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Luther v. Lander

Supreme Court of Alaska

May 13, 2016

BONNIE L. LUTHER, Appellant,

          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Paul E. Olson, Judge. Superior Court No. 3AN-12-10439 CI.

         Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant.

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

         Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, Justices. [Winfree, Justice, not participating.].


         FABE, Justice.


         In November 2010 Stevie Lander was unable to complete a right turn on an icy road, and her vehicle slid into a car driven by Bonnie Luther. Although Luther reported no injuries at the scene of the accident, that evening she went to the emergency room for head and neck pain, and within weeks she began to suffer from lower back pain that prevented her from returning to her job as a flight attendant. Luther attributed her pain to the accident and sued Lander for negligence in 2012. Lander admitted negligence and made an offer of judgment, which Luther did not accept. The case proceeded to trial in 2014, and the jury awarded Luther a total of $3,259 for past medical expenses, past wage and benefit loss, and past non-economic losses.

         The superior court granted attorney's fees to Lander under Alaska Rule of Civil Procedure 68(b) and denied Luther's motion for a new trial. Luther appeals, arguing that the superior court erred by denying her a new trial based on inadequate damages and by excluding evidence of the amount of payments for medical treatment made by Luther's insurer. She also challenges the superior court's decision to grant attorney's fees based on billing records that were filed under seal. We conclude that it was error to exclude evidence of payments made for Luther's medical treatment by her insurer. But because that error was harmless, we affirm the final judgment entered by the superior court.


         A. Facts

         In November 2010 Bonnie Luther was stopped at a red traffic light, traveling southbound on Spenard Road in Anchorage. Stevie Lander was traveling westbound on Northern Lights Boulevard and attempted to make a right turn. Lander was unable to complete the turn on the icy road, and her SUV slid into the front driver's side of Luther's car. Photographic evidence revealed that the accident caused only minor damage to Luther's car: a small dent above the front driver's side tire. And there was no damage to Lander's SUV. The airbags did not deploy in either vehicle.

         At the accident scene, Luther told a police offer that she was " fine" and did not require medical attention. But she went to the emergency room that evening because her head hurt and her neck was feeling " tight." At the hospital she was diagnosed with a cervical strain, prescribed pain medication, and discharged. Luther did not complain of lower back pain on the day of the accident, and no diagnosis was made regarding her back. Luther testified that the symptoms she experienced immediately after the accident -- head pain and tightness in her neck and shoulder -- subsided within a few weeks to a month.

         Luther had worked as a flight attendant for Alaska Airlines since 2007, and though she was not working at the time of the accident, as she was recovering from recent surgery, she was scheduled to return to work in December 2010. But two days after the accident, Luther was flying as a passenger on a flight to Hawaii when she first experienced pain in her back and into her left buttock. When she arrived home in Alaska near the end of November, Luther was diagnosed as " likely ha[ving] a muscle and ligament strain of her lower back . . . [and having possibly] wrenched the sacroiliac joint." An x-ray showed " no evidence of fracture," and Luther was referred to Orthopedic Physicians Anchorage. Sharon Sturley, a physician assistant at the practice, found no " acute fracture or dislocation" and noted that the x-rays showed evidence of " mild degenerative disc and joint disease."

         Luther continued to experience lower back pain and to see Sturley for monthly visits through November 2011 with little notable change in her condition. In April 2011, an orthopedic specialist in the same practice as Sturley diagnosed Luther with a " small annular tear and a tiny disc protrusion" but noted that Luther's " bigger symptoms" were due to trochanteric bursitis and irritation of her sacroiliac joint. This doctor did not comment on the cause of either condition and suggested a steroid injection, which Luther declined. Between November 2011 and July 2012 Luther worked for the State of Alaska in Juneau, where she continued to see an orthopedic specialist. She was again diagnosed as having " likely [sacroiliac] joint pain" and " bilateral trochanteric bursitis." The doctor did not state that either affliction was caused by the car accident, and Luther again declined a recommended steroid injection in favor of continued physical therapy. Throughout her treatment, Luther went to physical therapy and received acupuncture treatment, though her attendance at physical therapy was somewhat irregular. Both Sturley and the orthopedic specialist in Juneau provided Luther with monthly " work status reports" to be submitted to Alaska Airlines so that Luther could remain employed while on medical leave.

