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                THE SUPREME COURT OF THE STATE OF ALASKA

EKATERINA V. POUZANOVA,                             )
                                                    )    Supreme Court No. S-14442
                       Petitioner,                  )
                                                    )    Superior Court No. 3AN-10-08545 CI
       v.                                           )    District Court No. 3AN-08-11802 CI
                                                    )
KUUIPO T. MORTON,                                   )    OPINION
                                                    )
                       Respondent.                  )    No. 6915 - June 20, 2014
                                                    )

               Petition for Hearing from the Superior Court of the State of
               Alaska, Third Judicial District, Kodiak, Steve W. Cole,
               Judge, on appeal from the District Court for the State of
               Alaska, Anchorage, John R. Lohff, Judge.

               Appearances: David S. Carter, Hughes, Gorski, Seedorf,
               Odsen & Tervooren, LLC, Anchorage, for Petitioner. Allison
               Mendel and Laurence Blakely, Mendel & Associates,
               Anchorage, for Respondent.

               Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen,
               Justices. [Carpeneti, Justice, not participating.]

               MAASSEN, Justice.

I.     INTRODUCTION
               This case, arising out of a traffic accident, comes to us on a petition for
hearing from a decision of the superior court, acting as the intermediate appellate court
following a trial in district court. The superior court reversed the district court judgment
and remanded the case for a new trial. We agree with the superior court that a remand
is in order because certain evidence of domestic violence should have been excluded
under Alaska Evidence Rule 403. On two other issues, however, we reverse the superior
court’s decision and hold that the district court was correct: it correctly dismissed the
plaintiff’s punitive damages claim and correctly declined to require that the plaintiff’s
husband be joined as a third-party defendant.
II.   FACTS AND PROCEEDINGS
                On May 26, 2008, Ekaterina Pouzanova drove past a stop sign and into an
intersection in Anchorage and was broad-sided by a vehicle driven by Kuuipo Morton.
Morton went to the emergency room and was diagnosed with lower back pain and a
possible compression fracture. She continued to complain of pain in her back and neck
in the months that followed, and she received some additional treatment for these
complaints.
                Pouzanova did not contest liability for the accident, but she did dispute the
extent of Morton’s injuries. Morton sued in district court for non-economic and punitive
damages. She initially included claims for lost earnings and medical expenses as well
but dropped them before trial. The district court dismissed the punitive damages claim
on summary judgment, finding that the evidence could not support a finding of
recklessness.
                During jury selection, Morton challenged three potential jurors for cause.
The court declined to excuse the jurors, and Morton used three of her four peremptory
challenges to replace them. During trial the court allowed testimony about domestic
violence in Morton’s marriage as relevant to her claim for loss of enjoyment of life,
including evidence of an incident in which she allegedly threatened her husband with a
hammer. The jury returned a verdict of $5,000 for past non-economic loss and zero for
future non-economic loss. Because Morton had earlier rejected an offer of judgment


                                             -2-                                       6915

under Civil Rule 68, the amount of attorney’s fees and costs assessed against her more
than offset the amount of the verdict in her favor.
              Morton appealed to the superior court, which vacated the judgment and
remanded the case for a new trial. The superior court found reversible error in the
district court’s grant of summary judgment on the punitive damages claim; its refusal to
grant the challenges for cause during jury selection; its failure to require the joinder of
Morton’s husband as a third-party defendant for purposes of allocation of fault; and its
admission of evidence of the domestic violence incident involving the hammer.
              Pouzanova filed a petition for hearing, which we granted.
III.     STANDARDS OF REVIEW
              In an appeal from a judgment of a superior court acting as an intermediate
court of appeal, we independently review the judgment of the district court.1
              “We review summary judgment decisions de novo, affirming if there are
no genuine issues of material fact and the moving party is entitled to judgment as a
matter of law.”2 We draw all factual inferences in favor of the non-moving party.3
              Although we ordinarily review the decision whether someone is an
indispensable party for an abuse of discretion,4 the decision in this case depends upon the



         1
            Smith v. Kofstad, 206 P.3d 441, 444 (Alaska 2009) (quoting Hallam v.
Holland Am. Line, Inc., 27 P.3d 751, 753 (Alaska 2001)).
         2
            Brannon v. Cont’l Cas. Co., 137 P.3d 280, 284 (Alaska 2006) (citing
Makarka v. Great Am. Ins. Co., 14 P.3d 964, 966 (Alaska 2000)).
         3
              Id. (citing Morgan v. Fortis Benefits Ins. Co., 107 P.3d 267, 269 (Alaska
2005)).
         4
              Tlingit-Haida Reg’l Elec. Auth. v. State, 15 P.3d 754, 768 n.48 (Alaska
2001).

