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Cikan v. ARCO Alaska12/16/2005
No. 5967
Before: Bryner, Chief Justice, Matthews, Fabe, and Carpeneti, Justices. [Eastaugh, Justice, not participating.]
FABE, Justice, dissenting.
I. INTRODUCTION
Eight and a half years after injuring herself in a slip-and-fall accident outside the ARCO building in Anchorage, Christine Cikan sued ARCO for damages, claiming that her delayed action was timely because her injury had made her incompetent. The superior court dismissed Cikan's case on summary judgment, rejecting her claim of incompetency and concluding that her suit was barred by the statute of limitations. We reverse and remand, holding that Cikan raised a genuine issue of material fact as to her competency and that this dispute precluded summarily dismissing her action as time-barred. But because disputes involving compliance with the statute of limitations present preliminary issues of fact that must ordinarily be decided by the court before trial, we further hold that, on remand, the superior court must resolve the factual dispute over Cikan's competency by conducting a pretrial evidentiary hearing.
II. FACTS AND PROCEEDINGS
In December 1991 Christine Cikan slipped and fell on ice outside the ARCO building in Anchorage, hitting her head and suffering a concussion. Some time after the accident Cikan contacted attorney Joseph Kalamarides's office and spoke to Kalamarides by telephone about representing her in a workers' compensation claim related to her accident. Kalamarides declined the case but gave Cikan the names of two other attorneys who handled workers' compensation cases. Kalamarides also told Cikan that she might have a separate personal injury claim against ARCO and that she had two years from the date of the accident to file that claim. In November 1993 Kalamarides sent Cikan a letter confirming their conversation and repeating this information.
In December 1995, four years after her accident, Cikan filed a pro se complaint against Kalamarides, accusing him of malpractice for allowing her claim against ARCO to expire. Specifically, Cikan alleged that she had contacted Kalamarides's office about six months after her accident and had extensively discussed the case with him and his staff; that Kalamarides agreed to represent her in pursuing a claim against ARCO; but that he changed his mind at the last minute, claiming that he was too busy. By then, Cikan claimed, it was too late for her to find substitute counsel.
Kalamarides denied these allegations and moved for summary judgment, insisting that Cikan had spoken to him only once, primarily about her workers' compensation claim; that he had never agreed to represent her; and that he had referred her to another attorney before her time to file the claim expired. Cikan evidently did not oppose Kalamarides's motion for summary judgment. The superior court dismissed Cikan's claim in 1996.
In April 2000, more than eight years after her accident and three and a half years after her suit against Kalamarides was dismissed, Cikan sued ARCO for the injuries she sustained in her 1991 fall. Her complaint acknowledged that she had not filed the action within the specified two-year time limit, but alleged that this delay was "due to her injuries."
ARCO moved for summary judgment, asserting that Cikan's claim was barred by the two-year statute of limitations for personal injury actions. ARCO's motion noted that Cikan apparently intended to claim that the statutory limit had been tolled by mental incapacity, but ARCO insisted that she had failed to offer "a shred of evidence that she is or was incompetent by reason of mental illness or mental disability." And even
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