Appeal
from the Superior Court of the State of Alaska, Fourth
Judicial District, Superior Court No. 4FA-15-01892 CI
Fairbanks, Michael P. McConahy, Judge.
Michael C. Kramer and Robert John, Kramer and Associates,
Fairbanks, for Appellant.
Aisha
Tinker Bray, Assistant Attorney General, Fairbanks, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee State of
Alaska, Office of Children's Services. No appearance by
Appellee Taun Lucas.
Before: Bolger, Chief Justice, Winfree, Stowers, and Maassen,
Justices.
Carney, Justice, not participating.
OPINION
MAASSEN, JUSTICE
I.
INTRODUCTION
A young
man filed suit against his adoptive mother for sexual abuse
that allegedly occurred 13 years earlier, shortly after he
was adopted. The adoptive mother filed a third-party claim
against the Office of Children's Services (OCS) for
apportionment of fault and assigned the claim to the man in
exchange for his agreement to release her from liability.
The
superior court granted OCS's motion to dismiss the
apportionment claim, holding that it was barred by the
ten-year statute of repose, AS 09.10.055(a). The man appeals.
We hold that the statute of repose applies to the
apportionment claim and is not unconstitutional as applied.
However, we also decide that there are issues of fact
regarding the applicability of two exceptions to the statute
of repose: claims for gross negligence and claims for
breaches of fiduciary duty. We therefore reverse the superior
court's order dismissing the apportionment claim and
remand the case for further proceedings.
II.
FACTS AND PROCEEDINGS
A.
Facts
Raymond
Dapo was born in 1990. OCS[1] took custody of him ten years later
and, in April 2000, placed him in Taun Lucas's foster
home. Lucas and her husband David legally adopted Dapo in May
2002. According to Dapo, Lucas began sexually abusing him
shortly thereafter; Lucas, however, alleged that she was
sexually abused by Dapo, and Dapo, then 11 years old, was
arrested and charged with two counts of first-degree sexual
assault. The charges were eventually dropped, and Dapo was
returned to the custody of the State as a dependent child.
B.
Proceedings
Dapo
reached the age of majority on September 5, 2008. On May 19,
2015, when he was 24 years old, Dapo filed a complaint
against Lucas alleging that she had sexually abused him while
he was a minor. In September 2015 Lucas filed a third-party
claim against OCS for apportionment of fault, contending that
OCS "had a duty to protect" Dapo and
"negligently failed to protect" him. A month
earlier she assigned to Dapo any rights she might have to
recover on the apportionment claim in exchange for a complete
release from liability for his sexual abuse claims against
her.
OCS
moved to dismiss Lucas's third-party claim on grounds
that it was barred by Alaska's ten-year statute of
repose, AS 09.10.055. The superior court denied the motion.
The court concluded that the statute of repose did not apply,
incorporating the reasoning of a summary judgment order in an
earlier case in which the superior court had held that
"[t]he statute of repose, as applied to facts in which
the child's legal custodians are the alleged tortfeasors,
is unconstitutional." We subsequently vacated the
summary judgment order in that earlier case in a published
opinion.[2] We then granted a petition for review on
the statute of repose issue in Dapo's case, vacated the
superior court's order, and remanded the case. Based on
our earlier decision, we instructed the superior court to
first determine whether the statute of repose applied to
Dapo's claims and only then consider whether the statute
was unconstitutional as applied.
On
remand, the superior court held that the statute of repose
"applies to and bars the third-party allocation of fault
claim against OCS. The statute of repose is also not facially
unconstitutional nor unconstitutional as applied to the
third-party allocation of fault claim against OCS in this
case." The court dismissed all claims against OCS with
prejudice. Dapo now appeals.
III.
STANDARD OF REVIEW
We
review a grant of summary judgment de novo.[3] Summary judgment
is appropriate when "no genuine issues of material fact
exist and where the moving party is entitled to judgment as a
matter of law."[4] When ruling on a summary judgment motion,
we view the facts in the light most favorable to the
non-moving party.[5]
We
interpret statutes "according to reason, practicality,
and common sense, taking into account the plain meaning and
purpose of the law as well as the intent of the
drafters."[6] "A presumption of constitutionality
applies, and doubts are resolved in favor of
constitutionality."[7]
IV.
