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Dapo v. State

Supreme Court of Alaska

December 13, 2019

RAYMOND DAPO, Appellant,
v.
STATE OF ALASKA, OFFICE OF CHILDREN'S SERVICES and TAUN LUCAS, Appellees.

          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 ...


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