Alaska Applies Single Occurrence Clause

Friday, August !7, 2013

USAA v. Neary, 

Supreme Court Nos. S-14580/14600

The Backdrop

In a single occurrence, a child fired a single shot from a revolver belonging to his parents, killing a friend and seriously wounding another. The victims parents sued the child, his parents, and their insurance company.

The insurance policy provided a $300,000 limit for “Each Occurrence” of “Personal Liability.” The trial court multiplied the limits by the number of insured and ruled that the policy afforded $900,000 of coverage.   The trial court explained that the child and his parents were each entitled to a separate per-occurrence policy limit.

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Alaska Paves Way for More Employment Discrimination Claims

Yesterday the Alaska Supreme Court issued opinion

Employment Discrimination Claims
Hall Sign

No. 6809 S-14762 Kennedy v. Municipality of Anchorage.  The case concerned employment discrimination claims.  The opinion’s focus was discovery issues, jury instructions, evidence and argument on Mental Anguish Damages.  Employment discrimination victims are entitled to compensation for mental anguish, among other things.

Employment Discrimination Claims — Recovering Mental Anguish Damages

Mental anguish on the other hand is fairly ephemeral.  Just how much is a bad day worth? How do you quantify embarrassment?  What evidence may an employer force the employee to give them to test whether the employee: is faking a bad day; having a bad day from some other reason; or, has a preexisting bad day condition.

Employment Discrimination Claims — Discovery Scope

The general rule on discovery is:  you get to seek not just admissible evidence; but, also those things that will lead to admissible evidence.  Many states simply adopted the rule that when a person makes a mental anguish claim, the defendant gets to look at their mental health medical records.  Many of the decisions underlying the original rule arise from tort claims and not employment.  The torts of intentional or negligent infliction of emotional distress also provide for compensation.  For the claimant to recover the claimant must suffer severe emotional distress.  As a bright line rule courts adopted severe distress required medical treatment.  Statutory discrimination claims were created in part to lower the evidentiary standard for damage recovery.

Alaska Rejects Automatic Disclosure in Employment Discrimination Claims

Alaska rejected the automatic disclosure rule and paved the way for “garden variety” emotional distress claims in employment discrimination claims.  In Alaska, Employees can now assert embarrassment and bad day claims without automatically exposing their mental health medical records to their employer, juries and the public.  The employee can choose to limit exposing their medical records by carefully limiting their claim and the testimony that they give.  These non severe “garden variety” claims will be compensated in Alaska employment discrimination claims.  Alternatively, the employee can claim severe mental damages and waive your privilege to keep your medical records confidential.

To discuss which may be a better choice for you give us a call at 907-375-9277.

 

Clayton Walker, JD

Alaska Law Offices, Inc.

 

 

 

 

 

 

Chilkoot Charlies Headed to Trial on Alcohol Server Case

Today the Alaska Supreme Court in a three to two decision, sent Chilkoot Charlies to trial on an Alcohol Server wrongful death claim.  The Alaska statute only imposes liability on bars and servers of alcohol if they serve alcohol to someone who is visibly drunk.  The plaintiff did not offer testimony that the person was intoxicated when they Chilkoot Charlies served the alcohol. Instead, the plaintiff offered circumstantial evidence about the drinkers condition before and after leaving Chilkoot Charlies, and how much they had drunk at Chilkoot Charlies.  The Alaska Supreme Court stated circumstantial evidence was sufficient to allow the Plaintiff’s to present their case to a jury.

No. 6805 S-13899 Kalenka v. Jadon [other civil]

Clayton Walker, JD

Force used in Self Defense must be Proportional to the Threat

Santoyo v. State of Alaska

 

Force used in Self Defense must be Proportional to the Threat

On June 25, 2010, the defendant, Andrea Santoyo, and Jessica Fratis became involved in an argument. Apparently, during this argument, Santoyo flipped a cigarette at Fratis. (The cigarette did not hit her, but went by her head.) Fratis became angry and started hitting Santoyo. As the fight continued, Santoyo pulled out a knife and stabbed Fratis several times. Miguel Slats intervened in the fight and received a cut on his side that was five inches long, as well as a one-inch cut to his left arm.

