 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Clement v. Fulton4/8/2005
arguments Clement made below. The issue as the parties presented it below was whether to deviate from Horsford, not whether to follow Horsford. This had the effect of putting the burden on Clement to affirmatively persuade the court that Mary would have lived only about one year, i.e., would not have lived much longer.
Consequently, Clement affirmatively contended below that the evidence established that Mary's life expectancy was only about one year, not that there was no evidence she would have had a normal life expectancy. She cited Dr. Kiraly's report in her pre-hearing written opposition to Michael's proposed allocation and affirmatively contended that it established that Mary's life expectancy was only about one year. And at the outset of the hearing, her lawyer referred again to Dr. Kiraly's report to support her affirmative contention, but did not argue that there was no evidence of normal life expectancy, or that, absent any such evidence, Michael should lose. Clement then undertook to show why the Horsford formula should not be followed, and began calling witnesses who testified in support of her "equitable argument" - that Michael should take nothing because Michael would not support the children and had abused or harmed them, that Mary and he had separated, and that Mary planned to divorce him. All the hearing testimony concerned these allegations; none of it concerned Mary's (or Michael's) life expectancy. During the final arguments below, she asserted that she had offered evidence establishing that there was a "strong probability" Mary would have lived only about a year. After the court ruled against her, she sought reconsideration on the ground the court erred in discounting the opinion of Dr. Kiraly. She did not argue that Michael had failed to discharge any burden of persuasion with respect to life expectancy or that there was no evidence that Mary would have had a normal life expectancy (or, more relevantly, that Mary would have had a long life or outlived Michael). At no time did Clement assert that Michael failed to establish either that his life expectancy was 30.5 years or that a person Mary's age would outlive him. She never contended that Michael's proposed allocation was deficient because he failed to offer evidence that a person with Mary's underlying medical condition would live less than the 30.5 years assumed by Michael's damages expert.
Thus, Clement did not affirmatively argue below that there was no evidence bringing Mary within Horsford, but instead affirmatively argued only that Dr. Kiraly's report should have convinced the superior court to depart from Horsford. As the parties presented it, the allocation dispute therefore turned on whether the superior court was persuaded by the two reports. It was not. As we concluded above, that was a permissible choice.
Moreover, Clement's argument below was not nuanced; it was effectively all or nothing, because her focus was on preventing Michael from receiving any part of the settlement. Clement used her contention that Mary would have lived only one year to set the stage for her argument that the superior court should altogether "abandon" Horsford, and, applying equitable principles, award everything to the children. Clement did not contend below that Mary might have had a somewhat shorter-than-normal life-span. That position would have been inconsistent with avoiding Horsford and preventing Michael from recovering anything. It was critical to her approach that the court find that Mary would have lived only about one year.
Consistent with the way the dispute was argued, the superior court did not affirmatively find that Mary would have had a normal life expectancy; it only found that Clement had
Page 1 2 3 4 5 6 7 8 9 Alaska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|