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Cook v. Rowland6/21/2002
No. 5586
CARPENETI, Justice, with whom EASTAUGH, Justice, joins, concurring and dissenting.
BRYNER, Justice, concurring.
FABE, Chief Justice, with whom MATTHEWS, Justice, joins, concurring in part and dissenting in part.
I. INTRODUCTION
Following the entry of a default judgment against him in excess of $7,000,000, Kim Michael Cook filed a peremptory challenge of the assigned judge and a motion to set aside the default judgment. The superior court rejected the peremptory challenge as untimely and refused to set aside the default judgment. Because three members of the court - Chief Justice Fabe, Justices Matthews and Bryner - have concluded that Cook has shown both excusable neglect and a potentially meritorious defense as to damages, we set aside the default judgment and remand for a redetermination of damages. Because three members of the court - Justices Eastaugh, Bryner, and Carpeneti - have concluded that Cook's peremptory challenge should be given effect, proceedings concerning the determination of damages on remand should be conducted before a different judge.
II. FACTS AND PROCEEDINGS
In the early morning hours of May 15, 1999, Palmer Police Officer James Rowland approached a parked car in which Kim Michael Cook was sleeping. In the series of events that followed, which are not the immediate concern of this case, both men fired gunshots and both were hit. Officer Rowland died as a result of his injuries.
Cook was arrested and charged with first-degree murder in connection with Rowland's death. As a result of his own injuries, Cook was hospitalized and underwent two surgeries before being transferred to a maximum security cell at Cook Inlet Pretrial Facility.
On May 27, 1999, Hallie Rowland, Officer Rowland's widow and the personal representative of his estate, filed suit against Cook for wrongful death. The complaint sought compensatory and punitive damages. Cook was served with the complaint when he appeared at a criminal arraignment on May 28, but he failed to answer the complaint within twenty days as required by law. As a result, Hallie Rowland applied to the clerk for entry of Cook's default on June 18.
Three days after the default was entered, Rowland requested a hearing to establish damages for the default judgment. She later withdrew that request and proposed that the court enter a default judgment without a hearing. She provided the court with affidavits supporting her claims for damages. One affidavit, from an economist, calculated Rowland's lost lifetime earnings at $1,353,975.00. The other affidavit, from Rowland, claimed the estate's entitlement to $400,000 for non-economic damages, the maximum allowable award. Rowland calculated her total compensatory damages at $1,753,975, and proposed an award of punitive damages of three times that amount, or $5,261,925.
Superior Court Judge Beverly W. Cutler entered the default judgment against Cook on June 28, 1999, accepting in full Rowland's calculation of damages for a total judgment of $7,015,900.
On July 21 Cook responded to the civil suit for the first time, by moving to set aside the entry of default and the default judgment. He also then filed a peremptory challenge to the assigned judge pursuant to Civil Rule 42(c).
Judge Cutler denied Cook's peremptory challenge as untimely, and scheduled a hearing for two weeks later on Cook's motion to set aside the default judgment in order to determine "whether there is an evidentiary basis for defendant's claims." Cook sent a handwritten response to the court and Rowland's attorney stating that he would not be able to arr
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