Bystanders called 911, and Santoyo fled the area. But she was apprehended by the police a few blocks away. Fratis was taken to the hospital where she received emergency surgery. She was in the hospital for approximately six weeks recovering from her wounds. Slats was hospitalized for four or five days for his wounds.

The State charged Santoyo with one count of assault in the first degree for assaulting Jessica Fratis and one count of assault in the first degree for assaulting Miguel Slats. In a jury trial, Santoyo argued that she had acted in self-defense. The jury rejected Santoyo’s self-defense argument, convicting her of both counts of assault in the first degree.

At sentencing, Santoyo proposed the mitigating factor that, in committing the offense, she had “acted with serious provocation from the victim.” In order to establish a mitigating factor, the defendant must prove the mitigating factor to the court by clear and convincing evidence. In order to prove the serious-provocation mitigating factor, the defendant must show provocation “sufficient to excite an intense passion in a reasonable person in the defendant’s situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be … .”  In addition, the defendant’s response must be proportional to the provocation. Whether the response is proportional “involves a common sense balancing of the seriousness of the defendant’s crime against the seriousness of the provocation.”

In rejecting the mitigating factor, the superior court concluded that Santoyo’s conduct of inflicting serious physical injury with a knife was disproportionate to any provocation that she had received.  The Alaska Supreme Court affirmed.

 

Clayton Walker, JD

907-375-9226

If you don’t take care of details the first time — it may cost you more later.

Schaub v. Schaub

If you don’t take care of details the first time — it may cost you more later.

A couple divorced in 1992. The divorce decree did not divide the parties’ property. The man now receives military retirement benefits from over 22 years of service in the United States military. In October 2010 the woman filed a motion seeking a post­.  The man opposed, arguing that the woman’s claim was barred by (1) the statute of limitations; (2) laches; and (3) estoppel. The superior court concluded that the woman could properly bring her motion, that her motion was not barred by the statute of limitations, and that laches barred only the retrospective division of the man’s retirement benefits. The man appealed. The court affirmed the decision on the merits, although it remanded on other issues.  If you don’t get the Alaska court to issue a property decree when you divorce your spouse can return decades later and ask for more.

Statutes of Limitations in Alaska

Petro Alaska v. Davis Wright Tremaine

Corporation’s shareholders brought a derivative suit against a shareholder-director and the corporation’s former attorneys for fiduciary fraud, fraudulent conveyance, legal malpractice, and civil conspiracy. After an evidentiary hearing, the superior court ruled all the claims were time-barred. The Alaska Supreme Court affirmed the dismissal of all claims accept two claims against the law firms.  Thirty five pages of information on statutes of limitations, tolling, discovery rule, and the distinction between attorney fee awards as damages versus costs.

Statutes of Limitations in Alaska

Alaska License Revocation Hearings

CLAYTON WALKER, JD

JULY 20, 2013

 

Patrick

v.

Municipality of Anchorage,

Anchorage Transportation Commission

ALASKA SUPREME COURT

S-14360

No. 1464 – July 19, 2013

 

The Alaska Supreme Court issued another decision concerning Alaska administrative board process of revoking chauffeur’s licenses. The case doesn’t break new ground. However, it stands as a reminder

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NO ATV ACCESS on Butterfly Lake Trail

CLAYTON WALKER, JD

Original Opinion JULY 20, 2013

Rehearing October 10, 2011

 

SOP, INC.

v.

STATE OF ALASKA,

DEPARTMENT OF NATURAL RESOURCES

DIVISION OF PARKS AND OUTDOOR RECREATION

Supreme Court No. S-14541

OPINION No. 6800 – July 19, 2013

No. 6835 – October 11, 2013

The Alaska Supreme Court revoked Nancy Lakes area homeowner’s motorized ground based access to their properties along ATV trails by invalidating their special use permits as unlawfully issued easements.

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Equitable Division of Marital Assets in Alaska

By: Clayton Walker, JD
There are three basic steps in the equitable division of marital assets in Alaska: (1) identifying the property available for distribution, (2) determining property value, and (3) dividing property equitably.  See Doyle v. Doyle, 815 P.2d 366, 368 (Alaska 1991) (citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

The first step, identifying the property available for distribution involves determining which property is a marital asset or separate asset.  Yesterday, the Alaska Supreme Court revisited the first step of the process.  Continue reading “Equitable Division of Marital Assets in Alaska”