                                           -3-                                       6915

interpretation of a statute, which we decide de novo.5 A superior court’s decision
whether to admit evidence under Evidence Rule 403 requires it to balance the probative
value of the evidence against its unfair prejudice; we review this balancing for abuse of
discretion.6
IV.	   DISCUSSION
       A.	     The District Court Properly Dismissed The Punitive Damages Claim
               On Summary Judgment.
               Before trial, Pouzanova moved for summary judgment on the issue of
punitive damages. The district court granted the motion on grounds that there was
insufficient evidence that Pouzanova had acted with recklessness rather than mere
negligence. Awards of punitive damages require proof by “clear and convincing
evidence” that the defendant’s conduct “was outrageous, including acts done with malice
or bad motives,” or that it “evidenced reckless indifference to the interest of another
person.”7 The superior court reversed the district court’s dismissal of the claim, holding
that the sworn statements of two witnesses, while “very minimal” evidence, were enough
to create an issue of fact for the jury as to whether Pouzanova saw the stop sign and
intended to run it. We do not view these statements as sufficient to distinguish this case
from Hayes v. Xerox Corp.,8 in which we affirmed a grant of summary judgment on a
punitive damages claim. We conclude, therefore, that the district court correctly
dismissed the claim.


       5
            ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d
114, 122 (Alaska 2014).
       6
               Brandner v. Hudson, 171 P.3d 83, 87 (Alaska 2007).
       7
               AS 09.17.020(b).
       8
               718 P.2d 929, 934-36 (Alaska 1986).

                                           -4-	                                     6915

             One of the statements was provided by Pouzanova’s passenger, who said,
“I don’t know why or what happened, but she blew right through the stop sign and then
we got T-boned. . . . Oh, it was straight through . . . like there wasn’t even a stop sign
there or an intersection . . . .” The other statement was from a driver who was
approaching the intersection behind Pouzanova. He said, “It looked to me like maybe
she was trying to jump across to get across the street before the other car came or maybe
she didn’t stop, I’m not sure, like I said, as I pulled up . . . she was already going or
trying to go across.”
             Morton also contends that two statements made by Pouzanova herself
support a finding of recklessness. First, Pouzanova told her insurance company several
days after the accident, “There was a stop sign, yeah. The thing is I don’t remember
what exactly happened, but witnesses say that [indiscernible] that I did stop, but I —
honestly I don’t remember.” At her later deposition, Pouzanova denied that she had ever
made a statement to her insurance company about the accident; she also stated that she
believed that she did not see the stop sign because the sun was in her eyes.
             In Hayes, a case much like this one, we articulated the showing that must
be made before a plaintiff may recover punitive damages:
             [T]he plaintiff must prove that the wrongdoer’s conduct was
             outrageous, such as acts done with malice or bad motives or
             a reckless indifference to the interests of another. Actual
             malice need not be proved. Conscious action in deliberate
             disregard of [others] . . . may provide the necessary state of
             mind to justify punitive damages. If the evidence does not
             give rise to an inference of actual malice or conduct
             sufficiently outrageous to be deemed equivalent to actual




                                           -5-                                      6915

              malice, then the trial court need not submit the issue of
              punitive damages to the jury.[9]
We noted in Hayes our approval of the Restatement’s definition of “reckless disregard
of the safety of another.”10 We adopted the comments’ description of recklessness in the
factual context presented here:
              It is reckless for a driver of an automobile intentionally to
              cross a through highway in defiance of a stop sign if a stream
              of vehicles is seen to be closely approaching in both
              directions, but if his failure to stop is due to the fact that he
              has permitted his attention to be diverted so that he does not
              know that he is approaching the crossing, he may be merely
              negligent and not reckless.[11]

The plaintiff in Hayes argued that recklessness was an issue for the jury because there
was evidence that the defendant was familiar with local streets and traffic signals and that
he had failed to “look for traffic as he approached the intersection,” to brake, or to “look
for the traffic signal due to lapse of concentration.”12 After reviewing this evidence in


       9
              Id. at 934-35 (citations omitted) (internal quotation marks omitted).
       10
              Id. at 935 n.5. RESTATEMENT (SECOND ) OF TORTS § 500 (1964) provides:
              The actor’s conduct is in reckless disregard of the safety of
              another if he does an act or intentionally fails to do an act
              which it is his duty to the other to do, knowing or having
              reason to know of facts which would lead a reasonable man
              to realize, not only that his conduct creates an unreasonable
              risk of physical harm to another, but also that such risk is
              substantially greater than that which is necessary to make his
              conduct negligent.
       11
             Hayes, 718 P.2d at 935 (emphasis added) (quoting RESTATEMENT (SECOND )
OF T ORTS § 500 cmt. b).

