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Falconer v. Adams3/26/1999
No. 5096
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Ralph R. Beistline, Judge.
MATTHEWS, Chief Justice, with whom EASTAUGH, Justice, joins, Dissenting, in part.
Karla Taylor-Welch was driving a vehicle that rear-ended a stopped vehicle driven by Charlie Falconer; Falconer sued Taylor-Welch and a third driver, Donald Adams, who had allegedly forced Falconer to stop. A jury, finding Adams not negligent and Taylor-Welch and Falconer both partially negligent, awarded Falconer damages against Taylor-Welch. The trial court granted Falconer a judgment notwithstanding the verdict (JNOV) on the issue of his own negligence, denied him attorney's fees against Adams, and entered a final judgment reducing the net award of damages by the amount of medical payments Falconer had received from his own insurer. These rulings are now challenged. We conclude: (1) because Taylor-Welch failed to prove that Falconer received unsubrogated collateral-source benefits, the jury verdict should not have been reduced; (2) Falconer failed to establish that he was entitled to prevailing-party fees against Adams; and (3) Taylor-Welch's cursory Discussion of her challenge to the JNOV amounts to a waiver of the point.
I. FACTS AND PROCEEDINGS
A. The Collision, the Trial, and the Verdict
On February 3, 1992, Falconer was driving north on Cushman Street in Fairbanks. He began to turn left onto Seventh Avenue, but stopped abruptly. Taylor-Welch was following Falconer; she applied her brakes but slid on the icy pavement and collided with Falconer's car. Falconer claimed that he was forced to stop because he saw Adams's car on Seventh Avenue facing him in the wrong lane of traffic. Falconer sued Taylor-Welch and Adams for personal injuries sustained in the collision, seeking, among other things, reimbursement of $8038.24 in medical expenses.
At trial, Taylor-Welch confirmed Falconer's version of events. She testified that she saw Falconer signal prior to turning; when Falconer stopped, she hit her brakes but her car slid into Falconer's. When she got out of her car and approached Falconer, she saw that he had been unable to complete his turn because Adams's car was in the wrong lane and was blocking him.
Adams denied being in the wrong lane of traffic. He testified that he was stopped in the middle lane -- the designated left-turn lane -- on Seventh Avenue when the collision occurred. He did not actually see the collision, but he heard the sound of impact, looked up, and saw the stopped cars.
Officer Haydon Bartholomew of the Fairbanks Police Department investigated the collision. At trial, Bartholomew testified from his original investigation report; he had no independent recollection of the incident. Bartholomew testified that neither Taylor-Welch nor Falconer told him that Adams had been in the wrong lane, but he confirmed that Falconer reported that "there was an obstacle or a vehicle, something in front of him, that caused him to brake -- apply his brake." According to Bartholomew, this was essentially what Taylor-Welch and Adams reported, also. Bartholomew's understanding was that Falconer had stopped to avoid something on Seventh Avenue. Bartholomew knew of no witnesses apart from Falconer, Taylor-Welch, and Adams.
The jury returned a verdict finding Taylor-Welch forty percent negligent, Falconer sixty percent comparatively negligent, and Adams not negligent. The jury further determined that Falconer's total damages were limited to $5054 in past medical expenses and $510 in past non-economic loss (pain and suffering).
B. The JNOV on Compara
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