Millo v. Delius
Millo v. Delius
Opinion of the Court
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the court at docket 41 is defendant Ralph Delius’ Motion for Partial Summary Judgment. At docket 48, plaintiff Kristy Millo opposes. At docket 51, Dr. Delius replies.
FACTS AND PROCEDURAL BACKGROUND
This case involves claims of damages resulting from the fatal shooting of Bret Millo by defendant Dr. Ralph Delius during a guided hunting trip in May 2010. Plaintiff Kristy Millo, the widow of Bret Millo, appears in this action on behalf of herself, her late husband, and their three adult daughters.
The facts, viewed in the light most favorable to the plaintiffs for purposes of this summary judgment motion, are as follows: Dr. Delius is a pediatric heart surgeon from Detroit, Michigan.
The shooting occurred on May 80, 2010 on the ninth day of the ten-day trip at approximately 10:00 p.m. on the flats at the head of the Bradfield Canal in Southeast Alaska.
The autopsy report prepared by the State Medical Examiner dated June 2, 2010 describes the bullet as having created a blast path through the right ventricle, right atrium, intraventricular septum, and posterior left ventricle of the heart; through the thoracic aorta; through the left lower lobe of the lungs; and through multiple ribs
Ms. Millo filed the complaint in this action in the Alaska Superior Court, Third Judicial District at Palmer on February 2, 2011 seeking compensatory, special, and punitive damages, as well as costs and attorney’s fees on behalf of herself, Mr. Millo, and their three adult daughters.
DISCUSSION
I. Jurisdiction
This court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332, as the parties are citizens of different states and the amount in controversy exceeds $75,000. In this diversity action, Alaska law applies to the substantive legal issues, while federal procedures apply.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The burden of showing the absence of a genuine dispute of material fact lies with the moving party.
When considering a motion for summary judgment, a court must accept as true all evidence presented by the non-moving party, and draw “all justifiable inferences” in the non-moving party’s favor.
A party asserting that a fact cannot be or is genuinely disputed must support its assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.44
When granting or denying a motion for summary judgment, a court should state on the record its reasons for doing so.
III. Analysis
A. Punitive Damages Claim
Ms. Millo seeks an award of punitive damages under AS 09.17.020, which provides in pertinent part:
(b) The fact finder may make an award of punitive damages only if the plaintiff proves by clear and convincing evidence that the defendant’s conduct
(1) was outrageous, including acts done with malice or bad motives; or
(2) evidenced reckless indifference to the interest of another person.
Ms. Millo asserts that Dr. Delius acted with reckless indifference to Mr. Millo’s interest by shooting purposefully after violating “numerous hunter safety rules and commandments.”
Ms. Millo cites to two cases in support of her position, Hayes v. Xerox and Chizmar v. Mackie, although in each of those cases the Alaska Supreme Court held that punitive damages were not appropriate.
In Hayes, the Alaska Supreme Court affirmed the superior court’s grant of summary judgment in favor of the defendant on the issue of punitive damages.
In Chizmar, the Court affirmed the superior court’s directed verdict in favor of the defendant on the issue of punitive damages.
In Pederson, the Alaska Supreme Court held that the superior court’s denial of the defendant’s motion for a directed verdict on punitive damages was an abuse of discretion.
Ms. Millo asserts the following facts to support her argument for punitive damages on the basis of recklessness: Dr. Delius was an experienced hunter familiar with the use of his rifle.
For the purposes of this motion, this court accepts these facts as true, supplementing them only with Dr. Delius’ uncontroverted testimony that he believed he was shooting at a bear that had been threatening Mr. Millo,
B. Survival Claim
AS 09.55.570 provides that “[a]ll causes of action by one person against another, whether arising on contract or otherwise, except those involving defamation of character, survive to the personal representatives of the former[.]” Alaska permits a survival action which “comes into existence at the time of injury and may compensate the victim only for the period between the time of injury and the time of death.”