       12
              Id.

                                            -6-                                       6915

light of the Restatement definitions, we concluded that it “did not present genuine issues
of material fact nor give rise to an inference of conduct amounting to reckless
indifference to the rights of others.”13
              Pouzanova contends that in this case, as in Hayes, there is insufficient
evidence of reckless intent. Morton counters that unlike the plaintiff’s claim in Hayes,
which was based on the defendant’s failure to see a stop light, her claim is that
Pouzanova saw the stop sign and chose to run it. She argues that the two witness
statements and Pouzanova’s arguably conflicting recollections raise a genuine issue as
to whether Pouzanova saw the sign.
              We conclude, however, that the district court did not err when it found that
this evidence was insufficient to support a finding of recklessness. The statement of
Pouzanova’s passenger supports only the undisputed proposition that she drove through
the stop sign; it says nothing about her state of mind when she did so. The second
witness, who was coming up behind Pouzanova at the intersection, was in an even worse
position to speculate on Pouzanova’s intent. In fact, he testified that she was already
proceeding into the intersection when he noticed her car ahead of him, and he did not
even know whether she had stopped at the stop sign. We also do not accept that
Pouzanova’s post-accident statements, in which she first disclaimed any recollection of
the accident and then speculated that the sun must have been in her eyes, can reasonably
be construed as admissions that she saw the stop sign at the time.
              In sum, there is no evidence of recklessness that would meaningfully
distinguish this case from Hayes. We hold, therefore, that the district court correctly
granted summary judgment to Pouzanova on Morton’s punitive damages claim.




       13
              Id. at 936.

                                           -7-                                      6915
       B.	    The District Court Properly Declined To Require The Joinder Of
              Morton’s Husband For Purposes Of Allocation Of Fault.
              Morton brought a motion in limine before trial that sought, among other
things, to exclude any evidence “blaming [Morton’s husband] for causing any of Mrs.
Morton’s claimed injury” on grounds that the husband should have been joined as a
third-party defendant pursuant to AS 09.17.080 and Alaska Civil Rules 14 and 16. The
trial court denied that aspect of the motion. At trial, both Morton and her husband
testified about violence in their marriage. Pouzanova argued that these incidents of
domestic violence were relevant to Morton’s claim for loss of enjoyment of life, and that
some or all of Morton’s non-economic loss was due not to the accident but to her
domestic situation. On appeal, the superior court ruled that the district court had erred
in “allowing plaintiff’s husband to be blamed for plaintiff’s injuries without him being
joined as a party to the lawsuit.”         Pouzanova contends that the superior court
misinterpreted the governing statutes; Morton appears to concede that the superior
court’s analysis was flawed.
              Under AS 09.17.080, a jury may not allocate fault to a third party unless
that third party has been joined as a defendant, with certain exceptions not relevant
here.14 “Fault” is statutorily defined to include “acts or omissions that are in any measure
negligent, reckless, or intentional toward the person or property of the actor or others,
or that subject a person to strict tort liability.”15 Although the definition of “fault” is thus
expansive, we agree with Pouzanova that the requirement of joinder is limited to those
who are arguably at fault for damages caused by the incident at issue in the action.




       14
              AS 09.17.080(a).
       15
              AS 09.17.900.

                                              -8-                                         6915
              Subsection (a)(1) of section .080 requires the jury, “[i]n all actions
involving fault of more than one person,” to first find “the amount of damages each
claimant would be entitled to recover if contributory fault is disregarded.”16 In other
words, the jury’s first task in deciding on the damages aspect of a verdict is to determine
the totality of the damages suffered by the plaintiff and attributable to the incident at
issue. Subsection (a)(2) requires the jury to then determine “the percentage of the total
fault that is allocated to each claimant, defendant, third-party defendant, person who has
been released from liability, or other person responsible for the damages . . . .”17 The
allocation of fault under subsection (a)(2) is thus for purposes of determining liability for
those damages that the claimant “would be entitled to recover” under subsection (a)(1).
That is, it is only fault for the incident at issue that is being allocated among potentially
responsible parties. Pouzanova’s challenge here was to the amount of damages Morton
“would be entitled to recover” under subsection (a)(1). Pouzanova was not contending
that Morton’s husband was responsible for damages that Morton would otherwise be
“entitled to recover” in the action; she was contending that Morton was not “entitled to
recover” those damages at all, because they had not been caused by the incident that was
the subject of Morton’s complaint.
              The only damages Morton was seeking in this action were those caused by
the automobile accident, for which Pouzanova conceded liability.                 Under the
circumstances, the district court was correct in ruling that Morton’s husband did not have
to be joined as a third-party defendant.