         In July 2012 Luther returned to Anchorage and continued her work for the State. Luther was evaluated by James Glenn, another physician assistant in the orthopedic practice, in December 2012. Glenn reported that he was " somewhat perplexed" as to why Luther was still pursuing treatment two years after the accident without seeking " more aggressive" measures. He suggested various treatment options including injections, a new MRI, and x-rays, and he noted that Luther might consider a disc replacement in order to return to work as a flight attendant. Glenn refused to provide Luther with a work status report to indicate that Luther had a " full disability" that prevented her from returning to work. After her appointment with Glenn, Luther appears to have stopped seeking medical treatment, and in December 2012 she resigned from her position with Alaska Airlines.

         B. Proceedings

         In October 2012 Luther filed a complaint in the superior court alleging that Lander was negligent and that her negligence had caused Luther to incur injuries resulting in ongoing medical expenses, lost wages, and pain and suffering. Lander admitted negligence and in December 2013 served an offer of judgment for $28,500 plus prejudgment interest, allowable Alaska Civil Rule 79 costs, and Alaska Civil Rule 82(b)(1) attorney's fees. Luther did not accept the offer, and the case proceeded to trial in March 2014.

         At trial, Luther testified that the accident had left her unable to perform her duties as a flight attendant, but she did not call any of her own doctors or other expert medical witnesses. Instead, Luther relied on her own testimony about her treatment and on her medical records. In support of her claim for damages for past medical expenses, Luther introduced evidence of the treatment she received after the accident. Some of the evidence she sought to introduce revealed that Luther's insurer, GEICO, paid some of Luther's medical expenses after the accident. The superior court granted Lander's request that the evidence be excluded. The superior court also excluded all evidence of the costs of the various treatment charges paid for by GEICO. But Luther was permitted to introduce evidence of the treatments themselves.

         Luther testified that her total unpaid medical expenses amounted to $6,745.86. Lander, relying on the report and testimony of Dr. Bald, an independent medical examiner retained by Lander, asked the jury only to award Luther $809 for past medical costs, the amount Luther paid for treatment incurred with Orthopedic Physicians Anchorage in November 2011 and her acupuncturist in June 2011. Dr. Bald reported that Luther " did not incur anything more significant than a muscular strain-type injury" as a result of the car accident and that given the delay in the onset of symptoms, the accident could not have injured her sacroiliac joint or her lumbar spine. While Dr. Bald believed that the treatment Luther received during the year following the accident was " reasonable, appropriate, and necessary for treatment of injuries incurred in [the] accident," he concluded that it was improbable that Luther's persistent pain was attributable to the accident. He also found that by the time he examined Luther in 2013, she was " doing objectively very well" and should have been able to return to work, and that Luther's pre-accident surgery and inconsistent attendance at physical therapy could have slowed her recovery.

         Luther also claimed lost wages and benefits of more than $50,000 for the time between the accident and November 2011. She testified that her base pay for the relevant time period would have been $28,872. But according to her W-2s, she made considerably less than that in the years preceding the accident because she was subject to furloughs in 2009 and 2010 and was on medical leave from July 2010 through the time of the accident. Luther also claimed losses for various benefits she received as a flight attendant, including additional pay, an annual bonus, and flight benefits for herself, her friends, and her family. Acknowledging that it was difficult to value those additional benefits accurately, Luther estimated their value at a total of $15,100. Luther claimed $7,150.52 in payments she made for COBRA medical insurance and also requested damages for non-economic losses. Luther did not claim future economic losses.

         Lander argued that the maximum Luther should be awarded for lost wages was $9,000, the average of Luther's annual earnings in 2008, 2009, and 2010. And Lander asserted that, because Luther had not worked enough hours in 2010 to qualify for medical insurance coverage from Alaska Airlines, she had already been paying for COBRA at the time of the accident. Lander argued that even if the accident had not occurred and Luther had returned to her job as a flight attendant in December 2010 as planned, she would have to have continued paying for her own insurance until she had worked long enough to qualify for coverage.

