I.General Consideration

Construction. —

By expressly including AS 09.05.015 (a)(2)-(10) in AS 09.05.015 ’s catch-all provision, the legislature did not intend to include AS 09.05.015(a)(12) . Vanvelzor v. Vanvelzor, 219 P.3d 184 (Alaska 2009).

Husband attempted to avoid conclusion that the jurisdictional grounds set out in AS 09.05.015(a)(12) were not met by arguing that AS 09.05.015 was not exclusive; however, the statutory grounds for jurisdiction over personal claims against a nonresident party in a divorce or annulment were exclusive, and the husband’s constitutional law argument was irrelevant. Vanvelzor v. Vanvelzor, 219 P.3d 184 (Alaska 2009).

Factors in determining nonresident contacts. —

The following approach is used in evaluating the contacts a nonresident defendant has with the forum: (1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant’s forum-related activities; and (3) the exercise of jurisdiction must be reasonable. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

There is no mechanical or quantitative test for jurisdiction under the International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) reasonableness standard. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

Extent of purposeful submission to laws of forum state. —

It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. The extent of purposeful submission to the laws of the forum state necessary to satisfy this requirement, however, depends upon the nature of the activity giving rise to the suit. Whether due process is satisfied must depend upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. Alaska 1971).

The smaller the element of purposeful interjection by the defendant into the forum, the less is jurisdiction to be anticipated and the less reasonable is its exercise. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

Interests of the State of Alaska and the plaintiff outweigh any inconvenience which defendants may suffer as a result of the requirement to defend this suit in Alaska. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Applied in

Kuk v. Nalley, 166 P.3d 47 (Alaska 2007).

Quoted in

Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974); Allen v. Allen, 645 P.2d 774 (Alaska 1982); Lagerwey v. Lagerwey, 681 P.2d 309 (Alaska 1984); Crews v. Crews, 769 P.2d 433 (Alaska 1989).

Cited in

Swenson Trucking & Excavating v. Truckweld Equip. Co., 604 P.2d 1113 (Alaska 1980); Perito v. Perito, 756 P.2d 895 (Alaska 1988); Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989); Puhlman v. Turner, 874 P.2d 291 (Alaska 1994); Hamilton v. Blackman, 915 P.2d 1210 (Alaska 1996); McCaffery v. Green, 931 P.2d 407 (Alaska 1997); L.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009).

II.Constitutionality

Broad long-arm statute. —

Alaska’s long-arm statute is a broad one, which is regarded as an attempt by the legislature to establish jurisdiction to the maximum extent permitted by due process. Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971); Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973); Fairbanks Air Service, Inc. v. Air Operations International Corp., 378 F. Supp. 1405 (D. Alaska 1974); Modern Trailer Sales v. Traweek, 561 P.2d 1192 (Alaska 1977).

The law of Alaska antedating this section subjected foreign corporations to Alaska process to “the outer limits of the due process clause of the federal constitution.” This section cannot be broader than that, and it is not seriously contended that this section is narrower. Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. Alaska 1971).

The Alaska long-arm statute is an assertion of jurisdiction to the maximum extent permitted by due process. Morrow v. New Moon Homes, 548 P.2d 279 (Alaska 1976).

The supreme court has construed this section to extend Alaska’s jurisdiction to the maximum reach consistent with the guarantees of due process under the 14th amendment. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

Since this section has been construed by the Alaska supreme court to establish jurisdiction to the maximum extent permitted by due process, federal court needs only consider whether asserting jurisdiction over the defendant would violate the due process clause of the fourteenth amendment. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

III.Jurisdiction

A.In General

Nonresident with insubstantial activities within state. —

If the nonresident defendant’s activities within a state are neither substantial nor continuous and systematic, the existence of jurisdiction depends on the nature and quality of those of the defendant’s contacts that are related to the cause of action. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

Sovereign status of a nonresident defendant militates against the reasonableness of jurisdiction, at least in cases arising before the passage of the Foreign Sovereign Immunity Act of 1976, 28 U.S.C. § 1602 et seq. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

Probate proceeding. —

In a probate proceeding, long-arm jurisdiction under this section was consistent with the due process requirements of the Fourteenth Amendment as applied to an heir who lived outside Alaska. In re Estate of Fields, 219 P.3d 995 (Alaska 2009).

Divorce action. —

This section simply requires six consecutive months of Alaska residency while in a marital relationship; it does not require that the married couple share a home, let alone that they spend every day together for the required six months. Therefore, a superior court had personal jurisdiction over a husband who had resided in Alaska for six consecutive months during his marital relationship with the wife; the husband testified that he resided in Alaska more or less continuously for the first eight months of the marriage, the husband obtained an Alaska driver’s license, he identified Alaska as his residence for federal tax purposes, and he bought a condominium in Alaska. Richter v. Richter, 330 P.3d 934 (Alaska 2014).

For enumeration of various interests of the forum state and plaintiff involved in determining the propriety of asserting personal jurisdiction, see Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Sale of defective aircraft during corporate dissolution. —

In an action to recover for the death of persons allegedly caused by the installation of floats on an aircraft, it was immaterial in determining the applicability of this section that the sale of the aircraft occurred during the winding up and dissolution of the aircraft corporation, which was a Washington corporation, since the appropriate Washington statute provides generally that the dissolution of a corporation shall not impair any remedy available against such corporation, its officers, or its shareholders, for any claim existing prior to such dissolution if the action on the claim is commenced within two years of the date of the final dissolution. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Fact that shipyard defendant was in a foreign country was a factor bearing negatively on the reasonableness of personal jurisdiction. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

Service in the state. —

Because the father was served in Alaska consistent with paragraph (a)(1)(A) of this section, he could not deprive the superior court of personal jurisdiction over him by withholding his consent. Barlow v. Thompson, 221 P.3d 998 (Alaska 2009).

Jurisdictional power upheld. —

Where legal doctrine, documents, exhibits, witnesses, and counsel from both Germany and Alaska might be involved in an action; two of the parties were German and two were American corporations; and the original injury and underlying litigation occurred in this state, Alaska’s jurisdictional power was upheld despite claims of inconvenience and unreasonableness by a party. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

Unilateral withdrawal of consent to jurisdiction held ineffective. —

Where husband had resided in Alaska since at least the inception of the superior court case and continued to reside in Alaska without evidencing an intent to become a resident somewhere else; the record provided no reason to doubt that the husband was a domiciliary of Alaska and was subject to the personal jurisdiction of the Alaska courts in the wife’s divorce action. Bartels v. Bartels, — P.3d — (Alaska Sept. 16, 2009) (memorandum decision).

Jurisdiction over corporations. —

Superior court did not have general jurisdiction over corporate defendants; New York would have general jurisdiction over defendants, as both were incorporated there and maintained headquarters there, and none of the plaintiff’s allegations established contacts with Alaska approaching a level that would make either defendant essentially at home in Alaska. Harper v. BioLife Energy Sys., 426 P.3d 1067 (Alaska 2018).

B.Minimum Contacts

Scope of long-arm statute in context of default judgment. —

Where Alaska bank moved for and was granted default judgment against two related Ohio corporations, only one of which had contracted with the bank for a line of credit, Alaska did not have jurisdiction over the noncontracting corporation and the default judgment was set aside. Kennecorp Mortgage & Equities v. First Nat'l Bank, 685 P.2d 1232 (Alaska 1984).

“Transact business” in AS 10.05.642 encompasses all those activities which would subject a foreign corporation to the jurisdiction of Alaska courts when measured by the outer limits of the due process clause of the federal constitution. Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971).

“Minimal contacts” required. —

However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the “minimal contacts” with that state that are a prerequisite to its exercise of power over him. Chemical Separations Corp. v. Trevor Boyce Associates, Inc., 305 F. Supp. 427 (D. Alaska 1969).

Superior court did not have specific jurisdiction over the first defendant where the only alleged contact was the publication of a brochure that mentioned plaintiff, and nothing showed that the first defendant targeted Alaska when publishing the brochure. Harper v. BioLife Energy Sys., 426 P.3d 1067 (Alaska 2018).

Superior court did not have specific jurisdiction over the second defendant, which had not been shown to have purposefully availed itself of the privileges of conducting activities in Alaska, either on its own behalf or through the first defendant, and thus any exercise of jurisdiction over the second defendant would have been inappropriate. Harper v. BioLife Energy Sys., 426 P.3d 1067 (Alaska 2018).

Minimum contacts satisfying due process. —

Due process is satisfied when a nonresident defendant has established minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971); Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980); Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

In determining whether a nonresident defendant has established minimum contacts with Alaska such that due process would not be offended by the exercise of personal jurisdiction, the quality rather than the quantity of the contacts is emphasized. Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971); Modern Trailer Sales v. Traweek, 561 P.2d 1192 (Alaska 1977).

Purposeful activity by nonresident required. —

Most courts appear to have interpreted Hanson v. Denckla, 357 U.S. 235, 78 S. Ct. 1228, 2 L. Ed. 2d 1283, rehearing denied, 358 U.S. 858, 79 S. Ct. 10, 3 L. Ed. 2d 92 (1958), as requiring purposeful activity on the part of a nonresident defendant before the proper assertion of personal jurisdiction. The Alaska supreme court apparently follows that view. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Canadian supplier made an affirmative choice to contract with an Alaskan corporation which planned to use its product in Alaska, thus purposefully availing itself of the privilege of conducting business activities within Alaska; the exercise of personal jurisdiction over the supplier comports with fair play and substantial justice. Polar Supply Co. v. Steelmaster Indus., 127 P.3d 52 (Alaska 2005).

Purposeful activity defined in terms of foreseeability. —

The supreme court has defined purposeful activity in terms of foreseeability that a product might find its way into the forum state. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Where defendants had actual knowledge that an aircraft would be flown to and used in Alaska and these defendants had transacted business with “drop-in” Alaskan residents, including the purchaser of the aircraft, for over 10 years, it is inconceivable that defendants could deny being engaged in economic activity within Alaska as a matter of commercial actuality, or that defendants could deny actual knowledge that the aircraft would find its way to Alaska. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Franchises. —

Alaska could, consistent with constitutional due process protections, assert in personam jurisdiction over a nonresident franchisor but not over the nonresident franchisee or a second nonresident franchisor on a cause of action which arose in Mexico. Glover v. Western Air Lines, 745 P.2d 1365 (Alaska 1987).

How propriety of asserting personal jurisdiction determined. —

Where Alaskan purchased an airplane from a company in Washington that he had done business with in the past, defendant sellers were found to have engaged in purposeful activity within Alaska, as they had actual knowledge that the aircraft would be flown to and used in Alaska. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

Solicitation from out of state. —

The defendant’s active solicitation of a loan from the plaintiff by calling him in Valdez, and his alleged acts of misrepresentation during the course of their interactions arguably would place the plaintiff’s claim within this subsection, even if the injury to the plaintiff were viewed as resulting from the defendant’s acts or omissions outside the state. Cramer v. Wade, 985 P.2d 467 (Alaska 1999).

Receipt of funds. —

This provision allows jurisdiction over an out-of-state party receiving funds from an Alaska resident. Cramer v. Wade, 985 P.2d 467 (Alaska 1999).

Out-of-state guaranty association. —

Where the Washington Insurance Guaranty Association undertook the defense of a negligence claim, the superior court’s exercise of personal jurisdiction over the association did not violate its due process rights. Washington Ins. Guar. Ass'n v. Ramsey, 922 P.2d 237 (Alaska 1996).

Alaska courts lacked jurisdiction over nonresident defendant in an action on the basis of fraudulent or negligent misrepresentations regarding a trailer where plaintiffs purchased the trailer and a tow truck from defendant in Pueblo, Colorado, for the purpose of towing the trailer to Anchorage, Alaska, for use as a home, were stopped inside the Canadian border and informed by Canadian officials that they could not continue to tow the trailer through Canada because it was in violation of certain requirements, and plaintiffs then left the trailer in Canada, proceeded with the tow truck to Anchorage, since there were no tangible goods, products, materials, or things provided by defendant that were used or consumed in Alaska with the exception of the tow truck, and any tortious misrepresentations made to plaintiffs regarding the trailer, which never came into Alaska, were made in Colorado. Modern Trailer Sales v. Traweek, 561 P.2d 1192 (Alaska 1977).

Minimum contact with Alaska established. —

See Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971).

There were minimum contacts with Alaska under subdivision (a)(5)(A) to satisfy due process concerns when a Tennessee bank gave direct assurance by letter to an Alaska company that payment under a letter of credit would be made upon delivery of the product in Alaska, thereby purposefully availing itself of the privilege of conducting business activities in Alaska. American Nat'l Bank & Trust Co. v. International Seafoods, 735 P.2d 747 (Alaska 1987).

Sufficient minimum contacts existed in Alaska such that jurisdiction consistent with due process could be exercised over respondent where respondent established numerous contacts with the state in addition to forming a contract with an Alaskan; respondent solicited a contract with an Alaskan entity, negotiated with petitioner’s representatives by telephone between Alaska and Pennsylvania, executed the written contract in Alaska, performed a significant portion of his services in Alaska, mailed his invoices to Alaska for payment, and was paid by checks drawn on an Alaskan bank. Alaska Telecom v. Schafer, 888 P.2d 1296 (Alaska 1995).

A nonresident defendant in a paternity and support action had sufficient minimum contacts with Alaska where he had sexual intercourse with a resident of Alaska while in Alaska and should have foreseen the possibility that a child might be born and that such an action might be brought. Parker v. State, Dep't of Revenue, Child Support Enforcement Div., 960 P.2d 586 (Alaska 1998).

The defendant’s contacts with the state were sufficient for personal jurisdiction where he purposefully directed his activities at a resident of the state by telephoning and transmitting documents to the plaintiff in Valdez, actively encouraging the plaintiff’s participation in a truck stop loan, pledging the assets of the company of which he was president to guarantee the loan’s repayment, signing a promissory note, and sending the plaintiff written confirmation that he had arranged direct repayment by the company’s escrow officer. Cramer v. Wade, 985 P.2d 467 (Alaska 1999).

A wholly-owned Ohio subsidiary, but not its parent Ohio holding company, was subject to personal jurisdiction under subsections (a)(3) and (a)(5)(D): the subsidiary allegedly failed to make promissory note payments owed in Alaska to the plaintiff bank and drew on a line of credit causing bank funds to be transferred from Alaska to Ohio; it had purposeful activity in Alaska; the hardships on the parties from litigating the case in Alaska or Ohio appeared relatively balanced; the negotiations forming the basis of the business relationship occurred in Alaska; and Alaska had an interest in resolving disputes concerning its resident corporations. Kennecorp Mortgage & Equities v. First Nat'l Bank, 685 P.2d 1232 (Alaska 1984).

C.Ordinary Course of Trade

Injury to property, given a broad construction, means not much more than mere pecuniary loss. Fairbanks Air Service, Inc. v. Air Operations International Corp., 378 F. Supp. 1405 (D. Alaska 1974).

“In the ordinary course of trade”. —

The Alaska supreme court has not to date interpreted the meaning of the phrase “in the ordinary course of trade” as that term is used in this section. Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973); Packard v. Cessna Aircraft Co., 366 F. Supp. 966 (D. Alaska 1973).

