MICHELE MARSHALL and DONALD MARSHALL, Husband and Wife, Appellants,
MATTHEW H. PETER and ROBERT L. NELSON, Appellees.
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage No. 3AN-14-04950 CI, Catherine
M. Easter, Judge.
C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellants.
Gregory R. Henrikson and Laura Eakes, Walker & Eakes,
Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
Justices. [Fabe, Justice, not participating.]
particularly icy day, a driver came to a stop about one-half
car length behind a vehicle stopped at a stoplight. After the
vehicle ahead began to move forward, the driver behind
released his foot from the brake, but the driver ahead
stopped sooner than the following driver expected. Despite
his braking and his low speed, the driver behind slid into
the back of the car. The driver ahead contends that no
reasonable juror could have found the other driver not
negligent and that the superior court therefore should have
granted her motion for a directed verdict on liability. We
conclude that the jury reasonably found the driver behind not
negligent, and we therefore affirm the denial of the motion.
FACTS AND PROCEEDINGS
on an icy early March day, plaintiff Michele Marshall was
stopped at a stoplight on 36th Avenue in Anchorage preparing
to turn left onto New Seward Highway from the outside turn
lane. Two Jack Russell terriers were in the backseat.
Defendant Matthew Peter testified that he came to a complete
stop about one-half car length behind her. After about 30
seconds, the light turned green, Marshall began to move
forward, and Peter released his foot from the brake. But
Marshall stopped sooner than Peter expected; Peter returned
his foot to the brake, attempted to stop, and slid into
Marshall's vehicle. He testified that his car "just
tapped the back of her car" at a speed that
"couldn't [have] be[en] more than three miles an
hour." He had yet to place his foot on the accelerator.
recalled stopping and then after a "long pause"
feeling "slammed" from behind. She testified that
she had not yet entered the intersection when the light
turned yellow for the second or third vehicle in front of
her: "[K]nowing that I would not be able to make it
through on the . . . red light[, ] I came to a stop on . . .
the red light." The collision was so forceful, she
testified, that her car slid forward one car length and her
purse and dogs fell to the floor. She confirmed that her
brake lights were functioning and emphasized both the
particularly slick conditions and the "very short"
nature of the light. Peter recalled that one or two vehicles
were in front of Marshall; he and Marshall "weren't
very far behind." Though Peter could see the
intersection, he did not recall whether the light was red
when he saw Marshall stop. His attention, he explained, was
focused on the space between his car and hers; he confirmed
he was not "in any way distracted."
scene of the collision, Officer Michael Farr of the Anchorage
Police Department questioned Marshall and Peter about the
incident. Farr testified that there appeared to be no damage
to either vehicle. Marshall told him that she was
experiencing neck pain and noted that a previous collision
had left her completely disabled. Based on Peter's and
Marshall's brief descriptions, Farr concluded that
Marshall had not done "any improper driving" and
that Peter had engaged in an improper start.
February 2014, about two years after the collision, Marshall
and her husband filed a complaint alleging that Peter was
negligent and claiming about $212, 500 in damages - car
damage ($1, 029.35), medical bills ($51, 458.57), personal
pain and suffering ($150, 000), and loss of consortium ($10,
000). About one month later, Marshall moved for summary
judgment on the issue of Peter's liability. Within the
week Peter made two offers of judgment under Alaska Civil
Rule 68: $2, 651.17 for Marshall's claims plus costs,
applicable interest, and Alaska Civil Rule 82 attorney's
fees; and $100 for her husband's loss of consortium claim
plus costs, applicable interest, and Rule 82 attorney's
fees. Marshall did not reply to either offer,
and about two months later the superior court denied her
motion for summary judgment.
jury trial, Marshall, Peter, and Officer Farr testified to
the above account. Marshall also called four other witnesses:
her husband, the owner of the car Peter was driving,
two physicians who treated her before and after the March
Peter rested Marshall moved for a directed verdict on the
issue of liability. The court denied the motion. The court
stated that the motion was not timely because Marshall did
not make the motion before she rested, and even if timely
there was evidence to suggest that liability was an issue -
the parties were stopped at a stoplight, the roads were very
icy, and Peter testified that "he hadn't even put
his foot on the gas."
special verdict form, the jury found Peter not negligent.
Marshall then moved for judgment notwithstanding the
verdict and in the alternative for a new
trial.Peter moved for actual attorney's fees
under Rule 68 and in the alternative for fees under
Civil Rule 82. The court denied Marshall's motion and
granted Peter's motion, awarding him 75% of reasonable
actual fees under Rule 68 for a total of $61, 641.00.
appeals the denial of her motion for a directed verdict and
the attorney's fee award.
STANDARD OF REVIEW
reviewing the denial of a motion for a directed verdict,
"we apply an objective test to 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."  "[B]ecause the
sufficiency of the evidence to support a jury verdict is a
question of law, " we review the denial of a motion for
a directed verdict de novo.
'We review an award of attorney's fees for abuse of
discretion, ' so a fee award 'will not be disturbed
on appeal unless it is "arbitrary, capricious, or
manifestly unreasonable." ' " But we
consider de novo "[w]hether the superior court applied
the appropriate legal standard in its consideration of a fee
petition, " including "whether [the] superior
court correctly determined a settlement offer's
compliance with Rule 68."
A.Reasonable Jurors Could Differ Over Whether Peter ...