DISCUSSION
Alaska's
statute of repose, AS 09.10.055, bars "an action for
personal injury, death, or property damage unless commenced
within 10 years of.. . the last act alleged to have caused
the personal injury, death, or property
damage."[8] The statute lists a number of exceptions,
including, as relevant here, when the personal injury
resulted from "an intentional act or gross
negligence"[9] or a "breach of trust or fiduciary
duty."[10]The parties agree that the statute of
repose does not bar Dapo's sexual abuse claim against
Lucas, both because of the "intentional act"
exception and, separately, because AS 09.10.065(a) allows
"[a] person [to] bring an action at any time for conduct
that would have, at the time the conduct occurred,"
constituted various sexual offenses, including "felony
sexual abuse of a minor," "felony sexual
assault," and "unlawful exploitation of a
minor." The conduct alleged by Dapo falls within the
scope of AS 09.10.065(a), which therefore lifts the time bar
for his claim against Lucas.[11]
The
parties' dispute centers on whether the statute of repose
bars Lucas's third-party claim for apportionment against
OCS. The superior court held that it did. Dapo, as assignee
of that claim, argues that the statute does not apply because
of rules of statutory interpretation and the rationale of our
decision in Alaska General Alarm, Inc. v. Grinnell,
in which we discussed apportionment claims in the context of
statutes of limitation.[12] Dapo argues in the alternative that
if the statute of repose does apply, the apportionment claim
falls within the statute's exceptions for claims
involving gross negligence and breach of fiduciary duty.
Finally, he argues that if the statute of repose otherwise
applies, it is unconstitutional as applied because it denies
him access to the courts. We discuss each argument in turn.
A. The Statute Of Repose For The Underlying Claim
Applies To The Apportionment Claim As Well.
Dapo
argues that the statute of repose does not bar apportionment
claims because it is specifically limited to actions
"for personal injury, death, or property damage,
"[13] conspicuously omitting claims for
apportionment. The question we must answer is whether a claim
for the apportionment of personal injury damages constitutes
"an action for personal injury" as that phrase is
used in the statute. Dapo contends that we should apply the
doctrine of expressio unius est exclusio alterius -
"where certain things are designated in a statute, all
omissions should be understood as
exclusions."[14]
But the
legislature has indicated its intent that apportionment
claims based on "personal injury, death, or property
damage" be subject to the statute of repose. Alaska
Statute 09.17.080(a) governs apportionment of damages. It
requires the trial court to
instruct the jury to answer special interrogatories or, if
there is no jury, [to] make findings, indicating ... the
percentage of the total fault that is allocated to each
claimant, defendant, third-party defendant, person who has
been released from liability, or other person responsible for
the damages unless the person was identified as a potentially
responsible person, the person is not a person protected
from a civil action under AS 09.10.055 [the statute of
repose], and the parties had a sufficient opportunity to
join that person in the action but chose not to ....
[Emphasis added.]
In
other words, "a potentially responsible person"
should be joined as a party unless "protected from a
civil action under" the statute of repose, in which case
- the statute assumes - the person cannot be joined. But to
ensure that the named parties' percentages of fault may
be accurately determined, fault may be allocated to "a
potentially responsible person" who cannot be joined as
a party because the person is "protected from a
civil action under" the statute of repose-though this
does not result in a judgment against the
"protected" person.[15]
The
apportionment statute thus specifically acknowledges that
persons who would otherwise be "responsible for the
damages" on an apportionment claim may be persons
"protected from a civil action" by the statute of
repose. Legislative history confirms that the legislature was
aware of the interplay between the statute of repose and
apportionment claims. Discussing the 1997 Tort Reform
Initiative-which both created the apportionment statute and
substantially revised the statute of repose[16] -
Representative Davies stressed to the House Finance Committee
that "the statute of repose removes certain people from
responsibility.... [I]f a person is barred from being brought
to the table by the statute of repose ... they cannot be
apportioned a portion of the fault."[17] Dapo directs
us to no contrary legislative history.
Dapo
argues, however, that the statute of repose should not apply
to Lucas's apportionment claim because of the rationale
of Alaska General Alarm, Inc. v.