The chain of distribution is not a significant factor in determining jurisdiction. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

Stream of commerce doctrine. —

A manufacturer who has placed his product, directly or through normal channels of trade, in a forum state, knowing that defective design or workmanship in his product will create a substantial risk of injury in that state, can, consistent with due process, be called upon to defend his product there. Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. Alaska 1971).

When the activities complained of create a substantial risk of injury in the forum state, direct contact with that state is not essential. It is sufficient that the defendant purposefully sets his product or his designs into the stream of commerce, knowing, or having a reason to know, that they will reach the forum state and that they create a potential risk of injury. Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. Alaska 1971).

When a manufacturer voluntarily places its product in the general stream of commerce without restriction, the “minimum contact” requirement is satisfied in all forums where it is foreseeable to the manufacturer that the product may be marketed. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

The stream of commerce theory applies where the party attempting to assert jurisdiction is a nonresident corporation bringing an indemnity or contribution action separate from the original products liability lawsuit. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

The stream of commerce doctrine applied to the manufacturer of a component part of a product which is widely distributed by another entity where the component manufacturer deliberately designs its product in anticipation of it being widely marketed in American jurisdictions, and sells the component directly to several major auto producers with the knowledge that the component will be incorporated into their products and sold throughout America. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

Manufacturer and supplier of a seat belt had sufficient minimum contacts with the state, by deliberately placing their seat belt restraint system in the general stream of commerce, to meet due process standards for personal jurisdiction where the manufacturer and supplier had sold millions of seat belt assemblies for incorporation into automobiles it knew were destined for purchase by consumers throughout the United States. Alaska law required installation of lap belts in all automobiles sold in this state during 1967, the model year of the claimants’ car, and the manufacturer and supplier represented by a label sewn on the belt involved in the claimants’ accident that its restraint systems were “approved for sale in all states,” and took steps to insure that the belts complied with standards established by the American Society of Automotive Engineers. Volkswagenwerk, A. G. v. Klippan, GmbH, 611 P.2d 498 (Alaska), cert. denied, 449 U.S. 974, 101 S. Ct. 385, 66 L. Ed. 2d 236 (U.S. 1980).

D.Injury

Corporate payment for undelivered out-of-state aircraft. —

Payment of money by Alaska corporation to Florida corporations pursuant to contract for aircraft, which was never delivered to Alaska, constituted a pecuniary loss. Fairbanks Air Service, Inc. v. Air Operations International Corp., 378 F. Supp. 1405 (D. Alaska 1974).

The occurrence of an injury in Alaska allegedly caused by an act or omission by a defendant outside of Alaska is itself a contact with Alaska. While such a contact is not sufficient, taken alone, to establish minimum contacts with Alaska, very little by way of additional contacts need be shown to satisfy due process. Jonz v. Garrett/Airesearch Corp., 490 P.2d 1197 (Alaska 1971).

The fact that actual harm is to the purse, not to the body, should not affect the amenability to jurisdiction of one who creates the risk. Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. Alaska 1971).

IV.Burden of Proof

Burden of establishing personal jurisdiction is on plaintiff. —

Morrow v. New Moon Homes, 548 P.2d 279 (Alaska 1976).

If a plaintiff wishes to argue the unavailability of an alternative forum as a factor increasing the reasonableness of jurisdiction in the forum, he must carry the burden of going forward on this issue. Insurance Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir. Alaska 1981).

Collateral references. —

Within statute providing for service of process in action against nonresident natural person or persons doing business in state, 10 ALR2d 200.

Foreign corporation’s purchase within state or goods to be shipped into other state or country as doing business within state for purposes of jurisdiction or service of process, 12 ALR2d 1439.

Power of state to subject foreign corporation to jurisdiction of its courts on sole ground that corporation committed tort within state, 25 ALR2d 1202.

What constitutes doing business within state by a foreign magazine, newspaper, or other publishing corporation, for purposes other than taxation, 38 ALR2d 747.

Foreign insurance company as subject to service of process in action on insurance policy, 44 ALR2d 416.

Who is “managing agent” of domestic corporation within statute providing for service of summons or process thereon, 71 ALR2d 178.

Service in absence of express statutory direction on dissolved domestic corporation, 75 ALR2d 1399.

Holding directors’, officers’, stockholders’, or sales meetings or conventions in a state by foreign corporation as doing business or otherwise subjecting it to service of process and suit, 84 ALR2d 412.

Manner of service of process upon foreign corporation which has withdrawn from state, 86 ALR2d 1000.

Propriety of service of process in an in personam action on resident minor defendant whose only guardian is a nonresident and cannot be served validly either within or without state, 86 ALR2d 1183.

Attack on personal service as having been obtained by fraud or trickery, 98 ALR2d 551.

Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 ALR3d 738.

Who is “general” or “managing” agent of foreign corporation under statute authorizing service of process on such agent, 17 ALR3d 625.

In personam jurisdiction over nonresident manufacturer or seller under “long-arm” statutes, 19 ALR3d 13.

Applicability, to actions not based on products liability, of state statutes or rules of court predicating in personam jurisdiction over foreign manufacturers or distributors upon use of their goods within state, 20 ALR3d 957.

Validity, as a matter of due process, of state statutes or rules of court conferring in personam jurisdiction over nonresidents or foreign corporations on the basis of isolated business transaction within state, 20 ALR3d 1201.

Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on making or performing a contract within the state, 23 ALR3d 551.

Construction and application of state statutes or rules of court predicating in personam jurisdiction over nonresidents or foreign corporations on the commission of a tort within the state, 24 ALR3d 532.

Construction and application, as to isolated acts or transactions, of state statutes or rules of court predicating in personam jurisdiction over non-residents or foreign corporations upon the doing of an act, or upon doing or transacting business or “any” business, within the state, 27 ALR3d 397.

Construction of phrase “usual place of abode,” or similar terms referring to abode, residence, or domicil, as used in statutes relating to service of process, 32 ALR3d 112.

Sovereign immunity doctrine as precluding suit against sister state for tort committed within foreign state, 81 ALR3d 1239.

Who is “person of suitable age and discretion” under statutes or rules relating to substituted service of process, 91 ALR3d 827.

In personam jurisdiction under long-arm statute of nonresident banking institution, 9 ALR4th 661.

In personam or territorial jurisdiction of state court in connection with obscenity prosecution of author, actor, photographer, publisher, distributor, or other party whose acts were performed outside the state, 16 ALR4th 1318.

Validity, construction, and application of “fiduciary shield” doctrine — modern cases, 79 A.L.R.5th 587.

I.General Consideration

Editor's notes. —

Many of the cases cited in the notes below were decided under former provisions of AS 09.10.030 .

Applicability of amendments. —

Trial court erred in applying the pre-2003 versions of this section and AS 09.45.052(a) , rather than the current versions, which would have required the neighbor to show that she possessed the parking lot in the good-faith belief that she owned the property, because the legislature expressly declared that the amendments applied to claims that had not vested before the amendment and the neighbor's claim had not yet vested. Prax v. Zalewski, 400 P.3d 116 (Alaska 2017).

This section is a statute of repose. Roberts v. Jaeger, 5 Alaska 190 (D. Alaska 1914).

This section presupposes that there never has been a deed. Roberts v. Jaeger, 5 Alaska 190 (D. Alaska 1914).

Section may be basis of new title. —

While this statute purports only to bar the remedy, it is clear that it can be the basis of a new title, which may be asserted offensively as well as defensively. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

This section can be utilized as the basis of a new title. Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969).

This statute not only establishes a time limit within which an action to recover real property must be brought, but also constitutes the method by which a claimant may establish a new title through adverse possession. Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983).

Such as right of way. —

While this section purports only to bar a remedy, it may be used as the basis of establishing an easement of right of way across another’s land. Hamerly v. Denton, 359 P.2d 121 (Alaska 1961).

Possessory right may be protected by action. —

In Noble v. Melchoir, 5 Alaska 729 (1917), the court said: “The possessory right thus acquired by defendant is a property right, for the protection of which an appropriate action may be maintained by the occupant.” Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

Applicability of provision requiring possession or seizure within 10 years. —

The provision of this section that no action may be maintained unless it appears that the plaintiff or his predecessor was seized or possessed of the premises within 10 years is not inapplicable to any party except a plaintiff. Juneau Indep. Sch. Dist. v. Smith, 92 F. Supp. 617, 13 Alaska 1 (D. Alaska 1950).

Differences between claim under color of title and one without color of title. —

Essential difference between requirements for claim under color of title and one without such color of title is in the number of years of possession required. In both cases, there must be uninterrupted, adverse, and notorious possession, but only seven years is required under former AS 09.25.050 (now AS 09.45.052 ) as opposed to 10 years under this section. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

When the land claimed is not the land described in the deed, the doctrine of color of title does not apply and the 10-year period of this section must be met. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

A trust, once established, is not within the statute of limitations. Alaska N. Ry. Co. v. Alaska Cent. Ry. Co., 5 Alaska 304 (D. Alaska 1915).

If defendants were holding land as trustees for the plaintiff or its grantor, the statute would not run until there was some act of disavowal done by said trustees which showed unequivocally that they were holding adversely to the alleged cestui que trust. Alaska N. Ry. Co. v. Alaska Cent. Ry. Co., 5 Alaska 304 (D. Alaska 1915).

Possession of trustee is presumed to be possession of cestui que trust. —

Alaska N. Ry. Co. v. Alaska Cent. Ry. Co., 5 Alaska 304 (D. Alaska 1915).

Clear proof of surrender of owner's rights required. —

Before a court would be justified in interfering with an owner’s enjoyment of his own land, it ought to be satisfied by the clearest kind of proof that the owner has surrendered that absolute jus disponendi which the law guarantees to him. Roberts v. Jaeger, 5 Alaska 190 (D. Alaska 1914).

Statute does not run until plaintiff acquires title. —

The statute of limitations begins to run against a grantee under the general land laws of the United States only from the date when he acquires the title, and an occupancy by another prior to that time will not be deemed adverse to the title of such grantee. Tyee Consol. Mining Co. v. Langstedt, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Adverse possession claim tolled by lease on property. —

Due to a lease on estate property, a bankruptcy debtor had a reversionary or future possessory interest in the property, so the 10-year period for the occupiers’ adverse possession claim did not begin to run until the debtor had a present interest in the property when it terminated the lease in 2008. Green v. UNAATUQ, LLC (In re Catholic Bishop), — F. Supp. 3d —, 525 B.R. 723 (D. Alaska 2015), aff'd, 668 Fed. Appx. 269 (9th Cir. Alaska 2016).

To start the statute of limitations running against a plaintiff who relied on a townsite trustee’s deed, the plaintiff must have been disseized, and in order to be disseized he must have at some time have been seized of title, either of fee or freehold, and until the issuance of patent to him he was not so seized. Alaska & N. W. T. T. Co. v. Bernhoffer, 4 Alaska 99 (D. Alaska 1910); Valentine v. McGrath, 4 Alaska 102 (D. Alaska 1910).

It is the delay, the duration of time after title seized, that raises the bar of the statute; this may not be by relation, else one ought be barred before time seized. Valentine v. McGrath, 4 Alaska 102 (D. Alaska 1910).

Running against claimant of mining claim. —

The statute of limitations does not begin to run against the claimant of a mining claim before his patent issues. Tyee Consol. Mining Co. v. Langstedt, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Quieting title to mining claims. —

Ten-year statute of limitations for recovery of real property applied to a lessor’s suit to quiet title to disputed mining claims. The shorter statute for contract actions in AS 09.10.053 did not govern because the remedy the lessor sought against its former lessee was title to the mining claims, not contract damages. Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148 (Alaska 2012).

The action of an owner on his own land does not start the running of adverse possession. Karvonen v. Dyer, 261 F.2d 671 (9th Cir. Alaska 1958).

Foreclosure actions. —

In the absence of a controlling statute a foreclosure action is subject to the same period of limitations as the underlying debt. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

The portion of Alaska’s Code of Civil Procedure which deals with limitation of actions does not contain any provision which specifically establishes a limitation period governing the foreclosure of either legal or equitable mortgages. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

In a suit to foreclose a mortgage the six-year period of limitation is controlling and the ten-year period pertaining to actions upon sealed instruments is inapplicable. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

The six-year statute of limitations (AS 09.10.050 ), which governs the underlying obligation, is determinative of the period of time in which a party is required to commence an action to foreclose a purported equitable mortgage security. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

Inverse condemnation. —

Where the plaintiff directed his inverse condemnation claim at the effects of the installation of water and sewer lines on his property, not at the initial installation, and where he could not reasonably have been expected to have known about the interconnection between the lines until he spoke with city employees, his claim was not time barred. Lane v. City of Kotzebue, 982 P.2d 1270 (Alaska 1999).

The limitations period did not bar the plaintiff from recovering for inverse condemnation damages caused by glaciation or freezing occurring within the ten years before he filed suit. Lane v. City of Kotzebue, 982 P.2d 1270 (Alaska 1999).

Because the last disputed conveyance took place 27 years before the holder of a special use permit brought his second takings claim against the State, it was barred by the ten-year statute of limitations set forth in this section, which applies to actions for ejectment and inverse condemnation. Smith v. State, 274 P.3d 1179 (Alaska 2012).

Right to trial by jury. —

Whether the plaintiff is in possession of the disputed property at the time of the filing of the claim for a prescriptive easement under this section is not determinative of the question of whether the claim is treated as a legal or equitable one, which prevents a party who seizes possession of disputed property from gaining the right to a jury trial. McGill v. Wahl, 839 P.2d 393 (Alaska 1992).

Section applicable to inverse condemnations. —

The ten-year limitations statute bars inverse condemnation claims for injury occurring more than ten years before the suit was filed. Fairbanks N. Star Borough v. Lakeview Enters., 897 P.2d 47 (Alaska 1995).

Section applicable to ejectment action arising from regulatory change. —

Takings claim by salmon fishers based on damage to value of shore fishery leases from regulatory changes was not barred by the 10-year statute of limitations for ejectment actions under this section because regulations at issue first went into effect in 1996, and the complaint was filed less than 10 years later. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Applied in

Swift v. Kniffen, 706 P.2d 296 (Alaska 1985); Tenala, Ltd. v. Fowler, 921 P.2d 1114 (Alaska 1996); Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013).

Quoted in

Alaska Nat'l Bank v. Linck, 559 P.2d 1049 (Alaska 1977); Ault v. State, 688 P.2d 951 (Alaska 1984).

Stated in

Walsh v. Emerick, 611 P.2d 28 (Alaska 1980); Smith v. Krebs, 768 P.2d 124 (Alaska 1989).

Hurd v. Henley, 478 P.3d 208 (Alaska 2020).

Cited in

Carter v. Hoblit, 755 P.2d 1084 (Alaska 1988); Hansen v. Davis, 220 P.3d 911 (Alaska 2009).

II.Adverse Possession

A.In General

Legal title gives constructive possession until ouster by adverse possession. —

A legal title gives a right of possession as well as the legal seizin, and possession coextensive with the right, until there is an ouster by adverse possession. Tyee Consol. Mining Co. v. Langstedt, 121 F. 709, 2 Alaska Fed. 53 (9th Cir. Alaska 1903), rev'd, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Supposition underlying adverse possession. —

Adverse possession presupposes the existence of some title or right to possession in another which is adverse to the one claiming title by adverse possession. Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969).

