[Copyrighted Material Omitted]
from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Michael P. McConahy, Judge.
Superior Court No. 4FA-15-01892 CI
C. Kramer and Robert John, Kramer and Associates, Fairbanks,
Tinker Bray, Assistant Attorney General, Fairbanks, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee State of
Alaska, Office of Childrens Services.
appearance by Appellee Taun Lucas.
Bolger, Chief Justice, Winfree, Stowers, and Maassen,
Justices. [Carney, Justice, not participating.]
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 Childrens Services (OCS) for
apportionment of fault and assigned the claim to the man in
exchange for his agreement to release her from liability.
superior court granted OCSs 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
courts order dismissing the apportionment claim and remand
the case for further proceedings.
II. FACTS AND PROCEEDINGS
Dapo was born in 1990. OCS took custody of him ten years later
and, in April 2000, placed him in Taun Lucass 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.
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
moved to dismiss Lucass third-party claim on grounds that it
was barred by Alaskas 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 childs legal custodians are the alleged tortfeasors, is
unconstitutional." We subsequently vacated the summary
judgment order in that earlier case in a published
opinion. We then granted a petition for review
on the statute of repose issue in Dapos case, vacated the
superior courts 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 Dapos
claims and only then consider whether the statute was
unconstitutional as applied.
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