Ms. Millo, as the personal representative of Mr. Millo, seeks to recover for the pain and suffering Mr. Millo experienced between his shooting and his death. Dr. Delius has presented expert medical testimony stating that because of the severity of the wounds, Mr. Millo’s death was instantaneous,
Through his expert, Dr. Delius has demonstrated that any pain or suffering that Mr. Millo experienced on May 30, 2010 was “substantially contemporaneous” with his death. Ms. Millo has not presented evidence that demonstrates that there is a genuine factual dispute on this issue. Accordingly, Dr. Delius is entitled to summary judgment on the survival claim.
C. Adult Daughters’ Statutory Beneficiary Status
Subsection (a) of AS 09.55.580, Alaska’s wrongful death statute, specifies the poten
The amount recovered, if any, shall be exclusively for the benefit of the decedent’s spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss.75
Subsection (c) of the statute directs the trier of fact, when determining the amount of damages to be awarded, to consider “deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries, without regard to age thereof, that would have resulted from the continued life of the deceased,” among other factors.
i. Dependency Requirement
The parties dispute whether adult children of a decedent are “children” under the “spouse or children or other dependents” language of subsection (a) of Alaska’s wrongful death statute. Dr. Delius argues that they are not; Ms. Millo disagrees. The language of the statute on this point is ambiguous and the case law does not expressly resolve this issue.
The first listed definition in Black’s Law Dictionary for “child” is “a person under the age of majority;” but that dictionary also contains a definition for child as a “son or daughter.” In this court’s view, the wrongful death statute should be read to conclusively presume that a decedent’s spouse and his minor children are dependent upon the decedent, whereas adult children would be statutory beneficiaries as “other dependents,” but only when they demonstrate actual dependency on the decedent. Such an approach is consistent with other Alaska law. Thus, a child over 18 years “has no legal right to post-majority educational support in Alaska.”
The Alaska Supreme Court has, with increasing clarity over the years, equated “statutory beneficiaries” with “dependents.” In one of the earliest and most often cited cases on this subject, In re Estate of Pushruk, the Court engaged in an extended discussion of the necessity of
In Greer Tank & Welding, Inc. v. Boettger, the Court held that the decedent’s ex-wife and non-adopted eleven year-old stepson, who lived apart from the decedent but received occasional financial support from him, could recover as beneficiaries as “other dependents” under the statute.
Ms. Millo argues that adult children need not be dependent in order to recover under the statute — rather, they are “children” that are presumptive statutory beneficiaries. Her analysis cites to two cases, Horsford v. Est. of Horsford and Kulawik v. ERA Jet Alaska.
In Horsford, the Alaska Supreme Court affirmed the superior court’s allocation of a wrongful death settlement between the decedent’s widow and two minor children.
In Kulawik, the Alaska Supreme Court reviewed the amount of damages awarded by the superior court to the decedent’s minor children.
More recently, in North Slope Borough v. Brower, the Alaska Supreme Court affirmed the jury’s award of wrongful death damages to the decedent’s mother as an “other dependent.”
ii. The Definition of Dependency
Ms. Millo asserts that even if dependency is required for surviving adult children, the Millo daughters would qualify, as they relied on their father in a number of non-financial ways.
The Alaska Supreme Court has rejected limiting the scope of dependency under the wrongful death statute to legal dependency.
In North Slope Borough v. Brower, a plaintiff mother’s “dependence on [her decedent son’s] subsistence and non-market support was sufficient to justify the jury’s finding that she was an ‘other dependent’ under the wrongful death statute!.]”
This court finds that the precedents of the Alaska Supreme Court establish that an individual must be dependent on the decedent for financial support in order to qualify as a dependent for statutory beneficiary purposes.
Hi. Dependency of Mr. Millo’s Daughters
“[D]ependency is a question of fact.”
Viewing the facts in the light most favorable to Ms. Millo, they do not support a finding that the Millos’ daughters were financially dependent on Mr. Millo at the time of his death.
D. $400,000 Cap on Non-Economic Damages
The parties are in agreement that the plaintiffs’ non-economic damages will be capped at $400,000 pursuant to AS 09.17.010.
E. Companionship and Advice-Related Services Claim
Ms. Millo seeks to recover economic damages for the loss of Mr. Millo’s “Companion and Advice-type Services” based on the report of her expert economist, Dr. Pershing Hill.