The good faith of the claimant is not a relevant issue under the ten-year adverse possession statute. Lott v. Muldoon Rd. Baptist Church, 466 P.2d 815 (Alaska 1970).

Elements required under AS 09.45.052 and this section. —

Under both former AS 09.25.050 (now AS 09.45.052 ) applicable when possession is under color of title and this section applicable in other cases, the claimant must satisfy the basic elements of adverse possession in establishing his or her claim. Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983).

In order to acquire title by adverse possession, the claimant must prove, by clear and convincing evidence, that for the statutory period his use of the land was continuous, open and notorious, exclusive and hostile to the true owner. Nome 2000 v. Fagerstrom, 799 P.2d 304 (Alaska 1990).

Three basic requirements for adverse possession are: (1) the possession must have been continuous and uninterrupted; (2) the possessor must have acted as if he were the owner and not merely one acting with the permission of the owner; and (3) the possession must have been reasonably visible to the record owner. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

Determination of conversion of permissive use to adverse use. —

Possession must be open, notorious, visible, continuous for the statutory period and under a claim of right. City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975).

Further fact-finding was required on remand to determine if and when a property claimant’s occupation of land met the adverse possession requirements of an earlier version of this section, applicable during the relevant time period; a determination of whether the claimant or his predecessor repudiated the true owner’s interest in the property through a distinct and positive assertion of their own claim of ownership or through a long and unambiguous occupation of the property was required for a finding of whether the initially permissive possession became hostile so that the claimant gained title through adverse possession. Glover v. Glover, 92 P.3d 387 (Alaska 2004).

In order to acquire title by adverse possession under a prior version of this section, a claimant had to prove by clear and convincing evidence that for the statutory period his use of the land was continuous, open and notorious, exclusive, and hostile to the true owner. Glover v. Glover, 92 P.3d 387 (Alaska 2004).

Purpose of requirements. —

The main purpose of nearly all the requirements is essentially the same, that is, to put the record owner on notice of the existence of an adverse claimant. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Evidence. —

Where, in 1956, the original grantor deeded a lot of land within a tract to appellants along with a perpetual right of way over a 30-foot strip, appellants filed an action in 2006 to quiet title and alleged ownership of the 30-foot strip by adverse possession. There was a genuine issue of material fact precluding summary judgment on the adverse possession claim under former AS 09.10.030 because appellants showed their possession of the disputed land was “hostile” by presenting evidence that they treated the disputed land as their own, held themselves out as owners of the land, and protected their right to exclusive use of the land. Cowan v. Yeisley, 255 P.3d 966 (Alaska 2011).

From the standpoint of the true owner, the purpose of the various requirements of adverse possession — that the nonpermissive use be actual, open, notorious, continuous, exclusive and hostile — is to put him on notice of the hostile nature of the possession so that he, the owner, may take steps to vindicate his rights by legal action. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974); Shilts v. Young, 567 P.2d 769 (Alaska 1977).

When title vests. —

Title automatically vests in the adverse possessor at the end of the statutory period. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

Adverse possession gives notice of rights. —

Where a person is in visible possession of real property adverse to the world and open and notorious, notice must be taken of his actual rights. A purchaser would be placed upon notice thereby. Nordling v. Carlson, 265 F.2d 507 (9th Cir. Alaska 1958).

Mere occupation of the premises, even for the statutory period, does not establish title. Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969).

Occupant cannot hold adversely who admits title is in United States. —

To constitute adverse possession there must be, among other requisites, an entry under claim of right hostile to the true owner and to the world, and an occupant of land cannot hold adversely while he admits the title to be in the United States. Tyee Consol. Mining Co. v. Langstedt, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Effect of patent on adverse claims. —

Since the issuance of a patent has the effect of cutting off, as against the United States and its grantees, all adverse claims based on use or occupancy not initiated pursuant to any statute providing for ultimate title, in the absence of any color of title, adverse possession by the defendant claiming title by such possession must be shown for the period of 10 years prior to the commencement of a proceeding under this section. Juneau Indep. Sch. Dist. v. Smith, 92 F. Supp. 617, 13 Alaska 1 (D. Alaska 1950).

When statute of limitations begins to run. —

See notes to Tyee Consol. Mining Co. v. Langstedt, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905); Valentine v. McGrath, 4 Alaska 102 (D. Alaska 1910), under analysis line I, “General Consideration.”. Alaska & N. W. T. T. Co. v. Bernhoffer, 4 Alaska 99 (D. Alaska 1910).

Burden of proof upon adverse possessor. —

A party claiming title to real property by adverse possession must bear the burden of proving each element by clear and convincing evidence. Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983).

Plaintiff may show adverse possession by his predecessors. —

An instruction was error which failed to let the jury consider the adverse possession of plaintiff’s predecessors in interest in determining whether plaintiff had acquired title by adverse possession. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

Attempts to transfer title not necessary. —

It is the transfer of possession, not title, which is the critical element, because a paper transfer is not necessary to connect adverse possessions. The privity required is that there must be a continuous possession by mutual consent, so that the possession of the true owner shall not constructively intervene. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

Agreement to transfer possessor's rights. —

If successive possessions are connected by any agreement or understanding which has for its object a transfer of the rights of the possessor, and is accompanied by a transfer of possession in fact, it is sufficient to constitute a continuous possession. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

Grantee may tack grantor's possession of lands not covered by deed. —

It is generally held that if, in connection with the conveyance of lands, there are circumstances showing an intent to transfer to the grantee the possession of other adjacent land occupied by the grantor and not covered by the deed, there is created such a privity that the grantee is permitted to tack the period of the grantor’s occupancy to his own in establishing title by adverse possession to the land not mentioned in the deed. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

Adverse possessions may be tacked. —

That the adverse possession may be by different occupants where a privity exists between them is almost universally held. The essential thing is that the continuity of possession is not broken so that the owner’s constructive possession will attach and allow him to recover the land. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

The adverse possession may be by different occupants, where a privity exists between them. Penn v. Ivey, 615 P.2d 1 (Alaska 1980).

Successive adverse possessors may tack their periods of possession together to satisfy the statutory duration requirements, if privity exists between them. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

Adverse possessors could tack the possession of their predecessors to their own possession where the predecessors took possession of the disputed property in March of 1967 after their mistaken purchase of another parcel from the true owner and the adverse possessors remained in continuous adverse possession until agents for the true owner actually rented the house and the tenant they procured moved into it in June, 1977. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

When privity created. —

Privity is created when circumstances surrounding a conveyance of land show that the grantor intended to transfer possession of the land not described in the deed and the grantee does, in fact, take possession of that land. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

Claim by prescription. —

To establish a prescriptive right to an easement, the use must have been open, continuous, and adverse, under claim of title or right, and with the knowledge and acquiescence of the owner of the servient estate. Roberts v. Jaeger, 5 Alaska 190 (D. Alaska 1914).

A road and bridge used for 20 full years by the public, under conditions creating a prescriptive right, that right becoming vested and determined at the end of 20 years, it was immaterial to decide whether the length of time required in Alaska for a prescriptive right of way is 20 years or 10 years, the latter time being the limitation by this section for bringing an action relating to the possession of real property. Clark v. Taylor, 9 Alaska 298 (D. Alaska 1938).

Use alone for the statutory period, even with the knowledge of the owner, would not establish an easement. Hamerly v. Denton, 359 P.2d 121 (Alaska 1961).

The requisites for a claim by prescription are essentially the same as for adverse possession except that a prescriptive claim is limited to certain rights in the land of another such as an easement. City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975).

The requirements to establish a prescriptive easement are the same as those for making a claim of adverse possession, and the required period of adverse use is ten years. McGill v. Wahl, 839 P.2d 393 (Alaska 1992).

This section, establishing a time limit during which an action to recover real property may be maintained, constitutes the method by which a claimant may establish title through adverse possession, and constitutes a method for establishing an easement through prescription; thus a party claiming a prescriptive easement need not bring an action as either an action to quiet title, AS 09.45.010 , or an ejectment, AS 09.45.630 . McGill v. Wahl, 839 P.2d 393 (Alaska 1992).

The elements of a prescriptive easement are essentially the same as the elements of adverse possession, except that adverse possession focuses on possession rather than use. McDonald v. Harris, 978 P.2d 81 (Alaska 1999).

City's use of property by maintaining power line on it. —

City granted a 5-year permit by the U.S. government to place power lines on the property did not subsequently hold the easement adversely to the owners even though a request to renew the permit was denied and the government quit-claimed the property to another; the city’s use remained permissive. City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975).

Adverse possessor prevailed. —

Where defendant in ejectment action showed by competent evidence that he entered upon land at a time when he had a right to do so, and under a claim of right, and had ever since been in the actual, exclusive, and continuous possession thereof, holding adversely to the plaintiff and his predecessors in interest during the statutory period, to wit, more than 10 years after the issuance of patent to the plaintiff’s predecessor and before the commencement of action, judgment was for defendant. Noble v. Melchoir, 5 Alaska 729 (D. Alaska 1917).

Summary judgment was properly granted to the adverse property owners on their adverse possession claim because the sewer easement did not negate the exclusive use of the adverse property owners; their active use of the disputed property, coupled with the encroaching fence's existence, satisfied the hostility element of adverse possession as the adverse owners' mistaken belief that they owned all of the property the fence enclosed did not undermine the hostility of their claim because they placed playground equipment near the fence and allowed staff and children at the daycare to use the disputed property; and the adverse owners' use of the disputed property without the permission of the fee owners overcame the presumption of permissive use. Yuk v. Robertson, 397 P.3d 261 (Alaska 2017).

Statutory period. —

An adverse possession claimant showed that she possessed the property for the statutory period where the Judge found that claimant used the property from 1982 through the summer of 1993 in satisfaction of this section. Vezey v. Green, 35 P.3d 14 (Alaska 2001).

Effect of amendments. —

The original grantor deeded a lot within a tract to appellants along with a perpetual right of way over a 30-foot strip. Appellants filed an action to quiet title, and summary judgment was proper on the adverse possession claim under the 2003 version of AS 09.10.030 which abolished adverse possession in cases where the claimant did not have color of title. The changes to AS 09.10.030 were not intended to be retrospective. Cowan v. Yeisley, 255 P.3d 966 (Alaska 2011).

B.Actual Possession

Time of possession insufficient. —

LLC that purchased real property from a religious organization (“debtor”) that declared Chapter 11 bankruptcy, free of liens and interests pursuant to 11 U.S.C.S. § 363, was entitled to an order which required a family that lived on the land to vacate the property; although the father’s sons did not receive actual notice of the debtor’s intent to sell the property, they received constructive notice by publication and they did not meet the requirements imposed by Alaska law for claiming title by adverse possession because the 10-year period for claiming title by adverse possession did not start to run until 2008, when the debtor cancelled a 99-year lease it gave a business in 1969, and it had not run by the time the LLC filed its motion. Unaatuq, LLC v. Green (In re Catholic Bishop), 509 B.R. 229 (Bankr. D. Alaska 2014), aff'd, — F. Supp. 3d —, 525 B.R. 723 (D. Alaska 2015).

Possession must be actual and continuous. —

Where the plaintiff has the better and superior right and title, the defendants’ alleged adverse possession could not avail them unless it was actual and continuous, as constructively the plaintiff is in possession by reason of its superior title and right. Pacific Coal & Transp. Co. v. Pioneer Mining Co., 205 F. 577, 4 Alaska Fed. 115 (9th Cir. Alaska 1913).

Only property actually possessed by the claimant during the whole statutory period may be acquired by adverse possession. Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983).

Actual possession defined. —

Actual possession means a pedis possessio which is definite, positive, and notorious. Pacific Coal & Transp. Co. v. Pioneer Mining Co., 205 F. 577, 4 Alaska Fed. 115 (9th Cir. Alaska 1913).

Flagging held insufficient indicia of adverse possession. —

In an adverse possession action, it was error to award plaintiff land 300 feet to the west of his cabin because flagging was a non-permanent marker and, without more permanent indications of use such as clearing of land or erecting permanent improvements, the flagging alone was not sufficient to support such an award. Also, given that the road leading to the cabin was a long-standing public trail, the plaintiff could not claim title to the trail through adverse possession. Vezey v. Green, 171 P.3d 1125 (Alaska 2007).

There cannot be constructive possession in two persons claiming to hold adversely at one and the same time. Pacific Coal & Transp. Co. v. Pioneer Mining Co., 205 F. 577, 4 Alaska Fed. 115 (9th Cir. Alaska 1913).

C.Notorious Possession

“Notorious” possession. —

The requirement that the possession must have been reasonably visible to the record owner is “notorious” possession so that if the owner visits the property, he would be put on notice and be able to assert his rights. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

The lack of actual knowledge by any party of an encroachment does not defeat the prerequisite of notoriety where a duly alert and reasonably diligent owner should have known that the encroachment existed. McDonald v. Harris, 978 P.2d 81 (Alaska 1999).

Imputed knowledge of adverse possessor's activities. —

In determining if an adverse possession is reasonably visible to the true owner, the test is not whether the owner in fact knows of the adverse possessor’s activities, but whether the owner can be charged with such knowledge. In addition to imputing such knowledge, courts generally recognize that community repute, as well as physical visibility, is relevant evidence that the true owner has been put on notice. Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983).

Character of the land must be considered with reference to the requirement of sufficient notoriety. Hence, the same acts are not required for uninhabited and forested land as for urban lots. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

Acts alone may be sufficient to put owner on notice. —

Where the user has acted, without permission of the true owner, in a manner inconsistent with the true owner’s rights, the acts alone (without any explicit claim of right or intent to dispossess) may be sufficient to put the true owner on notice of the nonpermissive use. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Acts held insufficient. —

Being on the property at least once a year for a half or full day and walking the boundary lines hardly would give indication to the owner that there was a hostile claim. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

Flying over property in an airplane gives no notice of possession. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

Repute as owner, without evidence of possession on the land, is not alone sufficient. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

The physical facts of entry and continued possession may themselves evidence an intent to occupy and to hold as of right sufficient in law to support the acquisition of rights by prescription. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Payment of taxes is a critical factor although it is only regarded so in connection with a visible physical presence on the land. Shilts v. Young, 567 P.2d 769 (Alaska 1977).

Claimants' leasing of property and exclusion of threatening interferences. —

Claimants’ behavior in leasing the property and excluding others from the land when their interest was threatened satisfied the requirement that an adverse possessor act as if he owns the land rather than as if he is merely on the land with the permission of the true owner. Bentley Family Trust v. Lynx Enters., 658 P.2d 761 (Alaska 1983).

Evidence sufficient. —

In an adverse possession case where the record owners had actual notice, the court did not need to examine the question of constructive notice; it was undisputed that all three owners knew of claimant’s presence on the bluff. Vezey v. Green, 35 P.3d 14 (Alaska 2001).

