ALASKA Primerus

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Compiled and Edited by:

John R. Brydon, Robert W. Farrell,
and Thomas J. Moses
 Brydon Hugo & Parker
135 Main Street
20th Floor
San Francisco, California 94105
Phone: (415) 808-0300
Fax: (415) 808-0333
                       Table of Contents

                         TORT REFORM

      A Compendium of Tort Reform Enactments in All 50 States

1.   Introduction – History of Tort Reform in ALASKA
2.   Joint and Several Liability
3.   Damage Caps
4.   Punitive Damages
5.   Medical Malpractice Reform
6.   Products Liability Reform
7.   Attorneys Fees
8.   Practice Pointers
9.   Special Issues
    1.      Introduction
        In 1986, the Alaska Legislature passed the “Tort Reform Act,” modeled after the
Uniform Comparative Fault Act, in an effort to “create a more equitable distribution of
the cost and risk of injury and increase the availability and affordability of insurance.”
As noted below, the primary change made by this legislation was a broadening of the
definition of “comparative negligence” in negligence cases to include other types of
comparative fault including a plaintiff’s ordinary negligence.
       The 1986 Tort Reform Act remains the most significant reform measures taken by
the Alaska Legislature in the last 25 years.

    2.      Joint and Several Liability
      The 1986 Tort Reform Act modified the prior Alaskan formulation of
“comparative fault” by adopting the following rule:
         In an action based on fault seeking to recover damages for injury or death to a
         person or harm to property, contributory fault chargeable to the claiming
         diminishes proportionally the amount awarded as compensatory damages for the
         injury attributable to the claimant’s contributory fault, but does not bar recovery.
         (Alaska Stat. § 09.17.060.)
         Up until 1975, Alaskan courts had followed a “contributory negligence” doctrine
which completely barred a plaintiff’s recovery if he was in any way at fault for his
injuries. In that year, the Alaskan Supreme Court adopted a “pure” comparative fault
system, which reduced a plaintiff’s recovery in proportion to the plaintiff’s percentage of
fault. There was some uncertainty in the Alaskan courts as to whether this rule applied
to all negligence-based cases, such as products liability actions. However, the Tort
Reform Act, and subsequent case law, clarified that the Act’s “comparative fault”
formulation applied to all cases in which fault must be evaluated, including products
liability cases.
        With regard to joint and several liability, the Tort Reform Act effectively
abolishes “joint and several liability” in favor of pure comparative fault. In actions
involving fault of more than one person, including third-party defendants and persons
who have settled or otherwise been released, the court shall instruct the jury to make
special findings (or, in a court trial, make findings of fact) indicating (1) the amount of
damages each plaintiff would be entitled to recover if contributory fault is disregarded,
and (2) the percentage of the total fault that is allocated to each plaintiff, defendant, third-
party defendant, person who has been released from liability, or other person responsible
for the damages at issue. Alaska Stat. § 09.17.080(a).
        In determining the percentages of fault, the judge or jury shall consider both the
nature of the conduct of each person at fault, and the extent of the causal relation between
the conduct and the damages claimed. Alaska Stat. § 09.17.080(b). Once percentages of
fault are determined, the court shall determine the award of damages to each claimant and
enter judgment against each party liabile on the basis of several liability in accordance
with that party’s percentage of fault. Alaska Stat. §§ 09.17.080(c), 09.17.080(d)
   3.      Damage Caps
        The 1986 Tort Reform Act placed caps on a plaintiff’s recovery of noneconomic
damages (defined as “pain, suffering, inconvenience, physical impairment, disfigurement,
loss of enjoyment of life, loss of consortium, and other nonpecuniary damage”) in all
actions for personal injury or wrongful death. Alaska Stat. § 09.17.010(a). Except in
cases of “severe permanent physical impairment” or “severe disfigurement,” the
allowable noneconomic damages may not exceed $400,000, or the injured person’s life
expectancy in years multiplied by $8,000, whichever is greater. Alaska Stat. §
        Where there is “severe permanent physical impairment” or “severe
disfigurement,” the allowable noneconomic damages a jury can award may not exceed
$1,000,000, or the person’s life expectancy in years multiplied by $25,000, whichever is
   4.      Punitive Damages
       The 1986 Tort Reform Act also placed caps on a plaintiff’s recovery of punitive
damages. First, in order for a jury to impose punitive damages, there must be “clear and
convincing evidence” that a defendant’s conduct “was outrageous, including acts done
with malice or bad motives; or…evidenced reckless indifference to the interest of another
person.” Alaska Stat. § 09.17.020(b).
       Next, the Act requires a separate proceeding be held to determine the amount of
punitive damages to be awarded, during which proceedings the jury is allowed to
consider several factors, including evaluating the likelihood that serious harm would arise
from the defendant’s conduct at the time it occurred, the degree of the defendant’s
awareness of this potential for harm, the amount of financial gain the defendant gained or
hoped to gain by its’ conduct, the duration of the conduct and any intentional
concealment of it, the attitude and conduct of the defendant upon discovery of the
conduct, the financial condition of the defendant, and the “total deterrence” that would be
imposed on the defendant, including an evaluation of the compensatory and punitive
damages awards which have been or might be awarded to similarly situated persons, and
the severity of criminal penalties to which the defendant has been or may be subjected.
Alaska Stat. § 09.17.020(c).
         After completion of these separate proceedings, the jury shall determine the
amount of punitive damages to be awarded. In most cases, the punitive damages award
may not exceed three times the amount of compensatory damages awarded to the
plaintiff, or $500,000, whichever is greater. Alaska Stat. § 09.17.020(f). But, in cases in
which the jury has determined that the defendant’s conduct “was motivated by financial
gain, and the adverse consequences of the conduct were actually known by the
defendant,” the jury may award an amount of punitive damages not to exceed the greatest
of: (1) four times the plaintiff’s total compensatory damages; (2) four times the
defendant’s financial gain received as a result of the conduct; or (3) the sum of
$7,000,000. Alaska Stat. § 09.17.020(g). And, in actions for certain unlawful
employment practices, the amount of punitive damages may not exceed $200,000 if the
defendant employer has less than 100 employees in the state, $300,000 if the employer
has between 100 and 200 employees, $400,000 if the employer has between 200 and 500
employees, and $500,000 if the employer has more than 500 or more employees. Alaska
Stat. § 09.17.020(h).
       If a person receives an award of punitive damages, 50% of the award will be
diverted for deposit into the general fund of the state. Alaska Stat. § 09.17.020(j).
         Finally, in a section added in 2003, in cases where punitive damages are sought to
be imposed on an employer, based on vicarious liability, such damages may not be
awarded unless the employer authorized the act in question before it was done, or ratified
it afterward, or if the employer employed an unfit employee, or if the employee was
employed in a managerial capacity and was acting within the scope of employment.
Alaska Stat. § 09.17.020(k).
       The statutory caps on noneconomic and punitive damages have survived
challenges based on claims of violation of both state and federal constitutional
provisions. (Evans v. State (2002) 56 P.3d 1046.)

