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Marshall v. Peter

Supreme Court of Alaska

August 26, 2016

MICHELE MARSHALL and DONALD MARSHALL, Husband and Wife, Appellants,

         Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage No. 3AN-14-04950 CI, Catherine M. Easter, Judge.

          Robert 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.]


          BOLGER, Justice.


         On a 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.


         A. Facts

         Mid-afternoon 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.

         Marshall 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."

         At the 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.[1]

         B. Proceedings

         In 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.[2] Marshall did not reply to either offer, and about two months later the superior court denied her motion for summary judgment.

         At the 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, [3] and two physicians who treated her before and after the March 2012 collision.

         After Peter rested Marshall moved for a directed verdict on the issue of liability.[4] 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."

         On a special verdict form, the jury found Peter not negligent. Marshall then moved for judgment notwithstanding the verdict[5] and in the alternative for a new trial.[6]Peter moved for actual attorney's fees under Rule 68[7] and in the alternative for fees under Civil Rule 82.[8] 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.

         Marshall appeals the denial of her motion for a directed verdict and the attorney's fee award.


         In 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." [9] "[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.[10]

         " '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." ' "[11] But we consider de novo "[w]hether the superior court applied the appropriate legal standard in its consideration of a fee petition, "[12] including "whether [the] superior court correctly determined a settlement offer's compliance with Rule 68."[13]


         A.Reasonable Jurors Could Differ Over Whether Peter ...

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