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Bush v. Elkins

Supreme Court of Alaska

January 23, 2015

JAMES F. BUSH, Appellant,
v.
CRAIG ELKINS and THE GOVERNMENT EMPLOYEES INSURANCE COMPANY, d/b/a GEICO CASUALTY COMPANY, Appellees

Page 1246

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, Anna Moran, Judge. Superior Court No. 3KN-10-01140 CI.

James F. Bush, Pro se, Sterling, Appellant.

Kimberlee A. Colbo, Hughes Gorski Seedorf Odsen & Tervooren, LLC, Anchorage, for Appellees.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 1247

FABE, Chief Justice.

I. INTRODUCTION

An adult passenger in a car was injured in a single-car accident. The passenger and his family brought suit against the vehicle's unlicensed minor driver, the minor's mother, the owner of the car, the insurance policy holder, the insurer, and the insurance adjuster who handled the claims arising from the accident. The passenger's father attempted to raise a contractual interference claim, but the superior court concluded that the complaint did not state such a claim on his behalf. The superior court dismissed the father's only other claim -- intentional infliction of emotional distress -- removed the father's name from the case caption, and ordered the father to

Page 1248

cease filing pleadings on behalf of other parties.

After the superior court judge dismissed him from the action, the passenger's father attempted to file a first amended complaint, which expressly stated his contractual interference claim on the theory that he was a third-party beneficiary of the contracts between his son and his son's doctors. But the superior court denied the father leave to amend the complaint because the father had already been dismissed from the case. Following a settlement among all of the other plaintiffs and defendants -- a settlement in which the father did not join -- the superior court granted final judgment to the insurer. The insurer moved for attorney's fees against the father under Alaska Civil Rule 82, but the father never responded to that motion. The superior court granted the award without soliciting a response from the father, and the father appeals.

We affirm the superior court's order dismissing the father's claims and denying leave to amend the complaint because the proposed first amended complaint was futile. But because the superior court had barred the father from filing any further pleadings in the case and had removed his name from the caption, the superior court had a responsibility to inform the self-represented father that he was permitted to file an opposition to the motion for attorney's fees. We thus vacate the fee award and remand to the superior court to afford the father an opportunity to respond to the insurer's motion for reasonable attorney's fees.

II. FACTS AND PROCEEDINGS

A. The Accident And Initial Complaint

This action arises out of a single-car accident in early July 2010. The driver was 16-year-old Bradley Luke, who was not licensed to drive in Alaska. Bradley crashed a car owned by Monte Luke, which was insured by Government Employees Insurance Company (GEICO) under a policy held by Coral Frank. Craig Elkins is the GEICO employee in Alaska who handled claims arising from the accident. Frank Bush, an adult passenger in the car, suffered severe injuries in the accident.

Frank Bush, his mother, his father, and his sister filed a civil complaint against Bradley Luke as the driver of the car and against Bradley's mother Arlene Luke; Monte Luke, the owner of the car; Coral Frank, the policy holder; GEICO, the insurer; and its employee, Elkins. The plaintiffs proceeded without ...


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