BONNIE L. LUTHER, Appellant,
v.
STEVIE W. LANDER, Appellee
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.].
OPINION
FABE,
Justice.
I.
INTRODUCTION
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.
II.
FACTS AND PROCEEDINGS
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.
III.
STANDARD OF REVIEW
"
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]
IV.
DISCUSSION
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
...