AS 09.17.010 provides that in a wrongful death action, “all damage claims for non-economic losses shall be limited to compensation for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, loss of consortium, and other nonpecuniary damage.” AS 09.55.580(c) lists considerations for the trier of fact to apply in determining the amount of an award, among them “(3) loss of assistance or services irrespective of age or relationship of decedent to the beneficiary or beneficiaries” and “(4) loss of consortium[.]”
Ms. Millo asserts that the loss of Mr. Millo’s companionship and advice is an economic loss of services.
In the 1974 case of Schreiner v. Fruit, the Alaska Supreme Court established that wives could recover for loss of a husband’s consortium.
A claim for relief for loss of consortium provides a means of recovery for an injury not otherwise compensable. It should be recognized as ‘compensating the injured party’s spouse for interference with the continuance of a healthy and happy marital life.’ The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her.128
As this passage demonstrates, Alaska has — from the beginning of its recognition of this cause of action for women — considered the loss of “companionship and solace” to be in the same class as the non-economic loss of consortium.
The Alaska Supreme Court’s recognition of loss of .companionship as a noneconomic loss is borne out in more contemporary contexts as well. In North Slope Borough, the Alaska Supreme Court upheld a jury’s verdict that had awarded damages to the decedent’s mother as a beneficiary under the wrongful death statute. The jury’s verdict had segregated the plaintiffs damages into the categories of economic and noneconomic losses. The description for non-economic loss included “loss of consortium, affection and companionship.”
Plaintiffs’ expert Dr. Hill attempts to distinguish companionship from consortium by asserting that “people are able to hire paid ‘companions’ ” such as nurses and health aides. He uses wage rates for those professions to value the loss of Mr. Millo’s services in that regard.
While non-market services such as the performance of household chores and subsistence hunting and fishing can, under Alaska law, qualify as economic damages, the provision of companionship and advice from a loved one falls within the category of non-economic damages, and is therefore subject to the statutory cap on such damages. Accordingly, summary judgment is granted to Dr. Delius on this issue.
For the foregoing reasons, Dr. Delius’ Motion for Partial Summary Judgment is GRANTED.
. Mem. in Supp. of Mot. at 3 (Docket 38).
. Answer to Interrog. No. 3 and Attach., Ex. E to Mem. in Supp. of Mot. (Docket 41).
. Dept, of Public Safety Information, Ex. C (at 4) to Mem. in Supp. of Mot. (Docket 38).
. Answer to Interrogs. Nos. 1 and 3, Ex. E to Mem. in Supp. of Mot. (Docket 41).
. Dep. of Mark Galla at 46-47, Ex. E to Mem. in Supp. of Mot. (Docket 41).
. Id.; Dep. of Marlin Benedict at 38, Ex. G to Mem. in Supp. of Mot. (Docket 38).
. Dept, of Public Safety Report at 1, Ex. C to Mem. in Supp. of Mot. (Docket 38).
. Almanac.com sunrise/sunset listing for May 30, 2010, Ex. 4 to Opp. (Docket 48). Cf. Dept, of Public Safety Report at 1, Ex. C to Mem. in Supp. of Mot. (Docket 38) (gauging sunset time as 9:22 p.m.).
. Wrangell Police Dept. Incident Report # 1 at 2, Ex. B to Mem. in Supp. of Mot. (Docket 41).
. Id.
. Wrangell Police Dept. Supp. Report # 2 at 3, Ex. B to Mem. in Supp. of Mot. (Docket 41).
. Id.
. Id.
. Wrangell Police Dept. Incident Report # 1 at 2.
. Wrangell Police Dept. Supp. Report # 2 at 3.
. Id.
. Dep. of Ralph Delius at 221-22, Ex. 8 to Opp. (Docket 48).
. Id. at 223. See also Answer to Interrogs. No. 2, Ex. E to Mem. in Supp. of Mot. (Docket 41) ("The lighting conditions were poor. I could only see a silhouette.”).
. Dep. of Mark Galla at 48, Ex. F to Mem. in Supp. of Mot. (Docket 41).
. Dep. of Mark Galla at 141, Ex. 3 to Opp. (Docket 48).
. Dept, of Public Safety Report at 1; Wrangell Police Dept. Incident Report #1 at 2.
