Articles Posted in Legal News

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On September 27, 2012, Christopher Slottee, a partner with Atkinson Conway & Gagnon, will be participating in a seminar on Commercial & Residential Landlord-Tenant Law. Mr. Slottee will be presenting information and materials on Alaska law regarding residential leases and the obligations of landlords and tenants. Other topics that will be addressed at the seminar include commercial lease issues, the eviction process, and when a tenant or landlord file for bankruptcy.

The seminar is being organized by Sterling Education Services. You can register for the seminar at this link.

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Atkinson Conway & Gagnon is pleased to announce that Bruce E. Gagnon and Christopher J. Slottee have contributed to a new publication, Law of Lawyers Liability was produced by the Professional Liability Committee of the American Bar Association, and edited by Merri A. Baldwin, Scott F. Bertschi, and Dylan C. Black. Mr. Gagnon and Mr. Slottee authored the section of the book addressing legal malpractice law in Alaska, including the unique considerations that arise as a result of Alaska’s attorney’s fee law, Alaska Civil Rule 82.

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Atkinson Conway & Gagnon is proud of Alaska for many reasons, including the State’s willingness to innovate and be on the cutting edge of important issues. From the use of duct tape in aircraft repairs to proactively banning the use of tasers on bears, Alaska is always pushing boundaries forward. Alaska’s Court of Appeals is no different, as demonstrated by its recent decision in Bates v. State of Alaska, where the Court of Appeals eschewed the dictionary definition of “dating” in favor of the crowd-sourced definition of the term in Wikipedia and the eponymous Bonny’s Dating Blog, by Bonny Albo.

The specific legal issue in Bates was whether the defendant’s prior acts of domestic violence towards his ex-girlfriend were admissible when he was tried for attempting to murder that same ex-girlfriend. Resolving that issue required the Court to determine if the term “dating” as used in Alaska’s domestic violence statute had a “meaningful definition.”

The Court of Appeals began by recognizing that Webster’s New World College Dictionary’s definition could not be used to define the term “dating,” as its definition of “dating” included meeting a business associate or relative if the associate or relative were a member of the opposite sex. Accordingly, the Court turned to a more modern source: Wikipedia, which defined “dating” as “a form of human courtship consisting of social activities done by two persons with the aim of each assessing the other’s suitability as a partner in an intimate relationship or as a spouse.” The Court also relied on the definition of dating contained in Bonny’s Dating Blog, which defined “dating” as “an activity two people share together with the intention of getting to know each other better on a potentially romantic level.”

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‘Tis the season, all right. The season for a whole banker’s box full of Alaska law-related proceedings and topics, any one of which would be worthy of deep analysis and serious discussion in a blog posting.

We’ve got the Alaska Supreme Court rejecting Joe Miller’s challenge to the State’s vote counting. Sad to say this likely won’t be last of the saga as Mr. Miller and crew will no doubt head back to Judge Beistline in federal court to make another run at constitutional claims. You know, Bush v. Gore stuff. (Anyone remember that case? According to the commentators, the U.S. Supreme Court seemingly does not.) In my view, Joe is earning his new title: Joe Miller, R – LaMancha.

FestivusPole.jpegThen there is the self-appointed head of the Alaska Peacemakers Militia going into court in Fairbanks. Although the guy was there on a weapons related charge, he sought to turn the tables by serving papers on the judge to charge the judge with a crime. The judge wisely set a trial date quickly, gaveled the proceedings to an end, and ducked out the back. A recent article in the Anchorage Press described the militia members’ off-kilter philosophy.

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In a recent decision, Mat-Su Regional Medical Center, LLC v. Burkhead, the Alaska Supreme Court held that a patient could not assign their personal injury claim for recovery of her medical expenses to her health-care provider.

In Burkhead, a patient received medical services at a hospital after an automobile accident. During her treatment, she signed two “Consent: Authorization, Assignment, and Acknowledgment” forms in which she ostensibly assigned to the hospital “all rights to or claims for payment against third parties” for the reasonable value of medical services rendered. The hospital subsequently attempted to intervene in the patient’s personal injury lawsuit and filed its own suit against the tortfeasor. In both cases, the hospital sought to recover the expenses it incurred in treating the patient from the tortfeasor directly and pursuant to the patient’s purported assignment.

The Alaska Supreme Court held that the patient’s purported assignment of her personal injury claim to the hospital was not valid. The court explained that

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Under Alaska Civil Rule 68, a litigant who beats their offer of judgment at trial can recover additional attorney’s fees and costs. On Friday, September 25, 2009, the Alaska Supreme Court ruled that an offer of judgment must be reasonable and good faith in both timing and amount before the penal provisions of Civil Rule 68 can be imposed. In Beal v. McGuire

, an offer of judgment for $1 was held to not be a bona fide attempt to settle the case because of its small amount and timing. The offer of judgment was served thirty days after the litigation was started.