Grinnell.[18] In that case, observing that
"third-party actions [for apportionment] are
traditionally deemed to accrue upon judgment or
settlement" of the underlying claim, we held that the
statute of limitations governing the underlying claim
"should not bar the liability of third-party defendants
to the plaintiff for their share of
fault."[19] We reasoned that if the statute of
limitations barred third-party liability, then defendants
would have incentive to wait until after the limitations
period expired before joining third parties, thereby allowing
"empty chair defendants" - that is, defendants in
name only who could be blamed but who could not be made to
pay damages - and frustrating the plaintiffs
recovery.[20] We also reasoned that Alaska Civil Rules
14(a) and (c), by allowing a defendant to file a third-party
apportionment claim any time after the action commenced,
"were intended to be neutral on the statute of
limitations question."[21]
Alaska
General Alarm was concerned with the statute of
limitations, not the statute of repose, and the differences
dictate a different result here. "[A] statute of
limitation[s] begins to run when the plaintiffs cause of
action accrues or is discovered," whereas the statute of
repose "may bar a cause of action before it
accrues'" because the statute of repose begins
to run from "the last act alleged to have caused the
personal injury."[22] The statute of limitations, though of
fixed duration, is still shaped by a case's
circumstances, beginning to run only when a person
"discovers, or reasonably should have discovered, the
existence of all elements essential to the cause of
action" under the discovery rule.[23] The statute
of repose, on the other hand, "intends to completely
extinguish a defendant's liability upon the expiration of
a certain, set period of time"[24]and is meant to act as
"an absolute bar"[25] to liability; potential
defendants are afforded peace of mind after a set amount of
time regardless of whether the prospective plaintiffs cause
of action has accrued.[26]
Given
the language of the relevant statutes, legislative history,
and the recognized differences between statutes of repose and
statutes of limitation, we conclude that the statute of
repose bars an apportionment claim seeking to apportion fault
"for personal injury, death, or property damage" at
the same time it would bar the underlying claim. Here, the
last act alleged to have caused Dapo's personal injury
occurred before the police took him into custody on September
7, 2002. Lucas's 2015 apportionment claim against OCS is
barred by the ten-year statute of repose-unless it falls
within one of the statute's exceptions, which we address
next.
B.
Whether Lucas's Apportionment Claim Falls Within An
Exception To The Statute Of Repose Presents Unresolved
Questions Of Fact.
The
statute of repose's listed exceptions include claims in
which the alleged "personal injury, death, or property
damage resulted from . . . (B) an intentional act or gross
negligence;... or (F) breach of trust or fiduciary
duty."[27] Dapo argues that both exceptions apply
because, taking all facts in the light most favorable to him
as the non-moving party, [28] his allegations suffice to
show that OCS either was grossly negligent or committed a
breach of trust or fiduciary duty in causing his injuries
from sexual abuse.[29]
1.
The gross negligence exception
To
establish negligence, a party must show "(1) a duty of
care; (2) breach of the duty; (3) causation; and (4)
harm."[30] "Whether a party has a duty of care
and, if so, the nature and scope of that duty are questions
of law."[31]
That
OCS owes at least a duty of reasonable care to a child in its
custody does not appear to be disputed; OCS concedes the
existence of a "special relationship" in such
circumstances. By statute, "a relationship of legal
custody exists" between OCS and a child in its custody,
impos[ing] on the department ... the responsibility of
physical care and control of the child, the determination of
where and with whom the child shall live, the right and duty
to protect, nurture, train, and discipline the child, the
duty of providing the child with food, shelter, education,
and medical care, and the right and responsibility to make
decisions of financial significance concerning the
child.[32]
The
statutory responsibility for determining "where and with
whom the child shall live" necessarily requires that OCS
carry out the responsibility non- negligently. In R.E. v.
State we held that because DFYS - OCS's predecessor
agency - had undertaken to license daycare facilities, it
"was under a duty to exercise reasonable care in
carrying out that function," specifically by taking
reasonable steps to uncover the possibility of sexual
abuse.[33] In P.G. v. State, Department of
Health &Human Services, Division of Family
& Youth Services, we held that "DFYS stands in
a special relationship both with children in need of aid who
come under its supervision and with prospective foster
parents whom it seeks to enlist as their
custodians."[34] This meant that the agency was required
"to exercise due care to minimize potential harm by
making reasonable efforts to gather and disclose facts
necessary to give foster parents an informed basis for
deciding whether to accept" into their home ...