. Wrangell Police Dept. Supp. Report # 2 at 3; Dep. of Mark Galla at 31-32, Ex. F to Mem. in Supp. of Mot. (Docket 41) (Dr. Delius was using a Blaser rifle).
. Wrangell Police Dept. Supp. Report # 2 at 3.
. Id. ("Ralph said it took him about 15 minutes to get there.”); Dept, of Public Safety Interview # 2 with Ralph Delius at 6, Ex. C to Mem. in Supp. of Mot. (Docket 41) ("Delius stated it took him approximately 10 minutes” to reach Millo).
. Wrangell Police Dept. Incident Report # 1 at 2.
. Id.; Wrangell Police Dept. Supp. Report # 2 at 3.
. Wrangell Police Dept. Supp. Report # 2 at 3.
. Wrangell Police Dept. Incident Rep. # 1 at 1-2.
. Autopsy Report at 4, Ex. L to Mem. in Supp. of Mot. (Docket 38).
. Id.
. Expert Report of Vincent J.M. di Maio, M.D. at 4, Ex. M to Mem. in Supp. of Mot. (Docket 39).
. Compl., Millo v. Delius, Case No. 3PA-11-978 CI, Ex. A to Notice of Removal (Docket 1).
. Jury Demands, Exs. C, E to Notice of Removal.
. Notice of Removal.
. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id. at 248-49, 106 S.Ct. 2505.
. Id. (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
. Id. at 248, 106 S.Ct. 2505.
. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
. Fed.R.Civ.P. 56(c)(1).
. Fed.R.Civ.P. 56(a).
. Opp. at 6, 8 (Docket 48) (citing to Dep. of Ralph Delius at 135-36, Ex. 9 to Opp. (Docket 48) (Dr. Delius testifying to have taken a Michigan firearm safety course in 2003 that addressed the "ten commandments of firearm safely”)); The Ten Commandments of Firearm Safety, Michigan Dept, of Natural Res., Ex. 7 to Opp. (Docket 48).
. Mem. in Supp. of Mot. at 11-13.
. Opp. at 6-8 (citing Chizmar v. Mackie, 896 P.2d 196 (Alaska 1995); Hayes v. Xerox, 718 P.2d 929 (Alaska 1986)). Ms. Millo also cites to a unreported federal district court case, Larson v. Era Aviation, 2001 WL 34133498 (D.Alaska 2001). Opp. at 7.
. Mem. in Supp. of Mot. at 9-10 (citing Pederson v. Barnes, 139 P.3d 552 (Alaska 2006)). Dr. Delius also cites briefly to Lamb v. Anderson, 147 P.3d 736, 738 (Alaska 2006). Opp. at 9. In Lamb, the defendant had consumed an enormous quantity of alcohol before getting in his truck and striking the plaintiff motorcyclist, seriously injuring him. Lamb, 147 P.3d at 738. The Alaska Supreme Court held that the defendant's criminal conviction for assault was conclusive evidence of his recklessness for purposes of a punitive damages award, where recklessness was an element of the criminal charge. Id. at 745.
. Hayes, 718 P.2d 929.
. Id. at 931.
. Id. at 934 (citing Sturm, Ruger & Co. v. Day, 594 P.2d 38, 46 (Alaska 1979) modified, 615 P.2d 621 (Alaska 1980), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), overruled on other grounds, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985), quoting Restatement (Second) of Torts § 908 (Tent. Draft No. 19, 1973)).
. Id. at 935 (citing RESTATEMENT (SECOND) OF TORTS § 500 comment (g) (1964)).
. Id. at 935-36.
. Chizmar, 896 P.2d 196.
. Id.
. Id. at 210 (citing State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264, 1266 (Alaska 1992)).
. Id.
. Id. at 210-11 (citing Wien Air Alaska v. Bubbel, 723 P.2d 627, 631 (Alaska 1986) (no reasonable juror could conclude defendant was indifferent to consequences of action where defendant attempted to remedy effects of allegedly wrongful act)).
. Pederson v. Barnes, 139 P.3d 552 (Alaska 2006).
. Id. at 562.
. Id. (citing Restatement (Second) of Torts § 908).
. Opp. at 8.
. Id.
. Id.