   5.      Medical Malpractice Reform
        The Alaska Legislature has also enacted a comprehensive series of statutes with
regard to medical malpractice issues. Alaska Stat. §§ 09.55.530-09.55.560.
        Regarding burdens of proof, the claimant in a malpractice action must prove, by a
preponderance of the evidence, all of the following: (1) the degree of knowledge or skill
possessed or the degree of care ordinarily exercised under the circumstances, at the time
of the act complained of, by health care providers in the field or specialty in which the
defendant was practicing; (2) that the defendant either lacked this knowledge or skill or
failed to exercise the degree of care required; and (3) that as a proximate result of this
lack of knowledge or skill or the failure to exercise the appropriate degree of care, the
plaintiff suffered injuries that would not otherwise have occurred. Alaska Stat. §
09.55.540(a). There is no presumption of negligence on the part of the health care
provider in malpractice actions. Alaska Stat. § 09.55.540(b).
        Damages are to be awarded in accordance with common law principles, and the
fact finder is required to render any award for damages by category of loss. Alaska Stat.
§ 09.55.548(a). However, a plaintiff may only recover damages from the defendant that
exceed amounts received by the claimant as compensation for the injuries from collateral
sources, evidence of which is admissible after the fact finder has rendered an award.
Alaska Stat. § 09.55.548(b).
       Noneconomic damages for personal injury or death based on the provision of
services by a health care provider are limited by statute. Alaska Stat. § 09.55.549.
Although damages may include both economic and noneconomic damages, noneconomic
damage claims are limited to compensation for pain, suffering, inconvenience, physical
impairment, disfigurement, loss of enjoyment of life, loss of consortium, and other
nonpecuniary damages, but may not include “hedonic damages.” Alaska Stat. §
       In suits against health care providers that initially accrued after September 5,
2005, the jury or court’s award of noneconomic damages may not exceed $250,000,
regardless of the number of health care providers sued, or the number of separate claims
or causes of action. Alaska Stat. § 09.55.549(d). But, in wrongful death cases, or cases
of severe permanent physical impairment (i.e., more than 70% disabling), this cap is
increased to $400,000. Alaska Stat. § 09.55.549(e). The limitations on noneconomic
damages do not apply if the damages resulted from an act or omission that constitutes
reckless or intentional misconduct. Alaska Stat. § 09.55.549(f).
         Advance payments made by a defendant health care provider or their insurer is
not admissible as evidence or may not be construed as any admission of liability, but any
final award in favor of the plaintiff is to be reduced to the extent of the advance payment.
Alaska Stat. § 09.55.546.
        Alaska allows a patient and a health care provider to enter into an agreement to
allow submission of disputes, controversies, or issues arising out of care or treatment by
the health care provider to voluntary arbitration. Alaska Stat. § 09.55.535(a). If such an
agreement is entered into, upon the filing of a malpractice claim subject to the agreement
to arbitrate, the claim shall be submitted to an arbitration board, with one arbitrator
designated by the claimant, one by the health care provider, and the third arbitrator
selected by agreement between the first two arbitrators. Alaska Stat. § 09.55.535(f).
   6.      Products Liability Reform
         Under the Tort Reform Act, actions for strict tort liability, including products
liability claims such as breach of warranty, unreasonable assumption of the risk, and
misuse of a product, are expressly included in the definition of “fault” for purposes of
application of the statutory comparative fault provisions, as well as for application of the
noneconomic and punitive damage limitations. Alaska Stat. § 09.17.900.
   7.      Special Issues
           a. Collateral Source
           The 1986 Tort Reform Act modified the Alaska common-law “collateral
           source” rule in non-medical malpractice cases by allowing the court to reduce
           a plaintiff’s jury award to reflect certain unsubrogated collateral source
           payments. The offset may not include benefits that cannot be offset pursuant
           to federal law, life insurance proceeds, or gratuitous benefits provided to the
           plaintiff. Alaska Stat. § 09.17.070.