         At the conclusion of the trial, the jury returned a verdict awarding Luther $809 for past medical expenses, $1,700 for past wage and benefit loss, $750 for past non-economic losses, and no amount for future non-economic losses, for a total award of $3,259. Lander moved for attorney's fees under Alaska Rule of Civil Procedure 68(b)(2)[1] and filed her billing records " under seal." This designation was later changed to " confidential."

         Luther moved for a new trial under Alaska Rule of Civil Procedure 59(a),[2] arguing that the jury's verdict was " manifestly unfair . . . under the evidence produced and the circumstances of the case." She argued that the jury's awards for past medical expenses and lost wages and benefits were insufficient, and she challenged the jury's award for pain, suffering, and loss of enjoyment of life as " ridiculously small." Luther also contended that the jury should have awarded her damages for future loss of enjoyment of life and the cost of COBRA insurance.

         The superior court awarded Lander $8,590.75 in attorney's fees and entered final judgment, offsetting Luther's damages award and prejudgment interest such that Luther owed Lander a total of $6,494.17.[3]

         Luther appeals, arguing that the superior court erred by (1) denying her request for a new trial on the ground of inadequate damages, (2) excluding evidence of $10,000 in medical expenses paid by Luther's insurer, GEICO, and (3) allowing Lander to file her billing records under seal.


          " We review the superior court's evidentiary rulings for abuse of discretion." [4] " Under Alaska Civil Rule 61, errors in the admission or exclusion of evidence are grounds for reversal only if failure to reverse 'appears to [this] court inconsistent with substantial justice.'" [5] " [W]e must disregard harmless errors that have no substantial effect on the rights of parties or on the outcome of the case." [6]

          " A 'refusal to grant a new trial is reviewed under an abuse of discretion standard'; accordingly, we review the record 'in the light most favorable to the non-moving party.'" [7] " An abuse of discretion exists when evidence to support the verdict was completely lacking or was so slight and unconvincing as to make the verdict plainly unreasonable and unjust." [8] " We disturb the trial court's exercise of discretion only 'in the most exceptional circumstances to prevent a miscarriage of justice'" [9] and will not disturb a verdict " unless the evidence . . . is so clearly to the contrary that reasonable persons could not differ in their judgment." [10]

          " We review the decision to award attorney's fees for abuse of discretion and [will] overturn it only where the award is manifestly unreasonable." [11] " However, '[t]he independent standard of review . . . applies to considering whether the trial court properly applied the law when awarding attorney's fees.'" [12]


         A. The Superior Court's Exclusion Of Evidence Of Luther's Treatment Expenses Was Error, But The Error Was Harmless.

         1. Evidence of the full cost of Luther's medical treatment is relevant to a determination of the severity of her injuries.

         Luther argues that the superior court erred by excluding evidence of the cost of her medical treatment paid by GEICO, Luther's insurer. Lander sought to exclude the evidence of Luther's medical bills on the ground that our decision in Ruggles v. Grow would prevent Luther from recovering any portion of the medical expenses paid by GEICO.[13] Luther countered that excluding the amount of the expenses would mislead the jury into believing that Luther's injuries were less serious because she had incurred few medical expenses. To address that problem, Luther requested a jury instruction that would inform jurors that her actual medical expenses exceeded those claimed at trial by $10,000, the amount of medical expenses paid by her own insurer.

         The superior court ruled on the issue from the bench at the beginning of the trial, granting Lander's request to exclude the evidence. The superior court not only prohibited evidence of the source of the payments, but also prevented any evidence of the amounts charged for Luther's various treatments. For instance, one of Luther's exhibits was a chronological treatment history prepared by her orthopedic specialist, and the superior court's ruling required redaction of any treatment payments shown in that exhibit that were covered by GEICO. Luther argued for " either an exhibit or an instruction demonstrating what the costs were for each treatment" and suggested that Luther's inability to recover those expenses could be explained in a ...

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