. Dep. of Ralph Delius at 215-16, Ex. D to Mem. in Supp. of Mot. (Docket 48).
. Dep. of Ralph Delius at 221, Ex. 8 to Opp. (Docket 48).
. Id. at 224.
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See discussion, supra pp. 871-72.
. In re Est. of Maldonado, 117 P.3d 720, 729 (Alaska 2005).
. N. Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1190 (Alaska 1977) (citing St. Louis, Iron Mtn. & So. Ry. v. Craft, 237 U.S. 648, 655, 35 S.Ct. 704, 59 L.Ed. 1160 (1915)). See also In re Est. of Maldonado, 117 P.3d at 729; 25A C.J.S. § 33 ("pain and suffering substantially contemporaneous with death and so brief as to be inseparable from it are not sufficient to support an action under a survival statute.”).
. Expert Report of Vincent J.M. di Maio, M.D. at 4, Ex. M to Mem. in Supp. of Mot. (Docket 39) ("Due to the extreme nature of the internal wounds, death would have been instantaneous.”).
. Opp. at 9. Ms. Millo states that she has placed a request with the State Medical Examiner’s Office regarding this case, but has not yet received a response. Id. However, expert disclosures for retained and non-retained experts were due by December 1, 2011, per the court's Scheduling and Planning Order at docket 11, and Ms. Millo did not send her request to the State Medical Examiner until January 25, 2012.
. AS 09.55.580(a).
. AS 09.55.580(c).
. Dowling v. Dowling, 679 P.2d 480 (Alaska 1984), superseded in part by statute to extend post-majority support to children age 18 while still in high school. See AS 25.24.170(a).
. 679 P.2d 480 (Alaska 1984).
. 562 P.2d 329 (Alaska 1977).
. Id. at 331.
. 609 P.2d 548 (Alaska 1980).
. Id. at 551.
. 198 P.3d 1134, 1161 (Alaska 2008) ("Because neither decedent had any dependents ... AS 09.55.580(a) limited the recovery of the estates to pecuniary harm[.]”) (citing In re Estate of Pushruk, 562 P.2d at 331 (defining "dependent” for purposes of AS 09.55.580 as one who is actually dependent upon the decedent for support at the time of his death, such as spouses or children)). Cf AS 09.15.010 (allowing a parent to maintain an action "for the injury or death of a child below the age of majority.”).
. Opp. at 10-11 (citing Horsford v. Est. of Horsford, 561 P.2d 722, 728 (Alaska 1977); Kulawik v. ERA Jet Alaska, 820 P.2d 627 (Alaska 1991)).
. Horsford, 561 P.2d at 728 (Alaska 1977).
. Id. at 726.
. Id. at 728 n. 15.
. Id. al728.
. Kulawik, 820 P.2d 627.
. Id. at 634 (citing Horsford, 561 P.2d at 728-29) (emphasis in original).
. 215 P.3d 308 (Alaska 2009).
. Id. at 312-12 (citing Kulawik, 820 P.2d at 635).
. See, e.g., Kulawik, 820 P.2d at 638 n. 21.
. Opp. at 12.
. Greer Tank & Welding, Inc. v. Boettger, 609 P.2d 548, 550-51 (Alaska 1980) (rejecting Greer's proposal "to limit the scope of ‘other dependents’ to legal dependents.”).
. Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1089 (Alaska 1979) (dependency requirement mentioned in passing; case decided on statute of limitations grounds).
. Greer Tank & Welding, Inc., 609 P.2d at 551 (citing In re Estate of Pushruk, 562 P.2d at 331) (emphasis added).
. Id.
. Sowinski v. Walker, 198 P.3d 1134, 1161 n. 138 (Alaska 2008) (citing In re Estate of Pushruk, 562 P.2d at 331).
. 215 P.3d 308, 314 (Alaska 2009).
. Id. at 310.
. Id.
. Wrangell Police Dept. Supplemental Report # 1, Ex. 12 to Opp. (Docket 48) (listing Mr. Millo as having a Palmer address).
. Dep. of Jamie Millo at 12, Ex. N to Mem. in Supp. of Mot. (Docket 39); Dep. of Jesse Kirgis at 12-13, Ex. P to Mem. in Supp. of Mot. (Docket 39); Dep. of Randi Bleau at 6, 11, Ex. O to Mem. in Supp. of Mot. (Docket 39).