D.Exclusive Possession

Exclusive dominion over property required. —

Where possession was actual, open, notorious, and continuous, with a claim of ownership, but was not shown to be either exclusive or hostile, the possession was not adverse, and the statute of limitations never began to run. Tyee Consol. Mining Co. v. Langstedt, 121 F. 709, 2 Alaska Fed. 53 (9th Cir. Alaska 1903), rev'd, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

To deprive the record owner of his title, the adverse claimant’s acts must “evince a purpose to exercise exclusive dominion over the property.” Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

An owner would have no reason to believe that a person was making a claim of ownership inconsistent with his own if that person’s possession was not exclusive, but in participation with the owner or with the general public. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Requirement similar to others. —

The exclusive use requirement is often defined quite similarly to certain of the other requirements of adverse possession. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Total exclusivity is not required. —

A claimant’s possession need not be absolutely exclusive; it need only be a type of possession which would characterize an owner’s use. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

As long as the party claiming a prescriptive easement was the primary and only consistent user of the driveway for which the easement was claimed, a third party’s occasional use will not defeat the claim for easement rights based upon use of the driveway as a private access. McDonald v. Harris, 978 P.2d 81 (Alaska 1999).

Occasional clamdiggers could not destroy the exclusive character of adverse use where such casual intrusions were clearly not considered by the user to interfere or conflict with his own use. In allowing strangers to come on the land to dig clams and in allowing friends, relatives and others occasional use of the land, the user was merely acting as any other hospitable landowner might. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Exclusivity shown. —

Adverse possessor demonstrated exclusivity when she allowed moderate use of her resources, but ordered uninvited trespassers off the property. Vezey v. Green, 35 P.3d 14 (Alaska 2001).

E.Continuous Possession

Possession must be actual and continuous. —

See note under this catchline under analysis line II B, “Actual Possession.”

One of the requirements for acquisition of title by adverse possession is that the possession must be continuous for the statutory period in order to prevent the original owner’s possession from constructively attaching to the land, thus starting the statute running anew, because the owner must be out of possession for 10 years in order for the statute to be a bar to an action to recover the land. Ringstad v. Grannis, 171 F.2d 170, 12 Alaska 190 (9th Cir. Alaska 1948).

A showing that use was openly adverse to the owner’s interest must be for the full statutory period of ten years. If during that period it is established that the adverse claimant has done something to recognize the owner’s title, the continuity of the adverse possession period is interrupted and the ten-year period of limitation does not begin to run again in the adverse claimant’s favor until he repudiates the owner’s title. Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969).

Summer use of property. —

Adverse possession claimant’s summer use of property satisfied the continuity requirement, because claimant used the property as an average owner of similar property would. Vezey v. Green, 35 P.3d 14 (Alaska 2001).

F.Hostile Possession

Possession presumed to be with permission. —

When one enters into possession or use of another’s property, there is a presumption that he does so with the owner’s permission and in subordination to his title. Hamerly v. Denton, 359 P.2d 121 (Alaska 1961); Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969); Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

This presumption that one who enters into possession or use of another’s property does so with the owner’s permission is rebutted by the adverse claimant’s showing that he was not on the property by permission and establishing that the record title holder could have ejected him from possession throughout the statutory period. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

Overcoming presumption of permission. —

See note to, under catchline “Exclusive dominion over property required” under analysis line II D, “Exclusive Possession.” Tyee Consol. Mining Co. v. Langstedt, 121 F. 709 (9th Cir. 1903).

The presumption that one who enters into possession or use of another’s property does so with the owner’s permission is overcome only by showing that such use of another’s land was not only continuous and uninterrupted, but was openly adverse to the owner’s interest, i.e., by proof of a distinct and positive assertion of a right hostile to the owner of the property. Hamerly v. Denton, 359 P.2d 121 (Alaska 1961); Ayers v. Day & Night Fuel Co., 451 P.2d 579 (Alaska 1969).

There is no presumption user is hostile. —

The adversary character of the holding or enjoyment is one of the tests of the sufficiency of that holding or enjoyment, and there is no more reason for indulging in the presumption that a 10-year simple user of a right of way is hostile than there is for indulging in the presumption that any other simple holding of land for 10 years is hostile to the true owner. Roberts v. Jaeger, 5 Alaska 190 (D. Alaska 1914).

Acquiescence of owner in hostile acts of possessor. —

The whole doctrine of title by adverse possession rests upon the acquiescence of the owner in the hostile acts and claims of the person in possession. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

The word “hostile” is frequently used as a term of art meaning that the claim is “adverse” or under “claim of right,” and that it is not subordinate to the title of the true owner. City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975).

Presumption that use permissive. —

A public way may be created by public use of private property for the 10-year prescriptive period. There is a presumption that the use of land by an alleged easement holding was permissive. The state can overcome the presumption of permissive use by showing that such use of another’s land was not only continuous and uninterrupted, but was openly adverse to the owner’s interest, i.e., by proof of a distinct and positive assertion of a right hostile to the owner of the property. Weidner v. State, DOT & Pub. Facilities, 860 P.2d 1205 (Alaska 1993).

The presumption that use of land by an alleged easement holder was permissive does not arise if the roadway in question was not established by the owner of the servient estate for its own use, but was for many years the only means of passage to the dominant estate. McDonald v. Harris, 978 P.2d 81 (Alaska 1999).

Negating permissive use. —

Negating permissive use involves the concepts of openness and adversity. The openness requirement embodies the principle that a landowner is responsible for knowing the physical encumbrances on and the boundaries of the owner’s land. This responsibility includes any changes in existing uses on the land. In the present case, the state need only show that its continued use of Bay Road over the new route was open, and not that the change, if any, from the old road to the new route was open and obvious to the private landowner. Weidner v. State, DOT & Pub. Facilities, 860 P.2d 1205 (Alaska 1993).

Discussion of when use is permissive as opposed to “hostile” or under a “claim of right.” City granted a 5-year permit by the U.S. government to place power lines on the property did not subsequently hold the easement adversely to the owners even though a request to renew the permit was denied and the government quit-claimed the property to another; the city’s use remained permissive. City of Anchorage v. Nesbett, 530 P.2d 1324 (Alaska 1975).

The test for determining the existence of the requisite degree of hostility is a fairly objective one. The question is whether or not the claimant acted toward the land as if he owned it. His beliefs as to the true legal ownership of the land, his good faith or bad faith in entering into possession (i.e., whether he claimed a legal right to enter, or avowed himself a wrongdoer), are irrelevant. Peters v. Juneau-Douglas Girl Scout Council, 519 P.2d 826 (Alaska 1974).

The claimant’s beliefs as to the true legal ownership of the land, his good faith or bad faith in entering into possession (i.e., whether he claimed a legal right to enter, or avowed himself a wrongdoer), are irrelevant. The proper determination of whether the required degree of hostility exists is whether the acts of the claimant are the acts of an owner, sufficient to give the record owner notice of the possessor’s claim. Penn v. Ivey, 615 P.2d 1 (Alaska 1980).

Mistake in deed's description. —

Mistake in description on the deed conveyed to the true owner did not prevent the possession from being adverse to her. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

Finding of hostility not clearly erroneous. —

Although it is clear that the hostility requirement is not satisfied if the adverse claimant had the permission of the record owner to use the property, the trial court’s finding of hostility was not clearly erroneous where the only evidence of permissive use before the trial court was the record owner’s own testimony and this evidence was directly contradicted by the adverse claimant who testified that such a conversation had never taken place. Penn v. Ivey, 615 P.2d 1 (Alaska 1980).

Acquiring record title, after good title acquired by adverse possession. —

Adverse possessors did not destroy the adversity of their possession by acquiring record title to the lot because their record title was not good as against previous title based on adverse possession. Hubbard v. Curtiss, 684 P.2d 842 (Alaska 1984).

Collateral references. —

51 Am. Jur. 2d, Limitation of Actions, §§ 87, 131-133, 158.

54 C.J.S., Limitation of Actions, §§ 83-91.

Right of creditor to set aside transfer of property as fraudulent as affected by the fact that his claim is barred by statute of limitations, 14 ALR2d 598.

When statute of limitations or laches commences to run against action to set aside conveyance or transfer in fraud of creditors, 100 ALR2d 1094.

Owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 ALR3d 1202.

Grazing of livestock, gathering of natural crop, or cutting of timber by record owner as defeating exclusiveness or continuity of possession by one claiming title by adverse possession, 39 ALR4th 1148.

I.General Consideration

Editor’s notes. —

Many of the cases cited below were decided under former provisions of AS 09.10.050 which provided a 6-year statute of limitations for actions on contract, express or implied.

Applicability. —

Superior court properly concluded that the tort and contract statutes of limitations applied to a conservator’s legal claims. Moffitt v. Moffitt, 341 P.3d 1102 (Alaska 2014).

Public employee's declaratory and injunctive relief claim was not barred by the statute of limitations because the claim was prospective in nature and sought to challenge future enforcement of a statute as constitutionally infirm. Laches, not a statute of limitations claim, was the appropriate time-limiting defense. Metcalfe v. State, 382 P.3d 1168 (Alaska 2016), overruled in part, Hahn v. Geico Choice Ins. Co., 420 P.3d 1160 (Alaska 2018).

Statute of limitations in AS 09.10.120(a) is the applicable statute of limitations for a determination of overpayment because such a determination benefits the State by recouping overpaid benefits and collecting a penalty; AS 09.10.053 did not apply since this action did not arise under a contract, AS 45.04.111 did not apply because it applied only to actions under the Uniform Commercial Code, and AS 09.10.040 did not apply because this action was not based on any judgment. Levi v. State, 433 P.3d 1137 (Alaska 2018).

Partial summary judgment should not have been given to a member of an LLC, and a finding that the statute of limitations barred a second member's counterclaims was error, because the second member's counterclaims were compulsory, being “logically related,” and automatically related back to the first member's 2013 cross-claims. The first member's pleadings related back to his 2007 original cross-complaint since they focused on the transactions or occurrences that caused the LLC's losses, and the relation back to the 2007 cross-complaint allowed the second member to “escape the bar of the statutes of limitations.” Baker v. Duffus, 441 P.3d 432 (Alaska 2019).

Miscellaneous. —

In a case in which the claims accrued in May 2009 and the complaint was filed on September 7, 2012, the negligence claims were untimely under AS § 09.10.070(a) and the malpractice claims were untimely under AS § 09.10.053. 2002 Lawrence R. Buchalter Alaska Trust v. Phila. Fin. Life Assur. Co., 717 Fed. Appx. 35 (2d Cir. N.Y. 2017).

Burden of proof on holder of belongings. —

The trial court found under former AS 09.10.050 that where mother left her belongings with son and son failed to return some items, this evidence established a prima facie right to recovery for the mother, placing upon the son the burden of explaining the loss. Silvers v. Silvers, 999 P.2d 786 (Alaska 2000).

Financial services company and hospital as one plaintiff. —

In a Medicaid recipient’s claim against a hospital, alleging the hospital billed the recipient in breach of its agreement with the state, a financial services company’s suit against the recipient tolled the limitations period for the hospital; moreover, the financial services company and the hospital were one in the same plaintiff for the purposes of AS 09.10.240 , and the hospital’s counterclaim against the recipient was not time barred. Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319 (Alaska 2006).

Divorce property settlement agreement. —

When the parties incorporate a property settlement agreement into a divorce decree, the applicable statute of limitations is that of AS 09.10.040 , not this section [former AS 09.10.050 ], the statute of limitations controlling contracts. Lantz v. Lantz, 845 P.2d 429 (Alaska 1993), overruled, State, Dep't of Revenue ex rel. Inman v. Dean, 902 P.2d 1321 (Alaska 1995), overruled, Alaska v. Dean (Alaska 1995).

Breach of collective bargaining agreement. —

A claim based upon plaintiff’s failure to be paid at a rate commensurate with the work he was doing and upon violation of AS 23.05.140(b) , as to payment of wages on termination of employment, is not strictly or solely an action for liability upon a statute, but may be construed to state a cause of action for breach of the collective bargaining agreement. As such, it is controlled by the six-year statute of limitations for contract actions (this section [former AS 09.10.050 ]), and the superior court erred in dismissing the count based upon the running of the two-year statute of limitations for actions based upon a statute, former AS 09.10.070 (3). Reed v. Municipality of Anchorage, 741 P.2d 1181 (Alaska 1987); Quinn v. State Employees Ass'n/AFSCME, 944 P.2d 468 (Alaska 1997).

Mortgage not under seal is governed by this section [former AS 09.10.050 ]. —

The parties to a mortgage may make it a sealed instrument if they so desire and thus bring it within the 10-year statute. If they do not choose to avail themselves of that opportunity the instrument must perforce be governed by the law applicable to instruments not under seal and suit thereon must be brought within six years or the action is barred and the lien expires by operation of law. Carklin v. Grigsby, 9 Alaska 378 (D. Alaska 1938).

Condominium debts. —

Because condominium owners' payment directives were not binding, their debts were not beyond the statute of limitations; the declaration granted the condominium association the authority to disregard the owners' directives and apply their payments to their earliest accrued debts first, and multiple unit owners testified that the association had always applied payments to the oldest debts first. Black v. Whitestone Estates Condo. Homeowners' Ass'n, 446 P.3d 786 (Alaska 2019).

Misrepresentation and negligence are tort concepts, not contract, and the two-year statute of limitation (AS 09.10.070 ) respecting torts governs. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

Where the essence of a plaintiff’s complaint in an action for legal malpractice was negligence, the period of limitation found in AS 09.10.070 , rather than this section [former AS 09.10.050 ], applied. Van Horn Lodge v. White, 627 P.2d 641 (Alaska 1981), overruled, Lee Houston & Assoc. v. Racine, 806 P.2d 848 (Alaska 1991).

The two-year limitation of AS 09.10.070 , not this section [former AS 09.10.050 ], applied to a tort claim for intentional misrepresentation. Alaska Tae Woong Venture v. Westward Seafoods, 963 P.2d 1055 (Alaska 1998).

Medical malpractice claim. —

The six-year statute of limitations provided for in this section [former AS 09.10.050 ] was inapplicable towards a claim for noneconomic injuries arising out of the doctors’ professional malpractice; rather, the claim was governed by the two-year statute of limitations for injuries to the person not arising on contract contained in AS 09.10.070 . Pedersen v. Flannery, 863 P.2d 856 (Alaska 1993).

Contract arguments against state agency. —

If a party’s arguments against a state agency were in contract, then he should raise them in an administrative hearing, not in an original action before the superior court. Such an action must be filed within the six-year statute of limitations provided by this section [former AS 09.10.050 ]. State, Dep't of Nat. Res. v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993).

Action against Alaska Housing Finance Corporation. —

Former tenant's claims against the Alaska Housing Finance Corporation (AHFC) for the AHFC's alleged failure to conduct required inspections, the AHFC employees' alleged wrongful testimony against the tenant, and the AHFC's alleged role in the housing authority's denial of the tenant's rental application were barred by the three-year statute of limitations because the tenant should reasonably have discovered the existence of all of the elements of any cause of action by September 2009 when the former landlord obtained the judgment for damages to the apartment but he did not file his claims for over seven years. Robinson v. Alaska Hous. Fin. Corp., 442 P.3d 763 (Alaska 2019).

