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Date: 08-28-2007

Case Style: Ronald J. Pagenkopf v. Chatham Electric, Inc., Hugh Dilbeck, individually and d/b/a Bear Body Works

Case Number: S-11580

Judge: Bryner

Court: Supreme Court of Alaska on appeal from the Superior Court First Judicial District, Juneau,

Plaintiff's Attorney:

Greg Lessmeier and Michael L. Lessmeier, Lessmeier & Winters, Juneau, for Appellant/Cross-Appellee/Cross-Appellant Pagenkopf.

Defendant's Attorney:

R. N. Sutliff, Anchorage, for Appellee/Cross- Appellant/Cross-Appellee Dilbeck. Anthony M. Sholty, Faulkner Banfield, P.C., Juneau, for Appellee/Cross- Appellant/Cross-Appellee Chatham Electric, Inc.

Description:

Nick Goddard, an employee of Chatham Electric, Inc., opened an overhead garage door while on a job at Hugh Dilbeck's auto body shop in Juneau. The opening door knocked Ronald Pagenkopf off a ladder, severely injuring him. Pagenkopf sued Goddard and Chatham Electric (collectively "Chatham"). Chatham filed a third-party complaint against Dilbeck. After Pagenkopf rejected a pretrial offer of judgment from Chatham, a jury awarded Pagenkopf damages against Chatham and Dilbeck. The total award exceeded Chatham's pretrial offer, but Chatham's share of the damages fell well below the offer. The superior court awarded attorney's fees to Chatham under Alaska Civil Rule 68 because Pagenkopf won less from Chatham at trial than he would have received under Chatham's pretrial offer. All parties appeal. Pagenkopf asserts that Chatham's offer of judgment was too uncertain to support an award under Rule 68; he also contests the starting date for prejudgment interest to be paid by Dilbeck. We hold that the pretrial offer created apportionment difficulties that made it an invalid Rule 68 offer and that Dilbeck should be required to pay prejudgment interest from the date he first knew that a claim against him was likely to be filed. Chatham challenges the accuracy of several monetary adjustments incorporated in the final judgment. We find these points moot and decline to decide them because our disposition of other points will require a new judgment to be entered on remand. Dilbeck contends that a jury instruction improperly required the jury to apply negligence per se to decide if he was at fault. We conclude that the challenged instruction did not apply negligence per se or otherwise prejudice Dilbeck.

II. FACTS AND PROCEEDINGS

On February 24, 2001, Nick Goddard, an employee of Chatham Electric, Inc., was working at the request of Hugh Dilbeck on a control panel for a paint booth at the Bear Body Shop, an auto repair shop owned and operated by Dilbeck in Juneau. That same day Ronald Pagenkopf, a friend of Dilbeck, was helping Dilbeck install overhead fluorescent lights in the work area of the shop.

While Pagenkopf was standing on a ladder working on the lights, Goddard opened the overhead door to enter the garage. The garage door knocked Pagenkopf off his ladder, causing severe injuries. Pagenkopf filed suit against Chatham and Goddard (collectively "Chatham"). Chatham then filed a third-party suit against Dilbeck for equitable apportionment under Alaska Civil Rule 14(c) and AS 09.17.080.

In March 2003 Chatham offered judgment to Pagenkopf "in the total amount of $525,000 in complete satisfaction of plaintiff's claims against [Chatham] in this matter."1 Although Chatham's offer did not mention Chatham's third-party complaint against Dilbeck, Dilbeck's insurance carrier had evidently agreed to contribute $150,000 toward the amount Chatham offered. After contacting Dilbeck and learning of his undisclosed participation in Chatham's offer, Pagenkopf passed up the offer and the case proceeded to trial.

The jury found that Pagenkopf's damages totaled $698,800 and that Pagenkopf, Chatham, and Dilbeck all shared in the fault; the verdict allocated twentytwo percent of the fault to Pagenkopf, twenty-eight percent to Chatham, and fifty percent to Dilbeck. Chatham and Dilbeck's combined seventy-eight percent share of the damages gave Pagenkopf a net verdict for damages totaling $545,064 - $195,664 representing Chatham's twenty-eight percent proportionate share of the fault and $349,400 representing Dilbeck's fifty-percent share.

Based on this verdict, Chatham and Pagenkopf filed several prejudgment motions. Chatham moved for partial attorney's fees and costs under Civil Rule 68, arguing that it was the prevailing party under Rule 68 because its pretrial offer substantially exceeded the amount of the judgment Pagenkopf recovered against Chatham at trial. After denying Pagenkopf's request to compare the pretrial offer to the entire amount the jury awarded against Chatham and Dilbeck - not just Chatham's proportionate share of the award - the court declared Chatham to be the prevailing party and directed Pagenkopf to pay Chatham's post-offer costs and attorney's fees, an amount totaling more than $50,000.2

Chatham also moved under AS 09.17.070 to reduce Pagenkopf's judgment by amounts that Pagenkopf had received from his health insurance policy. The superior court denied this motion, ruling that applying AS 09.17.070 would not actually reduce Pagenkopf's judgment because his attorney's fees and payments for the insurance exceeded the amount of the insurance benefits he received.

Pagenkopf separately moved for an award of prejudgment interest against Dilbeck, contending that the interest should be calculated from the date Dilbeck and his insurer first received notice of a potential claim - several days after the February 24, 2001 accident. The trial court granted Pagenkopf's motion for pretrial interest but ordered the interest to run from the date Dilbeck received service of Chatham's thirdparty complaint - April 2, 2002.

Pagenkopf, Dilbeck, and Chatham now appeal, challenging various aspects of the final judgment.

Outcome: For the foregoing reasons we REVERSE the award of Rule 68 attorney’s fees to Chatham and also REVERSE the order establishing that prejudgment interest on Dilbeck’s claim begins to run on the date Dilbeck received service of Chatham’s thirdparty complaint. We REMAND for entry of a modified judgment conforming to our ruling on these points. We AFFIRM the superior court’s judgment in all other respects.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None



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