. Reply at 7-8 (Docket 51).
. Dep. of Jamie Millo at 7, 12-13; Dep. of Jesse Kirgis at 6, 7, 13; Dep. of Randi Bleau ató, 11-12.
. Greer Tank & Welding, Inc, 609 P.2d at 551 (citing In re Estate of Pushruk, 562 P.2d at 331).
. Opp. at 12.
. Opp. at 12. See also Dep. of Kristy Millo at 188, Ex. Q to Mem. in Supp. of Mot. (Docket 39).
. Dep. of Jamie Millo at 7, 12-13; Dep. of Jesse Kirgis at 6, 7, 13; Dep. of Randi Bleau ató, 11-12.
. Dep. of Jamie Millo at 7, 12-13.
. Dep. of Jesse Kirgis at 6, 7, 13.
. Dep. of Randi Bleau at 6, 11-12.
. Dep. of Jesse Kirgis at 54.
. Dep. of Randi Bleau at 18-19.
. Ms. Millo has testified that she and Mr. Millo had intended to help Ms. Kirgis and Jamie Millo pay off their student loans and to assist Ms. Bleau with a down payment on a home, but had not actually done so. Dep. of Kristy Millo at 186-88. A prospective intent to provide future financial assistance — absent actual financial dependency on the decedent at the time of his death — is not a basis for dependency.
. This court truly commends the Millos for raising such responsible adults, who were each able to achieve financial independence at a young age while maintaining a close relationship with their family.
. Mem. in Supp. of Mot. at 20-22; Opp. at 13.
. Opp. at 13.
. Opp. at 13; Reply at 8. This is in line with settled Alaska case law. Kodiak Island Borough v. Roe, 63 P.3d 1009, 1016-17 (Alaska 2003) ("The legislature may limit the amount of damages that can be awarded, but it is for the jury to determine the extent of the plaintiff’s injury and the damage award that will make her whole. Instructing the jury on the cap interferes with these responsibilities.”).
. The Alaska Supreme Court has expressed misgivings over the effect the statutory cap has on a plaintiff's ability to recover fully for an injury, but has consistently deferred to the legislature's right to implement it. See, e.g., C.J. v. State, Dept. of Corrs., 151 P.3d 373, 382 (Alaska 2006) (footnotes omitted) (”[W]e appreciate that there will be severely injured persons who are under-compensated as a result of this legislation, and we are under no illusion that this result will seem fair to them. In deciding that the cap is constitutional, we express no opinion about whether damages caps are good policy. As we noted in Evans [v. State, 56 P.3d 1046, 1054] (Alaska 2002) '[i]t is not a court’s role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people.’ ”).
. Report of Dr. Hill at 13, Ex. R. to Mem. in Supp. (Docket 39).
. Mem. in Supp. of Mot. at 24.
. Opp. at 14.
. Ms. Millo asserts as part of her description of Mr. Millo's companionship that Mr. Millo "had taken on the primary responsibility of taking care of the home.” Opp. at 14. However, Mr. Millo's household services have been valued by Dr. Hill in a separate category of his report, and Ms. Millo’s ability to seek recovery for them has not been put at issue by Dr. Delius in this motion.
. 519 P.2d 462 (Alaska 1974). Though the Alaska Supreme Court recognized the cause of action in Schreiner, it ultimately held that the plaintiff’s claim in that case was barred by
. Id.
. Id. at 465-66 (citations omitted).
. 215 P.3d 308, 311 (Alaska 2009) ("Past Non-Economic Loss to Isabel Brower (including loss of consortium, affection and companionship and pain and suffering of Isabel Brower): $250,000.00”).
. Report of Dr. Hill at 8, Ex. R. to Mem. in Supp. (Docket 39).
. Id.
. Schreiner, 519 P.2d at 465.
Reference
- Full Case Name
- Kristy MILLO, Personal Representative of the Estate of Bret Millo, and on behalf of the Heirs of the Decedent v. Ralph DELIUS, M.D.
- Cited By
- 5 cases
- Status
- Published