The Alaska Supreme Court’s ruling will limit the utility of offers of judgment, and will cause greater uncertainty, and litigation, over the effectiveness of offers of judgment. For example, is an offer of judgment for defense costs a bona fide effort of settlement? When is an offer of judgment made in good faith, and how is that good faith to be determined? Those issues will now have to be decided by the courts, apparently on a case by case basis.

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The Alaska Supreme Court recently issued an opinion in Asher v. Alkan Shelter, LLC, which is a case involving an employee’s embezzlement of funds from his employer. The Alaska Supreme Court reversed the trial court’s ruling that the employee and his girlfriend were jointly and severally liable to the employer for the stolen funds, holding that AS 09.17.080, Alaska’s allocation of fault statute, required the court to allocate fault and liability between the employee and his girlfriend.

Significantly, the court ruled that the trial court should not simply determine the total damages suffered by the employer and allocate fault for those damages between the employee and his girlfriend. Instead, the court ruled that the trial court should only allocate fault on those damages it found had been caused by both the employee and the girlfriend. The effect of the court’s ruling is that if a defendant is responsible for a part of, but not all of, a plaintiff’s damages, trial courts and juries must separate the plaintiff’s damages into their divisible parts and make separate allocations of fault for each category of damages.

Asher, however, is perhaps more significant in that it effectively ruled that comparative fault will not apply to fraud claims where the plaintiff proves he justifiably relied on a defendant’s misrepresentations. In Asher, the court held that the justifiable reliance element of the plaintiff’s fraudulent misrepresentation claim precluded an allocation of fault to the plaintiff. The court reasoned that if the plaintiff was at fault for relying on the defendant’s misrepresentation, he would not have been justified in relying on those misrepresentations. A priori, if the plaintiff was justified in relying on those misrepresentations, he was not at fault and no fault could be allocated to him.

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In a recent decision, Lockhart v. Draper, the Alaska Supreme Court held that punitive damages could be awarded based on an equitable claim if (1) the plaintiff sought equitable relief independent from its claim for punitive damages, (2) the equitable relief was intended to make the plaintiff whole, (3) the plaintiff suffered “substantial damage” and (4) the requirements Alaska’s punitive damages statute, AS 09.17.020, were met. The Alaska Supreme Court affirmed the imposition of punitive damages in Lockhart because the plaintiff sought equitable relief independent of his punitive damages claim, voiding of a fraudulent conveyance, and the fraudulent transfer caused the plaintiff “substantial damage.”

Lockhart is significant in that it permits an award of punitive damages even where no compensatory damages are awarded or sought. While the Alaska Supreme Court recognized that a plaintiff would still have to establish that they suffered “substantial damage” before obtaining punitive damages, those damages do not have to be established to the degree of certainty that would permit an award of compensatory damages. Lockhart thus expands the availability of punitive damages into the realm of equitable claims, and continues the destruction of barrier between equitable claims and legal claims.

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In the interest of truth in advertising, I will no longer describe these posts as “weekly” summaries of Alaska Supreme Court opinions. Nonetheless, here is a selection of some relevant and interesting opinions issued by the Alaska Supreme Court over the past month.

May 8, 2009

In Cragle v. Gray, a granddaughter claimed that her grandmother orally promised to leave her house to her if she would care for her until she died. The grandmother’s will left the house to her daughter, and not the granddaughter. The court reversed the trial court’s denial of a motion for partial summary judgment, holding that the oral promise was a succession contract and unenforceable under AS 13.12.514.

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We’ve hit a “perfect storm” of sorts for guns and the law.

First, we had heavily armed attorney Wayne Anthony Ross rejected for the post of Alaska Attorney General. This one made you catch your breath for a second since it’s the first time in state history a cabinet-level nominee has gone down in flames. But at least WAR accepted his fate and retired from the scene with as much dignity as he could muster. I think it significant that WAR did not strap on a Peacemaker and invite Hollis French (Anchorage Democratic Senator and fellow lawyer) to meet him out on 4th Street at high noon. (“Go ahead, Hollis. Make my day.”)

Next, the 10th anniversary of the Columbine shootings came up. This one made you catch your breath for a minute because of the awful memory of the senseless attack. It was particularly disconcerting to find out that all the motivations we had been lead to believe lay behind the tragedy were bogus. According to the myth busters, the shooters were not actually bullied, did not set out for revenge against the jocks, and were never part of the Trench Coat Mafia. Instead, the reasons for the terrible killings were just that Eric Harris was a maniacal psychopath and Dylan Klebold was not very good at picking his friends. Not real comforting for the fans of an ordered society who like explanations for what went wrong. Even Oprah was discouraged by it.