       16
              AS 09.17.080(a)(1).
       17
              AS 09.17.080(a)(2) (emphasis added).

                                            -9-                                        6915
       C.	     The District Court, On Remand, Should Exclude Evidence Of The
               Hammer Incident Under Evidence Rule 403.
               Finally, Pouzanova takes issue with the superior court’s decision that the
district court erred in allowing brief testimony about an incident of domestic violence in
which Morton allegedly threatened her husband with a hammer. The superior court
found no abuse of discretion in the district court’s admission of other evidence of
domestic violence, explaining that it was relevant to Morton’s claim for damages for loss
of enjoyment of life. The superior court found, however, that evidence of the hammer
incident should have been excluded for two reasons: (1) it was not given enough context
to make it relevant, and (2) it was more prejudicial than probative. We agree.
               Evidence Rule 403 provides:         “Although relevant, evidence may be
excluded if its probative value is outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” “Evidence properly excludable as
‘cumulative’ falls into two categories[:] . . . evidence supporting an uncontested or
established fact [and] . . . evidence repeating a point made by previous evidence.”18 The
latter category of cumulative evidence should be excluded only with caution, since it by
definition concerns a disputed point, and “repetition of the same evidence on a disputed
point by several witnesses is often persuasive in establishing the truth of that evidence.”19
               We do not need to decide in this case whether the general evidence of
domestic violence was relevant to Morton’s claim for damages for loss of enjoyment of




       18
               Wasserman v. Bartholomew, 923 P.2d 806, 813 (Alaska 1996) (citations
omitted).
       19
               Id. n.22 (citing 6 JOHN H. W IGMORE, EVIDENCE § 1908, at 760 (Chadbourne
Rev. 1976)).

                                           -10-	                                       6915
life, as it is only evidence of the hammer incident that is before us on appeal.20 Evidence
of the hammer incident is problematic. First, as the superior court noted, although the
defense argued that Morton’s ability to wield a hammer was proof of her recovery from
her accident-related injuries, the testimony about when the hammer incident occurred
was too vague to allow the jury to make that connection. And even if this temporal
deficiency could be cured on remand, the evidence is still more unfairly prejudicial than
probative. The evidence was cumulative in both senses of the term: it was undisputed
that there was domestic violence in the Mortons’ marriage, and this point had already
been made repeatedly in other testimony. The probative value of the hammer incident
was therefore meager, while its prejudicial effect was likely high.
              Morton asks us to require the exclusion of “the majority of the evidence of
domestic violence and its criminal aftermath.” The only evidentiary issue on appeal,
however, relates to the hammer incident, and that is all we decide here.21 But we assume
that if other evidence of domestic violence is offered at trial on remand and a proper
objection is made, the trial court will approach the balancing process of Evidence




       20
             See Liimatta v. Vest, 45 P.3d 310, 314 (Alaska 2004) (“[A] jury assigned
the responsibility of determining the value of a loss of enjoyment of life should have had
the opportunity to consider evidence that [a plaintiff’s] mental and physical functions,
customary activities and capacity to enjoy the pleasures of life were already restricted by
a long-term addiction to drugs.” (quoting Ocasio v. Amtrak, 690 A.2d 682, 684-85 (N.J.
Super. App. Div. 1997)) (internal quotation marks omitted)). We see major distinctions
between domestic violence and the drug addiction at issue in Ocasio but do not need to
discuss them further here.
       21
              See Schofield v. City of St. Paul, 238 P.3d 603, 608 (Alaska 2010)
(declining to review additional alleged evidentiary issues when remanding for new trial
“[b]ecause it is unknown what specific evidence will be introduced on remand and what
objections might be raised”).

                                          -11-                                       6915

Rule 403 with care, particularly in light of its earlier determination that the evidence has
only “minimal relevance.”
              V.     CONCLUSION
              We REVERSE the superior court’s decision on appeal on the issues of
punitive damages and the allocation of fault. We AFFIRM the superior court’s decision
on appeal on the admissibility of evidence of the hammer incident and REMAND to the
district court for a new trial in conformance with this opinion.22




       22
              Because we are reversing on evidentiary grounds, we do not reach the issue
whether the district court erred when it failed to grant Morton’s challenges for cause of
three jurors, who Morton argues were not properly rehabilitated after expressing
skepticism about claims like Morton’s. We do note the requirement of our prior cases
that the rehabilitation of a juror who is challenged for cause must include an individual
examination as to whether the juror “will be fair, impartial and follow instructions.” See
Joseph v. State, 26 P.3d 459, 463 (Alaska 2001) (holding that Alaska Civil Rule 47(c)
“implicitly requires the court to examine a prospective juror individually before deciding
whether to grant a challenge [for cause]”); Sirotiak v. H.C. Price Co., 758 P.2d 1271,
1277 (Alaska 1988) (“All that is required of a prospective juror is a good faith statement
that he or she will be fair, impartial and follow instructions.”).

                                           -12-                                       6915
