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Law Offices of Steven D. Smith v. Borg-Warner Security Corp.12/23/1999
mith's alleged negligence, would not have barred him from suing Borg-Warner on his own behalf at the same time as he filed the estate's Rule 60(b) motion.
Smith's only plausible argument is that he was collaterally estopped from relitigating his negligence in comparison to Borg-Warner's alleged fraud. However, it is unlikely that his negligence would have prevented him from recovering from Borg-Warner for fraud. "The clearly prevailing view is that comparative negligence principles are not applicable to intentional torts. . . . Before comparative negligence was widely adopted, it was black-letter law that contributory negligence principles were not a defense to an intentional tort action. And under comparative negligence, this . . . carried over and became the general rule[.]" In fact, this court noted in Palmer II that a plaintiff's "mere negligence" cannot bar its attempt to equitably estop a fraudulent defendant because "such a standard would be 'clearly inconsistent with the general rule that mere negligence of the plaintiff is not a defense to an intentional tort.'"
Finally, we note that it seems very dubious as a matter of policy to let litigants who erroneously believe their suits are barred by collateral estoppel to argue that the statute of limitations is tolled until they believe or reasonably should believe that the estoppel has been removed. Borg-Warner is right that Shaw v. State, Department of Administration, which Smith cites to support his proposition, is not a collateral-estoppel case.
We conclude that a party arguing that the statute of limitations should be tolled because of collateral estoppel must show that the estoppel bar made suit futile by clear and convincing evidence. In Smith's case, the likelihood of Borg-Warner's success in using collateral estoppel to bar his claim was far too remote to excuse Smith from attempting to file suit.
C. Should the Two- or Six-Year Statute of Limitations Govern Smith's Claims for Economic Losses Caused by Fraud and Intentional Interference with Contract?
At all times pertinent to this appeal, Alaska had a six-year statute of limitations, AS 09.10.050, covering actions "upon a contract or liability, express or implied" or "for waste or trespass upon real property" or "for taking, detaining, or injuring personal property." It also had a two-year statute of limitations, AS 09.10.070, "for any injury to the person or rights of another not arising on contract and not specifically provided otherwise."
Smith argues that the superior court should have applied the six-year statute to his claims for economic loss. He bases this argument on the text of AS 09.10.070(a)(1) and AS 09.10.050(3), and on two cases, Lee Houston and Associates v. Racine and Breck v. Moore.
Smith argues that the loss caused by the cancellation of his contingent-fee contract is the loss of a right arising from contract and is therefore excluded from AS 09.10.070(a)(1) which refers to an action for any injury to the rights of another "not arising on contract." Further, he argues that the loss of his contingent-fee contract is a personal property right and is thus specifically covered by AS 09.10.050(3) which refers to an action "injuring personal property."
Smith's argument concerning the phrase "not arising from contract" contained in AS 09.10.070 is linguistically possible. His contention is that the phrase modifies "rights of another." But we believe that the phrase modifies "an action" for injury to rights of another rather than "rights of another." We reach this conclusion for two reasons.
First, distinguishing economic losses arising from the loss of existing contra
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