Actions against corporate directors for breach of fiduciary duty sound in contract, and are governed by the six-year statute. Bibo v. Jeffrey's Restaurant, 770 P.2d 290 (Alaska 1989); Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997).

Actions for illegal distribution of dividends. —

Action by shareholders for illegal distribution of dividends was contractual in nature and therefore the statute of limitations for the action was controlled by this section [former AS 09.10.050 ]. Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997).

Actions for breach of a fiduciary duty arising out of professional service relationships which primarily involve economic injury, because the duty allegedly breached does in part arise from the contract, are governed by this section [former AS 09.10.050 ] and not AS 09.10.070 . Lee Houston & Assoc. v. Racine, 806 P.2d 848 (Alaska 1991).

Negligent title action. —

An action against a real estate attorney and a title agency for negligent title research and disclosure is a professional negligence or malpractice action governed by the six-year statute of limitations of this section [former AS 09.10.050 ], not the two-year statute of limitations of AS 09.10.070 . This section [former AS 09.10.050 ] generally applies to professional malpractice actions claiming economic loss, while AS 09.10.070 applies to malpractice causing personal or reputation injury. Breck v. Moore, 910 P.2d 599 (Alaska 1996), overruled in part, Burton v. Fountainhead Dev., Inc., 393 P.3d 387 (Alaska 2017).

Action against bank official by depositor for conversion. —

Action against bank official for conversion of payroll checks endorsed by plaintiff for deposit to his bank account and for passing forged checks written on plaintiff’s account was governed by six-year statute of limitations in this section [former AS 09.10.050 ] rather than two-year statute of limitations in AS 09.10.070 . Vest v. First Nat'l Bank, 659 P.2d 1233 (Alaska 1983).

Foreclosure actions. —

In the absence of a controlling statute a foreclosure action is subject to the same period of limitations as the underlying debt. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

The portion of Alaska’s Code of Civil Procedure which deals with limitation of actions does not contain any provision which specifically establishes a limitation period governing the foreclosure of either legal or equitable mortgages. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

In a suit to foreclose a mortgage the six-year period of limitation is controlling and the ten-year period pertaining to actions upon sealed instruments is inapplicable. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

The six-year statute of limitations (former AS 09.10.050 ), which governs the underlying obligation, is determinative of the period of time in which a party is required to commence an action to foreclose a purported equitable mortgage security. Dworkin v. First Nat'l Bank, 444 P.2d 777 (Alaska 1968).

Original mortagor who was foreclosed upon but who made a payment nine years later on the promissory note revived mortgage company’s right to recover the previously time-barred installments under the deed of trust to the same extent as it revived the right to recover on the underlying promissory note; thus, because holders of a third deed of trust did not dispute that the late payment refreshed the original mortagor’s liability on the note, the trial court properly ruled that the payment restarted the statute of limitations and entitled the mortgage company to recover through foreclosure the full amount owing on the underlying note. Madden v. Alaska Mortg. Group, 54 P.3d 265 (Alaska 2002).

Denial of staff privileges at hospital. —

Where medical doctor was denied renewal of his staff privileges at hospital, his claim arose out of his contractual relationship with the hospital defendant, and this section [former AS 09.10.050 ] was the appropriate statute of limitations, not the 30- or 90-day limitation for administrative decisions and arbitration. Eufemio v. Kodiak Island Hosp., 837 P.2d 95 (Alaska 1992).

When section does not apply. —

Where workers’ compensation insurance carrier paid benefits to employee and became subrogated by operation of law to employee’s rights against alleged tort-feasor, carrier could claim no right to common-law implied indemnity since it had no preexisting legal relationship with alleged tort-feasor; thus, six-year statute of limitations did not apply. Providence Wash. Ins. Co. v. De Havilland Aircraft Co., 699 P.2d 355 (Alaska 1985).

Lapses by law firm. —

Limitations period for spoliation and fraudulent conveyance claims asserted against a law firm in connection with breach of fiduciary duty in a legal malpractice claim was the three-year statute for contract claims, not the residual two-year statute for tort claims. The spoliation claim was timely filed, as were legal malpractice claims arising from failure to advise of the expiration of limitations. Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013).

Stated in

Erkins v. Alaska Tr., LLC, 265 P.3d 292 (Alaska 2011); Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148 (Alaska 2012); McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715 (Alaska 2013).

Cited in

Preblich v. Zorea, 996 P.2d 730 (Alaska 2000); Hutton v. Realty Execs., Inc., 14 P.3d 977 (Alaska 2000); Egner v. Talbot's, Inc., 214 P.3d 272 (Alaska 2009).

II.When Claim Accrues

Denial of insurance claim. —

In a case that arose from a fire at the insured’s home, the statute of limitations began running when the insurance investigator sent his letter to the insured explaining the denial of his claim. Kaiser v. Umialik Ins., 108 P.3d 876 (Alaska 2005).

Running of limitations period not delayed by late invoicing. —

Although a limited partnership was not obligated to pay a business owner for crane services provided to the partnership until the business owner submitted an invoice for those services, where the parties’ agreement required the business owner to submit that invoice promptly after completion of the work the business owner could not extend the running of the limitations period by delaying submission of that invoice for two years. Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894 (9th Cir. Alaska 2006).

Breach of real estate broker’s insurer’s duty to defend. —

Claim that the real estate broker’s insurer breached its duty to defend accrued when the insurer notified the broker that it would not defend him against the franchisers’ claims; however, the running of the limitations statute, this section, was equitably tolled until the underlying litigation was complete, and the franchisers’ claim against the broker was not untimely. Brannon v. Cont'l Cas. Co., 137 P.3d 280 (Alaska 2006).

When statute of limitations begins to run in contract actions. —

The statute of limitations begins to run in contract causes of action from the time the right of action accrues. This is usually the time of the breach of the agreement, rather than the time that actual damages are sustained as a consequence of the breach. Howarth v. First Nat'l Bank, 540 P.2d 486 (Alaska 1975).

It is not material that the injury from the breach is not suffered until afterward, the commencement of the limitation being contemporaneous with the origin of the cause of action. Howarth v. First Nat'l Bank, 540 P.2d 486 (Alaska 1975).

If plaintiff can prove that defendant bank had a contractual duty “to preserve and protect” his property, including a duty to maintain fire insurance, in consideration for assignment of right, title and interest in all moneys due or to become due to plaintiff under a real estate contract with another party, and the bank does not fulfill its duty either by acting as the insurer of the property or by contracting with an insurance company, then the statute of limitations will not bar recovery, and breach would not occur until plaintiff’s property suffered fire damage and additionally defendant bank refused to compensate plaintiff. Howarth v. First Nat'l Bank, 540 P.2d 486 (Alaska 1975).

Dismissal of the insured’s malpractice lawsuit against the insurance broker was proper because the insurer’s letter put the insured on inquiry notice that he might have a claim against the insurance broker and thus the statute of limitations had begun to run more than three years before the insured sued the insured broker. The insured knew that he was personally incurring defense costs and knew that it was because the insurer on the general liability policy obtained by the insurance broker was not defending him. Christianson v. Conrad-Houston Ins., 318 P.3d 390 (Alaska 2014).

When a buyer of a refinery sued the seller for indemnity for the land's contamination, the claim was not time-barred because (1) the parties' contract provided a delay in notifying the seller did not relieve the seller of the seller's indemnification obligation, and (2) holding the indemnity claim was time-barred would contradict this contractual provision. Flint Hills Res. Alaska, LLC v. Williams Alaska Petro., Inc., 377 P.3d 959 (Alaska 2016).

Client's legal malpractice claim was not time-barred because the claim did not accrue until the client's appreciable injury when the client lost a priority lien against the debtor's property due to an Internal Revenue Service lien and the former attorney's failure to record the client's interest. The client was not appreciably injured when sale documents were signed or when the debtor missed a payment, since the client made an alternative arrangement with the debtor, and suit was filed within the limitations period after the lien was asserted. Jones v. Westbrook, 379 P.3d 963 (Alaska 2016).

Discovery rule. —

Where the evidence indicated that the appellees offered for sale land that they represented to be free of permafrost but in reality the land was not permafrost free, the appellants did not receive the benefit of their bargain, appellants did not discover this fact until they built on the property and problems began to arise, and because the presence of permafrost is not something that they could have ascertained merely by observing the property, the appellants had six years from the time they were cognizant of the permafrost problems to bring their contract causes of action. Bauman v. Day, 892 P.2d 817 (Alaska 1995).

Plaintiffs' claims were time-barred because (1) plaintiffs were on inquiry notice as of May 2009 of their potential cause of action against defendant because, by May 2009, plaintiffs were on notice—by way of, among other things, the exposure to the inventory broker's fraud, the SEC action against the owner and his funds, and the drastic and consistent decline in the trust's value—that they had suffered injury that could have been attributable to the negligence of another, and that an inquiry into the actions of all involved parties was warranted; and (2) the complaint was not filed until more than three years later. 2002 Lawrence R. Buchalter Alaska Trust v. Phila. Fin. Life Assur. Co., 232 F. Supp. 3d 361 (S.D.N.Y.), aff'd, 717 Fed. Appx. 35 (2d Cir. N.Y. 2017).

Superior court erred in granting summary judgment to a seller based on the timeliness of the purchaser's claims because a genuine dispute of material fact existed as to whether it was reasonable for the purchaser to initially attribute the sewer issues to tenant misuse, and the seller did not establish an absence of factual dispute as to when the purchaser's claims accrued under the discovery rule. Miller v. Fowler, 424 P.3d 306 (Alaska 2018).

When statute of limitations begins to run from execution of demand note. —

Paper payable on demand is due immediately, so an action may be brought at any time after date and delivery of the note without any further demand than the suit, so that the statute of limitations begins to run from its date. North Am. Trading & Transp. Co. v. Byrne, 4 Alaska 26 (D. Alaska 1910).

A promissory note, payable on demand, becomes due immediately and the statute of limitations commences to run on the date of its execution. Backland v. Ferguson, 11 Alaska 348 (D. Alaska 1947).

The rule that paper payable on demand is due immediately may not apply where there is something on the paper, or in the circumstances under which it is given, to show that it was not the intention that it should become due immediately. North Am. Trading & Transp. Co. v. Byrne, 4 Alaska 26 (D. Alaska 1910).

Monthly breach of continuing contract. —

A failure to make monthly payments in a contract which requires continuing performance results in a new breach every month, and the limitations period runs against each monthly right of action separately, where there is no evidence of conduct by the defendant which rises above mere noncompliance with contractual obligations, and the defendant thus fails to repudiate the agreement by his conduct. Trs. ex rel. for Alaska Laborers-Construction Indus. Health & Sec. Fund v. Ferrell, 812 F.2d 512 (9th Cir. Alaska 1987).

Presumption of death of insured. —

Where an insurance beneficiary relies upon the statutory presumption of death arising from the insured’s disappearance, the applicable six-year statute of limitations period for actions on contracts begins to run on the date the presumptive death period expires. Moreover, it is reasonable to presume a demand for payment under the policy and an immediate rejection by the insurer on the date the presumptive death period expires. Carman v. Prudential Ins. Co., 748 P.2d 743 (Alaska 1988).

III.Implied Contracts

Quasi-contractual recovery. —

Quasi-contractual recovery is an implied contract for the purpose of applying statutes of limitation. Estate of Waters v. Hoadley, 474 P.2d 85 (Alaska 1970).

Relief from duressed contract. —

In seeking relief from a duressed contract, the action is on an implied contract under the six-year statute of limitations. Estate of Waters v. Hoadley, 474 P.2d 85 (Alaska 1970).

Legal malpractice. —

Where a client sued his attorney for malpractice, claiming that the attorney expressly promised to move his case to trial expeditiously and to keep him informed, the essence of the claim was in contract, and the contract limitations period of this section [former AS 09.10.050 ] applied. Jones v. Wadsworth, 791 P.2d 1013 (Alaska 1990).

Claims were time-barred by the six-year statute of limitations under a former version of this section [former AS 09.10.050 ]; professor knew of the facts upon which he based his malpractice claim prior to March 26, 1996, six years before he filed his complaint, and the only retaliation claim he could have raised at the grievance hearing related to the university’s denial of his request for a raise, which was not an issue in the appeal. Sengupta v. Wickwire, 124 P.3d 748 (Alaska 2005).

Quoted in

Laybourn v. City of Wasilla, 362 P.3d 447 (Alaska 2015).

I.General consideration

The policy of the law is to allow a reasonable but definitely limited time for the bringing of an action, after which the matter is put to rest. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).

Purpose of statute of limitations. —

The goal of the statute of limitations and the substituted service procedure is to provide speedy adjudication of claims. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).

The purpose of statutes of limitations is to encourage promptness in the prosecution of actions and thus avoid the injustice which may result from the prosecution of stale claims. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971); McCracken v. Davis, 560 P.2d 771 (Alaska 1977); Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978).

Statutes of limitations attempt to protect against the difficulties caused by lost evidence, faded memories, and disappearing witnesses. McCracken v. Davis, 560 P.2d 771 (Alaska 1977).

This section reflects a state policy that a plaintiff’s commencement of action is the affirmative step necessary to assure that his assertion of a claim is timely. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978); DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978).

This section and AS 09.55.580 compared. —

While an action for wrongful death is statutory, there is no legislative intent to treat it differently from common law tort actions. Thus, where the disability of a minor tolls the running of the statute of limitations in tort actions, the disability tolls the running of the 2-year time limit for commencing a wrongful death action. Haakanson v. Wakefield Seafoods, 600 P.2d 1087 (Alaska 1979).

Division of marital property. —

Wife’s action for post-judgment division of property was not barred by the statute of limitations because she filed a motion to further adjudicate an already existing action, consistent with AS 25.24.160(a)(4) , which allows post-decree divisions of property any time after judgment. Schaub v. Schaub, 305 P.3d 337 (Alaska 2013).

Action for interference with contract rights. —

Alleged acts of interference with contract rights were one-time occurrences, even though they might have continuing consequences; in determining the time from which the period of limitations is measured, such acts were not analogous to a continuing trespass or nuisance, where repeated and continued tortious acts are committed. Blake v. Gilbert, 702 P.2d 631 (Alaska 1985), overruled, Bibo v. Jeffrey's Restaurant, 770 P.2d 290 (Alaska 1989).

Action barred. —

In a case in which the claims accrued in May 2009 and the complaint was filed on September 7, 2012, the negligence claims were untimely under AS § 09.10.070(a) and the malpractice claims were untimely under AS § 09.10.053. 2002 Lawrence R. Buchalter Alaska Trust v. Phila. Fin. Life Assur. Co., 717 Fed. Appx. 35 (2d Cir. N.Y. 2017).

Suit for breach of implied duty in construction contract. —

This section was applicable to a suit against an electrical contractor alleging breach of an implied duty to perform a restaurant construction contract in a workmanlike manner. St. Paul Fire & Marine Ins. Co. v. Sauer Elec., Inc., 648 F. Supp. 959 (D. Alaska 1986).

Actions for breach of a fiduciary duty arising out of professional service relationships which primarily involve economic injury, because the duty allegedly breached does in part arise from the contract, are governed by AS 09.10.050 and not this section. Lee Houston & Assoc. v. Racine, 806 P.2d 848 (Alaska 1991).

