded Isabel damages in the following categories:

(a) Past Non-Economic Loss to Alfred Brower (pre-death pain and suffering of Alfred Brower):

$400,000.00

(b) Past Non-Economic Loss to Isabel Brower (including loss of consortium, affection and companionship and pain and suffering of Isabel Brower):

$250,000.00

(c) Past Economic Loss of Isabel Brower (loss of support and assistance and loss of past earnings of Alfred Brower):

$ 62,250.00

(d) Future Non-Economic Loss to Isabel Brower (loss of consortium, affection and companionship, pain and suffering):

$200,000.00

(e) Future Economic Loss of Isabel Brower (loss of support and assistance and loss of future earnings of Alfred Brower) (reduced to present value):

$844,115.00

(Emphasis in original.) The trial court reduced the jury's non-economic damage awards per the parties' agreement about the application of the AS 09.17.010 statutory cap on damages and awarded Isabel prejudgment interest, costs, and attorney's fees. The resulting final judgment was $1,564,071.40.

The borough moved for a new trial or a remittitur. The trial court denied the motion.

The borough appeals.

III. STANDARD OF REVIEW

This case primarily raises questions of law and statutory interpretation, to which we apply our independent judgment.[5] We review for abuse of discretion a trial court's denial of a new trial or remittitur, reversing only when we are " ‘ left with a firm conviction on the whole record that the trial judge made a mistake in refusing to order a remittitur or grant a new trial’ and where intervention on our part is necessary to prevent a miscarriage of justice." [6]

IV. DISCUSSION

A. Whether It Was Error To Allow Isabel To Recover Damages for Alfred's Pre-Death Pain and Suffering and for His Future Earnings

The borough argues that awarding damages for Alfred's pre-death pain and suffering and for his future earnings impermissibly allowed Isabel to recover as both a personal representative of Alfred's estate and as a statutory beneficiary under the wrongful death statute. It argues that the wrongful

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death statute, AS 09.55.580, prevents an estate from recovering when there are statutory beneficiaries and creates a " mutually exclusive dichotomy" between recovery as a statutory beneficiary and recovery on behalf of the estate.

The trial court rejected the borough's position, reasoning that the wrongful death statute reflects " [t]he legislative policy that a dependent be eligible for full pecuniary damages that an estate would have recovered" and that " when at least one statutory beneficiary is found to exist, the beneficiary must be able to recover all pecuniary damages to an estate." [7]

1. Pre-death pain and suffering damages

The borough argues that Isabel, in her capacity as the representative of Alfred's estate, should not have recovered damages for Alfred's pre-death pain and suffering because " Alaska does not allow an Estate to recover where there are statutory beneficiaries." It bases this argument on language in the wrongful death statute, which states that the amount recovered under the statute " shall be exclusively for the benefit of the decedent's spouse and children ... or other dependents." [8] But the pre-death pain and suffering damages were not recovered under the wrongful death statute, AS 09.55.580; they were recovered under the survival statute, AS 09.55.570. The borough's argument as to this award is therefore without merit. Isabel was both a wrongful death action " other dependent" and the representative of Alfred's estate. In her latter capacity she was entitled to recover the award for Alfred's pre-death damages.[9] Nothing in the wrongful death statute prevents a person who is a statutory beneficiary under that ...


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