Lapses by law firm. —

Limitations period for spoliation and fraudulent conveyance claims asserted against a law firm in connection with breach of fiduciary duty in a legal malpractice claim was the three-year statute for contract claims, not the residual two-year statute for tort claims. Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264 (Alaska 2013).

Defective pleadings. —

A genuine issue of material fact existed where there was credible evidence that the complainant filed his complaint while he was incarcerated, even though there were technical deficiencies, before the statute of limitations ran. Richardson v. Municipality of Anchorage, 360 P.3d 79 (Alaska 2015).

Actions for illegal distribution of dividends. —

Action by shareholders for illegal distribution of dividends was contractual in nature and therefore the statute of limitations for the action was controlled by AS 09.10.050 and not by this section. Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997).

Negligent title action. —

An action against a real estate attorney and a title agency for negligent title research and disclosure is a professional negligence or malpractice action governed by the six-year statute of limitations of AS 09.10.050 , not the two-year statute of limitations of this section. AS 09.10.050 generally applies to professional malpractice actions claiming economic loss, while this section applies to malpractice causing personal or reputational injury. Breck v. Moore, 910 P.2d 599 (Alaska 1996), overruled in part, Burton v. Fountainhead Dev., Inc., 393 P.3d 387 (Alaska 2017).

Action under federal Civil Rights Act. —

Statute of limitations for a civil rights action by a state employee challenging his discharge is two years, since, if Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), is applied retroactively, the applicable period would be the two-year period for personal injury actions, and, if it is not applied retroactively, the applicable period would be the two-year period governing actions founded on a liability created by statute. DeNardo v. Murphy, 781 F.2d 1345 (9th Cir. Alaska), cert. denied, 476 U.S. 1111, 106 S. Ct. 1962, 90 L. Ed. 2d 648 (U.S. 1986).

Action for alleged discrimination. —

Where plaintiff was aware of the alleged discrimination and the need to assert his rights, his claims regarding salary disparity and denial of sick leave were barred by the statute of limitations. Sengupta v. Univ. of Alaska, 21 P.3d 1240 (Alaska 2001), cert. denied, 534 U.S. 1135, 122 S. Ct. 1081, 151 L. Ed. 2d 981 (U.S. 2002).

Insurance adjusters not required to advise on applicability of statutes of limitations. —

Insurance adjusters, as a matter of law, are not required to give advice in regard to the potential applicability of statutes of limitations. Groseth v. Ness, 421 P.2d 624 (Alaska 1966).

Trespass claim. —

Two-year “tort” statute of limitation set forth in this section did not apply to claims brought by an insurer against three companies that were responsible for an explosion that damaged an insured home; rather, the six-year “trespass” statute of limitations set forth in AS 09.10.050 governed the insurer’s claims. State Farm Fire & Cas. Co. v. White-Rodgers Corp., 77 P.3d 729 (Alaska 2003).

Petroleum contamination injuries. —

Negligence and strict liability claims for injuries to real property caused by petroleum contamination alleged “trespass upon real property,” and were subject to the six-year limitations period of AS 09.10.050 , not the limitations period of this section. McDowell v. State, 957 P.2d 965 (Alaska 1998).

Applied in

Lillegraven v. Tengs, 375 P.2d 139 (Alaska 1962); State v. Baker, 393 P.2d 893 (Alaska 1964); Alaska Airlines, Inc. v. Lockheed Aircraft Corp., 430 F. Supp. 134 (D. Alaska 1977); Kodiak Elec. Ass'n v. Delaval Turbine, 694 P.2d 150 (Alaska 1984); Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); Demoski v. New, 737 P.2d 780 (Alaska 1987); In re Glacier Bay, 746 F. Supp. 1379 (D. Alaska 1990).

Quoted in

Maier v. City of Ketchikan, 403 P.2d 34 (Alaska 1965); Adkins v. Nabors Alaska Drilling, 609 P.2d 15 (Alaska 1980); Norman v. Nichiro Gyogyo Kaisha, Ltd., 645 P.2d 191 (Alaska 1982); King v. First Nat'l Bank, 647 P.2d 596 (Alaska 1982); Shiffman v. "K", Inc., 657 P.2d 401 (Alaska 1983); Bibo v. Jeffrey's Restaurant, 770 P.2d 290 (Alaska 1989); Jones v. Wadsworth, 791 P.2d 1013 (Alaska 1990); Lord v. Fogcutter Bar, 813 P.2d 660 (Alaska 1991); Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991); Bauman v. Day, 892 P.2d 817 (Alaska 1995).

Zwiacher v. Capstone Family Med. Clinic, LLC, 476 P.3d 1139 (Alaska 2020).

Stated in

FDIC v. Laidlaw Transit, Inc., 21 P.3d 344 (Alaska 2001); Erkins v. Alaska Tr., LLC, 265 P.3d 292 (Alaska 2011); Sellers v. Kurdilla, 377 P.3d 1 (Alaska 2016).

Cited in

Barrow Development Co. v. Fulton Ins. Co., 418 F.2d 316 (9th Cir. Alaska 1969); Robertson v. Seidman & Seidman, 609 F.2d 583 (2d Cir. N.Y. 1979); Bendix Corp. v. Adams, 610 P.2d 24 (Alaska 1980); City of Valdez v. Copper Valley Elec. Ass'n, 740 P.2d 462 (Alaska 1987); Evron v. Gilo, 777 P.2d 182 (Alaska 1989); Cameron v. State, 822 P.2d 1362 (Alaska 1991); Hernandez-Robaina v. State, 849 P.2d 783 (Alaska 1993); Howell v. Ketchikan Pulp Co., 943 P.2d 1205 (Alaska 1997); Moore v. Allstate Ins. Co., 995 P.2d 231 (Alaska 2000); Brown v. Ely, 14 P.3d 257 (Alaska 2000); Hutton v. Realty Execs., Inc., 14 P.3d 977 (Alaska 2000); Hebert v. Bingo, 18 P.3d 43 (Alaska 2001); John's Heating Serv. v. Lamb, 46 P.3d 1024 (Alaska 2002); Evans v. State, 56 P.3d 1046 (Alaska 2002); Sengupta v. Wickwire, 124 P.3d 748 (Alaska 2005); Williams v. Williams, 129 P.3d 428 (Alaska 2006); Sands v. Green, 156 P.3d 1130 (Alaska 2007); Egner v. Talbot's, Inc., 214 P.3d 272 (Alaska 2009); 2021 Alas. LEXIS 111.

II.Torts

A.In General

Construction as tort statute. —

This section is generally considered by Alaska courts to be a “tort” statute. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

By its own terms, this section extends to, but not beyond, personal torts unless the action is for an injury to the “rights of another not arising on contract and not specifically provided for otherwise.” Thus, for claims that do not involve personal, reputational, or injury to dignity, the right(s) allegedly infringed upon must “not aris[e] on contract.” Lee Houston & Assoc. v. Racine, 806 P.2d 848 (Alaska 1991).

This section is a “residual” statute in that it governs all claims for injury to the person unless “specifically provided otherwise” in some other statute. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

A tort action must be commenced within two years after the cause of action has accrued. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

The uniform limitations period impliedly allows every victim of tortious conduct in Alaska, regardless of where he resides and regardless of whether the alleged tortious conduct was by a governmental unit or not, to commence an action for damages within two years without complying with any other time limit. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978); DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978).

Where husband admitted his wife to a hospital for mental evaluation, dismissal of husband’s action alleging that he suffered emotional distress caused by the medical center’s release of his wife to her daughter was appropriate as the two-year statute of limitations barred the husband’s tort claims. The husband learned that his wife had been released to her daughter when he called the hospital on March 31, 2003 and he failed to file his complaint until March 31, 2006. Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148 (Alaska 2009).

Commencement when tort complete. —

The statute of limitation as to torts does not usually begin to run until the tort is complete. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

When tort complete. —

A tort is ordinarily not complete until there has been an invasion of a legally protected interest of the plaintiff. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

Not necessary to know full extent of injuries. —

Where the employee in a toxic tort case had sufficient knowledge to prompt an inquiry into his cause of action before the statute of limitations expired, it was irrelevant that the full extent of his injuries did not become apparent until later, and under the discovery rule his claim was time barred. Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265 (Alaska 2001).

Municipalities prohibited from requiring shorter notice period for tort claims. —

AS 09.65.070 , authorizing actions against municipalities, impliedly prohibits municipalities from requiring a potential plaintiff to submit notice of tort claims, as a condition to bringing an action, within a period shorter than the period provided by the statute of limitations. Johnson v. City of Fairbanks, 583 P.2d 181 (Alaska 1978); DeHusson v. City of Anchorage, 583 P.2d 791 (Alaska 1978).

Applicability. —

The statute of limitations for tort actions does not apply to claims for equitable apportionment that are filed in accordance with Civil Rule 14(c). Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98 (Alaska 2000).

Takings claim by salmon fishers based on damage to value of entry permits from regulatory changes did not fall under the two-year statute of limitations for taking or injuring personal property in this section because the case involved state action, not private action. Vanek v. State, 193 P.3d 283 (Alaska 2008).

Employee sued the United States and the United States filed a third-party complaint for apportionment against architects; summary judgment was granted to the United States and the architects; and the employee then filed a direct action against the architects. The employee’s action was untimely, because the Grinnell standard allowed apportionment claims to be raised in the same action outside the two-year tort statute of limitations, while preserving that two-year limitation for direct actions. Janitscheck v. United States, 45 Fed. Appx. 809 (9th Cir. Alaska 2002) (memorandum decision).

Superior court erred in granting partial summary judgment to a member of an LLC and in finding that the statutes of limitation barred a second member's counterclaims because the second member’s counterclaims were compulsory, they were “logically related,” and automatically related back to the first member's 2013 cross-claims, the first member's pleadings related back to his 2007 original cross-complaint since they focused on the transactions or occurrences that caused the LLC’s losses, and the relation back to the 2007 cross-complaint allowed the second member to “escape the bar of the statutes of limitations.” Baker v. Duffus, 441 P.3d 432 (Alaska 2019).

Construed with tolling statutes. —

In a products liability action, neither three days’ bedrest necessitated by plaintiff’s injuries nor plaintiff’s incarceration approximately one year after the accident in question tolled the statute of limitations. Thus plaintiff’s complaint, filed two years and one day after plaintiff sustained injuries, was not timely filed. Yurioff v. American Honda Motor Co., 803 P.2d 386 (Alaska 1990).

Action for unlawful imprisonment. —

Allegation that defendant in his capacity as United States attorney caused plaintiff to be arrested on criminal complaints sworn out by codefendants “without probable cause or investigation” purports to state a claim in tort against defendant subject to a two-year period of limitation under this section. Williams v. Coughlan, 244 F.2d 6, 17 Alaska 147 (9th Cir. Alaska 1957).

Action to enforce liability of third person under Workers’ Compensation Law. —

From the express language of the Workers’ Compensation Law as to liability of third persons, the right sought to be enforced is based on tort rather than on contract and this section is therefore the applicable statute of limitations. Dierks v. Alaska Air Transp., 109 F. Supp. 695, 14 Alaska 159 (D. Alaska 1953).

Wrongful interference with right to preserve dead body. —

There is a claim for relief for wrongful interference with the right to preserve a dead body. Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972).

A claim for relief for wrongful interference with the right to preserve a dead body belongs exclusively to the surviving spouse or to the next of kin of the decedent. This substantive right is in the surviving spouse or next of kin, whether the claim is analyzed as a tortious invasion of a property right or infliction of emotional harm. Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972).

It is generally the law in this country that the right to possess, preserve, and bury, or otherwise dispose of a dead body belongs to the surviving spouse and, if none such, then to the next of kin in the order of their relation to the decedent; that a violation of that right is a tort; and that damages for mental suffering are recoverable for a willful invasion of the rights relating to dead bodies. Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972).

Personal injuries resulting from breach of warranty in sale of goods. —

In an action to recover damages for personal injuries resulting from an alleged breach of warranty in the sale of goods, the two-year statute of limitations for personal injury actions does not apply. Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971).

Where an action is correctly brought within the framework of the Uniform Commercial Code, the applicable statute of limitations is that provided by the Code, although the damages sought are for personal injuries. Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971).

By the repealer section provided by the Alaska legislature in enacting the Uniform Commercial Code (Sec. 10.103, ch. 114, SLA 1962) providing in part that “. . . all acts and parts of acts inconsistent with this Act are hereby repealed,” the general two-year statute of limitations (this section) was repealed to the extent that it might otherwise control recovery for personal injuries resulting from breach of warranty under the Code. Sinka v. Northern Commercial Co., 491 P.2d 116 (Alaska 1971).

Medical malpractice claim. —

The six-year statute of limitations provided for in AS 09.10.050 was inapplicable towards a claim for noneconomic injuries arising out of the doctor’s professional malpractice; rather, the claim was governed by the two-year statute of limitations for injuries to the person not arising on contract as contained in this section. Pedersen v. Flannery, 863 P.2d 856 (Alaska 1993).

Trial court's grant of summary judgment to the periodontist in a malpractice action was proper because once the patient was on inquiry notice, he had a duty to investigate all potential causes of action before the statute of limitations expired, including a claim for malpractice based on misdiagnosis or misinformation. The patient did investigate such claims before the statute of limitations expired; he knew of the alleged misdiagnosis and misinformation and had over a year to file within the statute of limitations. Arnoult v. Webster, 480 P.3d 592 (Alaska 2020).

Sex discrimination. —

Plaintiff’s federal and state law discrimination claims against the municipality were barred by Alaska’s two-year tort statute of limitations since the statute of limitations began to run in 1983, when the municipality denied plaintiff admission to the police academy and she had notice of all facts which reasonable inquiry would disclose, rather than in 1985, when she first became aware of circumstances allegedly indicating that the municipality’s acts constituted illegal discrimination. Russell v. Municipality of Anchorage, 743 P.2d 372 (Alaska 1987).

Action against bank official by depositor for conversion. —

Action against bank official for conversion of payroll checks endorsed by plaintiff for deposit to his bank account and for passing forged checks written on plaintiff’s account was governed by six-year statute of limitations in AS 09.10.050 rather than two-year statute of limitations in this section. Vest v. First Nat'l Bank, 659 P.2d 1233 (Alaska 1983).

Slipping on ice as breach of implied contractual duty. —

Where, in a suit for injuries suffered by plaintiff when she slipped and fell on ice which had accumulated near the entrance to a lodge where she had been a paying guest, plaintiff contended that she was injured by reason of defendants’ breach of their implied contractual duty as innkeepers to keep their premises in reasonably safe condition for their guests and, therefore, that the six-year statute of limitations should control, it was held that the controlling statute of limitations was the two-year statute governing tort actions, and not the six-year statute relating to actions on contract. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

Mining claims. —

Plaintiffs’ claims of intentional dilution of ore and unworkmanlike mining arose out of alleged injuries to plaintiffs’ personal and real property, and were governed by AS 09.10.050 , not this section, which deals with tort claims. McKibben v. Mohawk Oil Co., 667 P.2d 1223 (Alaska 1983).

Conversion action against police department. —

The limitations periods of paragraph (a)(2) of this section and AS 09.10.060(b) did not apply to an action for conversion against a police department based on the disposition of seized property prior to a forfeiture proceeding under AS 17.30.116 . Toney v. City of Anchorage Police Dep't, 950 P.2d 123 (Alaska 1997).

A citizen's conversion complaint against a municipality alleging a failure to return the citizen's seized property despite a federal court order was not time-barred because, reading the complaint in the citizen's favor, and given complex facts, (1) the citizen supported a claim of numerous inquiries to discover the status of the property and claims, (2) showed myriad and complex factual allegations and the fact-specific nature of whether the citizen had actual or implied notice and reasonably inquired, and (3) the complaint was filed within the limitations period after a federal judge's order finding the dispute was with the municipality. Jackson v. Municipality of Anchorage, 375 P.3d 1166 (Alaska 2016).

No continuing violation. —

Parolee’s damages claims were barred by the two-year period of limitations, and the continuing violations doctrine did not apply because the lawsuit was not based on any defect particular to the early release proceedings but on the theory that the Alaska Board of Parole never had the authority to condition the parole, which was the same argument the parolee made in his application for post-conviction relief. Hertz v. Schmidt, — P.3d — (Alaska Dec. 23, 2015) (memorandum decision).

Claims barred. —

Where workers’ compensation insurance carrier paid benefits to employee and became subrogated by operation of law to employee’s rights to all defenses which alleged tort-feasor could have raised against employee, the carrier’s failure to sue within two years of accident was a bar to its claim. Providence Wash. Ins. Co. v. De Havilland Aircraft Co., 699 P.2d 355 (Alaska 1985).

Parolee’s damages claims were barred by the two-year period of limitations because the statute of limitations began to run when the parolee was actually released subject to the mandatory parole conditions the Alaska Board of Parole had placed on him, but the parolee waited until almost three years later to file his suit. Hertz v. Schmidt, — P.3d — (Alaska Dec. 23, 2015) (memorandum decision).

Dismissal of a lawsuit was appropriate because the statute of limitations was not tolled due to the complainant’s alleged mental incompetency and separation from the complainant’s legal documents during an unrelated incarceration. Moreover, the superior court was not required to appoint the complainant an attorney, or more liberally construe the complainant’s pro se pleadings. Richardson v. Municipality of Anchorage, 360 P.3d 79 (Alaska 2015).

B.Strict Liability

Exclusive time limit. —

There is no other statute specifically limiting the period for bringing strict liability claims. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

Application to strict liability reasonable. —

To require strict liability claims to be brought within two years is a reasonable interpretation of the public policy of Alaska. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

Although the genesis of strict liability lies in warranty theory, it is now clear that breach of warranty itself was originally considered a species of fraud or misrepresentation, sounding in tort. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

Even in its present form, strict liability is more nearly akin to tortious negligence than to contractual warranty, because no contract is required and because strict liability may not be disclaimed. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

Longer limitation allowed those in privity with defendant. —

There are valid reasons for allowing a longer limitation period under AS 45.05.242 [now AS 45.02.725 ], to plaintiffs who have contracted with the defendant, or who otherwise satisfy the privity requirement, than to those who have not. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

Reasons for allowing longer limitation period to plaintiffs contracting with the defendant. —

Because a seller has not had an opportunity to bargain for a shorter limitation period with persons who lack privity of contract with him, it would be inappropriate to give such persons the benefit of the same longer statute of limitations governing those persons who have bargained and contracted with the seller. Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D. Alaska 1973).

Cause of action based on damage to a generator due to engine failure was barred by the two-year statute of limitations applicable to “economic loss” caused by a defective product. Northern Power & Eng'g Corp. v. Caterpillar Tractor Co., 623 P.2d 324 (Alaska 1981), disapproved, East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (U.S. 1986).

Liability for release of a hazardous substance.

When a buyer of a refinery brought strict liability and contribution claims against the seller for the land's contamination, the claims were time-barred as to damage to the land on which the refinery was located because the two-year statute of limitations in AS 09.10.070(a) applied, as no trespassory claim was involved. Flint Hills Res. Alaska, LLC v. Williams Alaska Petro., Inc., 377 P.3d 959 (Alaska 2016).

C.Misrepresentation and Negligence

Tort concepts. —

Misrepresentation and negligence are tort concepts, not contract, and the two-year statute of limitation (this section) respecting torts governs. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

Negligent misrepresentation is a tort falling under the two-year statute of limitations. Estate of Waters v. Hoadley, 474 P.2d 85 (Alaska 1970).

A cause of action for misrepresentation in a business transaction is complete when the injured person has been deprived of his property or otherwise has suffered pecuniary loss or has incurred liability as a result of a misrepresentation. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

Where the essence of a plaintiff’s complaint in an action for legal malpractice was negligence, the period of limitation found in this section, rather than AS 09.10.050 , applied. Van Horn Lodge v. White, 627 P.2d 641 (Alaska 1981), overruled, Lee Houston & Assoc. v. Racine, 806 P.2d 848 (Alaska 1991).

Action held not barred. —

Mechanical services company’s misrepresentation claim was not barred by the statute of limitations, because the Uniform Commercial Code financing statements filed by the bank did not provide constructive notice of the elements of a claim for statute of limitations purposes. Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503 (Alaska 2015).

Alaska Office of Children's Services (OCS) was not entitled to summary judgment under the two-year statute of limitations because a genuine issue of material fact existed as to when a claimant discovered the claimed negligence by the OCS in allegedly allowing the claimant to suffer years of sexual abuse while in foster care and after adoption. At the very least, an evidentiary hearing was required to resolve the dispute. Reasner v. State, 394 P.3d 610 (Alaska 2017).

Legal malpractice. —

This section is the proper statute to be applied in attorney malpractice actions based on negligence. Greater Area, Inc. v. Bookman, 657 P.2d 828 (Alaska 1982).

Statute of limitations for legal malpractice does not begin to run until client discovers, or reasonably should discover, existence of all elements of his cause of action; thus, if client discovers his attorney’s negligence before he suffers consequential damages, the statute of limitations will not begin to run until client suffers actual damages. Greater Area, Inc. v. Bookman, 657 P.2d 828 (Alaska 1982).

It is not necessary that the client suffer all of the damages caused by the attorney’s malpractice before the statute of limitations begins to run, nor is it necessary that the client know the full extent of his damages. Wettanen v. Cowper, 749 P.2d 362 (Alaska 1988).

Former inmate's medical malpractice claim against correctional officials was time-barred because the former inmate was aware of the claim more than two years before the former inmate sued. Wright v. Anding, 390 P.3d 1162 (Alaska 2017).

Negligent failure to procure earthquake coverage. —

Where plaintiff’s claim based upon defendant’s negligent failure to procure or issue earthquake coverage, and plaintiff’s claim based upon defendant’s negligent misrepresentations, did not ripen until the earthquake loss occurred in March 1964, the statute of limitation did not commence to run until that time, and plaintiff’s action, instituted in February of 1966, was brought within the two-year statutory period. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

Where plaintiff’s interest was in being protected against earthquake loss, there was no invasion, or infringement upon, or impairment of such interest until there had been a loss by earthquake, because until that event occurred such protection could avail the plaintiff nothing. His interest, which is legally protected, was in having such protection when it was needed, at the time of the loss and not before. Thus, there must be an injury or harm to plaintiff as a consequence of defendant’s negligence to serve as a basis for recovery of damages before the tort becomes actionable and before the period of limitation commences to run. Austin v. Fulton Ins. Co., 444 P.2d 536 (Alaska 1968).

Failure to warn or repair. —

Customers’ 1995 action, alleging that company failed to repair their furnace or warn them of the dangers it posed, was timely where it could not be said that the customers were on inquiry notice before early 1993. John's Heating Serv. v. Lamb, 129 P.3d 919 (Alaska 2006).

Intentional misrepresentation. —

The two-year limitation of this section, not AS 09.10.050 , applied to a tort claim for intentional misrepresentation. Alaska Tae Woong Venture v. Westward Seafoods, 963 P.2d 1055 (Alaska 1998).

D.Libel

When period of limitations commences. —

Normally the period of limitations for libel begins to run when the libel is “published.” Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

“Publication” requires communication to a third party. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

Courts have differed on exactly when publication occurs. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

When publication occurred. —

Where defendant wrote a letter to plaintiff’s employer accusing plaintiff of conduct which was “highly unethical and a gross impropriety”, and a week later the employer wrote a letter to defendant in which he acknowledged that he had received the letter, “publication” of the alleged libel occurred on the date the employer wrote his reply. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

For a libel action predicated upon allegedly defamatory affidavits filed pursuant to the dismissal of a criminal prosecution against plaintiff, the statute of limitations began to run on the date the affidavits were filed with the court and released to the press, or at the latest the date of the newspaper article reporting them, even though there were subsequent publications. McCutcheon v. State, 746 P.2d 461 (Alaska 1987).

III.Forfeiture or Penalty to State

Item (2) [now (a)(2)] of this section deals with civil penalties. State v. American Can Co., 362 P.2d 291 (Alaska 1961), overruled in part, Alascom, Inc. v. North Slope Borough, 659 P.2d 1175 (Alaska 1983).

Action to forfeit contraband. —

Since a forfeiture action is independent of any other criminal proceedings, this can only mean an action must be brought within two years of the seizure. United States v. Three Thousand Two Hundred Thirty-Six Dollars, 167 F. Supp. 495 (D. Alaska 1958).

Where money was seized in a gambling raid on September 11, 1955, and the libel in rem filed on December 12, 1957, the libel was barred by this section. United States v. Three Thousand Two Hundred Thirty-Six Dollars, 167 F. Supp. 495 (D. Alaska 1958).

IV.Other Statutory Liability

Tax refunds. —

The liability of a municipality for a tax refund is a liability created by statute, and falls within the express language of subsection (3) [now (a)(3)]. Kenai Peninsula Borough v. Port Graham Corp., 871 P.2d 1135 (Alaska 1994).

Breach of collective bargaining agreement. —

A claim based upon plaintiff’s failure to be paid at a rate commensurate with the work he was doing and in violation of AS 23.05.140(b) , as to payment of wages on termination of employment, is not strictly or solely an action for liability upon a statute, but may be construed to state a cause of action for breach of the collective bargaining agreement. As such, it is controlled by the six-year statute of limitations for contract actions, AS 09.10.050 , and the superior court erred in dismissing the count based upon the running of the two-year statute of limitations for actions based upon paragraph (3) [now (a)(3)] of this section. Reed v. Municipality of Anchorage, 741 P.2d 1181 (Alaska 1987); Quinn v. State Employees Ass'n/AFSCME, 944 P.2d 468 (Alaska 1997).

Plaintiff’s breach of contract action was not covered by the six-month statute in the National Labor Relations Act because, when an employee only sues the employer for breach of a collective bargaining agreement, the state statute of limitation for contract actions applies. Quinn v. State Employees Ass'n/AFSCME, 944 P.2d 468 (Alaska 1997).

Liability for release of hazardous substance. —

When a buyer of a refinery brought strict liability and contribution claims against the seller for the land’s contamination, the claims were time-barred as to damage to the land on which the refinery was located because the two-year statute of limitations in AS 09.10.070(a) applied, as no trespassory claim was involved. Flint Hills Res. Alaska, LLC v. Williams Alaska Petro., Inc., 377 P.3d 959 (Alaska 2016).

Borough’s levy of past years’ taxes. —

Six-year statute of limitations provided for in AS 09.10.120 , rather than two-year limitation provided for in AS 09.10.070(a)(3) was applicable to borough’s efforts to levy past years’ taxes. Alascom, Inc. v. North Slope Borough, 659 P.2d 1175 (Alaska 1983).

Recovery of back pay for discrimination under the Equal Pay for Women Act is limited to that earned within two years prior to commencement of her suit. Brown v. Wood, 575 P.2d 760 (Alaska 1978), modified, 592 P.2d 1250 (Alaska 1979).

Claim of sexual harassment. —

Employee, who alleged that she was wrongfully discharged because she claimed that she was sexually harassed, failed to show any evidence that the harassment occurred within two years of filing the complaint. Mahan v. Arctic Catering, Inc., 133 P.3d 655 (Alaska 2006).

V.Procedure

A.In General

When statutory period commences. —

Statute of limitations does not begin to run until the claimant discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action. Dalkovski v. Glad, 774 P.2d 202 (Alaska 1989).

In a case that arose from a fire at the insured’s home, the statute of limitations began running when the insurance investigator sent his letter to the insured explaining the denial of his claim. Kaiser v. Umialik Ins., 108 P.3d 876 (Alaska 2005).

Amendment related back to date of original complaint. —

Since the amendment adding parties plaintiff related back to the date of the original complaint, the two-year tort statute of limitations was no bar to prosecution of the claim for relief. Burns v. Anchorage Funeral Chapel, 495 P.2d 70 (Alaska 1972).

Where an amendment to a complaint did not state a new claim for relief but related back to the date of the original complaint, it was not barred by the statute of limitations. Jakoski v. Holland, 520 P.2d 569 (Alaska 1974).

Amended complaint substituting a named person for a “John Doe” defendant in an action against the state and two state troopers properly related back to the date of the original complaint, where constructive notice could be imputed to the previously unidentified trooper through his counsel, the state attorney general’s office, which represented all of the defendants from the outset. Farmer v. State, 788 P.2d 43 (Alaska 1990).

Amendments to pleadings. —

Where the defendants had referred in pleadings to the “plaintiff’s loss of society claim,” had acknowledged that the plaintiff was “almost certainly claiming damages” for pain and suffering in her individual capacity, and had investigated the plaintiff’s individual loss of society claim, the defendants were aware of the plaintiff’s individual loss claim, and the superior court did not err in granting the plaintiff’s motion to amend the complaint to add herself in her individual capacity as a plaintiff. Ardinger v. Hummell, 982 P.2d 727 (Alaska 1999).

Cross-claim related back to date of original complaint. —

Cross-claim filed more than two years after the cause of action arose but less than two years after the original answer was filed related back to when the original answer was filed and was not barred by this section. Estate of Thompson v. Mercedes-Benz, 514 P.2d 1269 (Alaska 1973).

Compulsory counterclaim related back to date of original complaint. —

Ex-boyfriend’s defamation counterclaim was not time-barred under this section where the counterclaim was compulsory under Alaska R. Civ. P. 13(a) and, as such, related back to the date of the complaint. MacDonald v. Riggs, 166 P.3d 12 (Alaska 2007).

Addition of defendant after expiration of statute of limitations. —

Trial court did not abuse its discretion in finding that Alaska case law did not mandate the addition of a party defendant after the expiration of the applicable statute of limitations. McCracken v. Davis, 560 P.2d 771 (Alaska 1977).

Addition by plaintiff of a new party by means of a “cross claim” against a defendant in another action (brought by a different plaintiff) which was consolidated with the instant action did not relate back to first plaintiff’s original complaint where the first plaintiff failed to show that he had made a true mistake regarding the identity or name of the new party. Atkins v. DeHavilland Aircraft Co., 699 P.2d 352 (Alaska 1985).

Claim not barred. —

Where the last day for the running of the statute of limitations fell on a Saturday, when the court was closed, and the following Monday was a legal holiday, the claim which was filed on the next Tuesday was not barred by the statute of limitations. David v. Sturm, Ruger & Co., 557 P.2d 1133 (Alaska 1976).

Where employee was terminated on Wednesday, March 31, 1982, under AS 23.05.140(b) employer had until Monday, April 5, 1982, three working days after it terminated him, to pay him his due compensation, and the employee would have two years — until April 5, 1984 — to bring suit on his claim of violation of AS 23.05.140(b) under AS 09.10.070 (3) [now (a)(3)]. Since he filed his complaint on April 2, 1984, that part alleging that employer violated AS 23.05.140(b) was timely filed. Reed v. Municipality of Anchorage, 741 P.2d 1181 (Alaska 1987).

Boat owner’s products liability cause of action accrued on the date the boat sank, not on a previous date when a boat surveyor inspected the boat and expressed concern that the hull was too thin, and therefore the action was not barred by the two-year statute of limitations of this section because nothing in the record suggested that the cracks caused by the boat’s alleged defect, or any other performance failures, manifested themselves prior to the date that the boat sank. Jarvill v. Porky's Equip., Inc., 189 P.3d 335 (Alaska 2008).

Barred claims not revived. —

Plaintiff’s claim, filed approximately six months after he was terminated, for unpaid overtime and a penalty under AS 23.05.140(b) and (d) was timely filed pursuant to this section; however, that filing did not revive Alaska Wage and Hour Act claims that were “forever barred” by AS 23.10.130 . Quinn v. State Employees Ass'n/AFSCME, 944 P.2d 468 (Alaska 1997).

Time-barred. —

What plaintiffs knew about the circumstances of a fire on July 12, 2013, was enough to focus a reasonable person's attention on defendant's fish smoker as a possible cause of the fire and on the possibility that defendant was negligent. The two-year period that began on July 12, 2013, expired on July 12, 2015, and the complaint filed on July 20, 2015, was time-barred under this section. Harrell v. Calvin, 403 P.3d 1182 (Alaska 2017).

Former tenant’s claims against the Alaska Housing Finance Corporation (AHFC) for the AHFC's alleged failure to conduct required inspections, the AHFC employees’ alleged wrongful testimony against the tenant, and the AHFC’s alleged role in the housing authority’s denial of the tenant‘s rental application were barred by the three-year statute of limitations. The tenant should reasonably have discovered the existence of all of the elements of any cause of action by September 2009 when the former landlord obtained the judgment for damages to the apartment but he did not file his claims for over seven years. Robinson v. Alaska Hous. Fin. Corp., 442 P.3d 763 (Alaska 2019).

Time-barred claims of child sexual abuse not revived. —

AS 09.10.065 did not revive civil claims for alleged child sexual abuse by a Catholic priest that were time-barred before the effective date of that section, October 1, 2001. Catholic Bishop of N. Alaska v. Does, 141 P.3d 719 (Alaska 2006).

Equitable estoppel. —

The doctrine of equitable estoppel as a prohibition against unjust reliance upon a statute of limitations is a salutary one and therefore the supreme court adopts the rule for Alaska. Groseth v. Ness, 421 P.2d 624 (Alaska 1966).

Both federal and state authorities have established that the doctrine of equitable estoppel is available as a bar to inequitable reliance upon statutes of limitations. Groseth v. Ness, 421 P.2d 624 (Alaska 1966).

Where plaintiff had reason to sue for the defendant’s failure to procure the type of insurance coverage which it had promised, and defendant allegedly dissuaded it from filing suit by assuring that the loss of the crane was in fact covered under the policy, the reasonableness of plaintiff’s alleged reliance on these promises, and the date when defendant’s conduct ceased to justify further delay in bringing suit, were questions of fact which it was necessary to resolve in order to determine whether equitable estoppel should have been applied. Gudenau & Co. v. Sweeney Ins., 736 P.2d 763 (Alaska 1987).

Where defendant was granted a summary judgment based upon plaintiff’s failure to file a wrongful death action within the time prescribed by this section, trial court’s dismissal of plaintiff’s Rule of Civil Procedure 60(b) motion seeking vacation of defendant’s summary judgment was reversed and remanded to permit plaintiff to argue that, because defendant fraudulently concealed evidence, plaintiff was prevented from showing that defendant should be equitably estopped from asserting the statute of limitations defense. Palmer v. Borg-Warner Corp., 838 P.2d 1243 (Alaska 1992).

In an action by a hemophiliac alleging that he contracted AIDS from a contaminated blood-clotting agent manufactured by defendant, evidence was sufficient to show genuine issues of material fact regarding defendant’s misrepresentation and concealment of the relationship between HIV positive status and AIDS, and plaintiff’s reasonable reliance on such misrepresentation and concealment. Waage v. Cutter Biological Div. of Miles Lab., 926 P.2d 1145 (Alaska 1996).

Tort statute of limitations did not bar a bad faith insurance suit because the insurer did not challenge on appeal the superior court’s ruling that equitable estoppel applied; the insurer’s arguments on the discovery rule were irrelevant. Ennen v. Integon Indem. Corp., 268 P.3d 277 (Alaska 2012).

Customers’ claims against bank were not barred by the statute of limitations; testimony showed that it was not utterly unreasonable for the customers to have relied on a loan officer’s assurances that he would secure new financing for their investment. Accordingly, the bank’s defense was barred by equitable estoppel. Alaska Fur Gallery, Inc. v. First Nat'l Bank Alaska, 345 P.3d 76 (Alaska 2015).

Establishing equitable estoppel. —

To establish equitable estoppel it is generally necessary that the party seeking to assert it show that the other party made some misrepresentation, or false statement, or acted fraudulently, and that he reasonably relied on such acts or representations of the other party, and due to such reliance did not institute suit timely. Groseth v. Ness, 421 P.2d 624 (Alaska 1966).

There is authority to the effect that equitable estoppel requires more than inaction or silence by a person who has no obligation to speak or act. Yet there can be circumstances where inaction or silence combined with acts or representations can give rise to an appropriate situation calling for the application of the estoppel doctrine. Groseth v. Ness, 421 P.2d 624 (Alaska 1966).

A party who fraudulently conceals from a plaintiff the existence of a cause of action may be estopped to plead the statute of limitations if the plaintiff’s delay in bringing suit was occasioned by reliance on the false or fraudulent representations. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

Where plaintiffs were never lulled into a false sense of security by any specific conduct on the part of the defendant implying that the statute of limitations would not be raised, there is no evidentiary basis for invocation of the doctrine of equitable estoppel. Garfield v. Clark, 567 P.2d 777 (Alaska 1977).

Defendants estopped to urge section. —

Repeated promises to pay the taxes in consideration of forbearance by the city from taking legal steps to collect them in reliance upon which the city forbore to take legal action estopped the defendants from urging the statute of limitations. Demmert v. City of Klawock, 199 F.2d 32, 14 Alaska 20 (9th Cir. Alaska 1952).

Defendant not estopped to plead statute. —

Where plaintiff in a libel action argued that he did not seek legal counsel to file an action because he thought the statements would be retracted but knew before the statute of limitations ran that they would not be retracted, defendant was not estopped to plead the statute of limitations because plaintiff’s delay in filing suit was not based on any reliance of the retraction. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

Waiver of statute. —

An escrow agreement as to payment of taxes constituted a waiver of the statute of limitations. Demmert v. City of Klawock, 199 F.2d 32, 14 Alaska 20 (9th Cir. Alaska 1952).

The running of the limitation period is an affirmative defense which if not pled was waived. Municipality of Anchorage v. Sisters of Providence, 628 P.2d 22 (Alaska 1981).

Application of foreign period of limitations. —

Where the foreign limitation qualifies or conditions the right of action, Alaska will apply the foreign period of limitations, even though longer than Alaska’s own period of limitations. Marine Constr. & Design Co. v. Vessel Tim, 434 P.2d 683 (Alaska 1967).

Extent of damages unknown. —

Knowledge of some compensable injury resulting from a sudden traumatic event triggers the statute of limitations even if the full extent of damages is as yet unknown; thus, where plaintiff had notice that she had been injured on the date of the accident, her opportunity to file suit expired two years from that date even though she did not know the extent of her injuries until later. Smith v. Thompson, 923 P.2d 101 (Alaska 1996).

B.Tolling Statute

Commencement of the action interrupts the running of the statute. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

Civil rule controls. —

With respect to the manner of commencing a civil action as it may bear upon the time for commencing the action under a statute of limitations, there is no reason why Civ. R. 3 should not be controlling. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

Definition of “commenced” in Civ. R. 3. —

In Civ. R. 3, which states that “a civil action is commenced by filing a complaint with the court,” is to be found the definition of the term “commenced” as used in statutes of limitations. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

Filing of the complaint tolls the statute of limitations. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

The two-year statute did not constitute a defense to plaintiff’s claim, because the running of the statutory period was interrupted by the filing of her complaint before the expiration of two years from the date of her injury. Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

Employee’s claim for noneconomic damages was not precluded by the statute of limitations because the Human Rights Commission was not empowered to award noneconomic damages; employee filed his claim in superior court approximately nine months after the commission issued its decision, and the claim was equitably tolled during the pendency of the commission proceedings. Beegan v. State, 195 P.3d 134 (Alaska 2008).

But further act of issuing summons does not toll statute. —

Silverton v. Marler, 389 P.2d 3 (Alaska 1964).

Equitable tolling. —

A plaintiff must satisfy three requirements in order to establish his right to pursue an otherwise untimely remedy: (1) His pursuit of the initial remedy must give the defendant notice of the existence of a legal claim against it; (2) the defendant must not be prejudiced in its ability to gather evidence by the bringing of the second claim; and (3) the plaintiff must have acted in good faith. Gudenau & Co. v. Sweeney Ins., 736 P.2d 763 (Alaska 1987).

Courts will not force a plaintiff to simultaneously pursue two separate and duplicative remedies, and where the plaintiff adopts a single course of action which is dismissed or otherwise fails, courts generally allow the plaintiff to pursue a second remedy based on the same right or claim, tolling the limitations period during the pendency of the initial defective action. Gudenau & Co. v. Sweeney Ins., 736 P.2d 763 (Alaska 1987).

The doctrine of equitable estoppel did not bar a safety helmet manufacturer from asserting the statute of limitations as a defense to a drilling company employee’s suit for injuries sustained while wearing a helmet, where although there was enough readily available information to alert the employee to a design problem had he investigated the helmet’s alleged design defects within two years after the accident, he simply did not exercise due diligence by attempting to discover the facts. Mine Safety Appliances Co. v. Stiles, 756 P.2d 288 (Alaska 1988).

Summary judgment was improperly granted to a former employer in a retaliation case based on the two-year limitation period in subsection (a) because equitable tolling applied; the employer had notice, no prejudice was shown, and the employee acted reasonably and in good faith by filing a federal case first. The employee was unable to secure subsequent employment after filing a workers’ compensation case. Solomon v. Interior Reg'l Hous. Auth., 140 P.3d 882 (Alaska 2006).

Transferee court properly dismissed a defamation complaint as untimely as it was filed more than four years after the original article was published, plaintiff's incarceration in another state did not constitute extraordinary circumstances that made it impossible to timely sue, there was no dispute as to when the claim accrued, and thus, equitable tolling did not apply. Giocondo v. Fairbanks Daily News-Miner, — P.3d — (Alaska July 19, 2017) (memorandum decision).

Civil R. 27 petition to perpetuate testimony is not a complaint for the purposes of Rule 3 and the statutes of limitations. Chiei v. Stern, 561 P.2d 1216 (Alaska 1977).

Statutes of limitation aided by substituted service. —

Statutes of limitations attempt to protect against the difficulties caused by lost evidence, faded memories and disappearing witnesses. In the attainment of those ends, substantial aid is provided by statutes establishing substituted service. By this means, the equivalent of personal service is made obtainable on absent defendants. For purposes of lapse of time, Alaska statutes place an absent defendant in a motor vehicle case on an equal plane with those present within the state. Thus, where substituted service is available, the usual statute of limitations should apply untolled. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).

Effect of substituted service. —

A tolling provision will not operate to suspend a statute of limitations when substituted service is available in an auto accident case. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).

To apply the tolling statute (AS 09.10.130 ) to a situation where the defendant is at all times amenable to service is repugnant to the general purposes of statutes of limitations. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).

In cases arising from motor vehicle accidents in which the defendant subsequently leaves the state, AS 09.05.020 operates in conjunction with AS 09.05.040 to authorize service upon an absent defendant by serving the commissioner of public safety. Pursuant to these provisions, the commissioner of public safety is, as a matter of law, appointed as defendant’s statutory agent so that service upon him is of the same effect and validity as personal service upon the defendant. Byrne v. Ogle, 488 P.2d 716 (Alaska 1971).

Absence from state. —

Couple’s tort claims arising from an automobile accident were time-barred where the absence provisions of AS 09.10.130 did not apply to a driver who was out of the state, but was at all time amenable to service of process under AS 09.05.015(a)(3) . Kuk v. Nalley, 166 P.3d 47 (Alaska 2007).

Tolling of statute by concealment or nondisclosure of negligence. —

A concealment or nondisclosure of negligence tolls the statute until the injured party has actual notice of the negligence or, in the exercise of ordinary care, should have known of the negligence. Sharrow v. Archer, 658 P.2d 1331 (Alaska 1983).

Discovery rule. —

The discovery rule does not require actual notice of misrepresentation and did not toll the running of the statute where plaintiff was placed on inquiry notice of defendant’s misrepresentation prior to the date evidence of the possibility of a knowing misrepresentation was first discovered. Alaska Tae Woong Venture v. Westward Seafoods, 963 P.2d 1055 (Alaska 1998).

Superior court erred in granting summary judgment to a seller based on the timeliness of the purchaser's claims because a genuine dispute of material fact existed as to whether it was reasonable for the purchaser to initially attribute the sewer issues to tenant misuse, and the seller did not establish an absence of factual dispute as to when the purchaser's claims accrued under the discovery rule. Miller v. Fowler, 424 P.3d 306 (Alaska 2018).

Discovery of defect. —

Statute of limitations was not tolled on a drilling company employee’s suit against a safety helmet manufacturer for injuries sustained while wearing a helmet, where the employee discovered an alleged defect in the helmet six years after the accident, after having made no attempt to investigate any role the helmet may have played in the accident within the two-year limitations period. Mine Safety Appliances Co. v. Stiles, 756 P.2d 288 (Alaska 1988).

Repressed memory syndrome. —

Claims of assault and battery, sexual assault, intentional infliction of emotional distress, and false imprisonment based on incidents that allegedly occurred in the 1970s were barred by the two-year tort statute of limitations because expert testimony was required to support a claim based on repressed memory syndrome. Statutes of limitation relating to sexual abuse were enacted after the events at issue, and they did not apply retroactively. Maness v. Gordon, 325 P.3d 522 (Alaska 2014).

Determination whether action is stayed by mental incapacity. —

Evidentiary threshold necessary to preclude the entry of summary judgment is low, and where mental competency is at issue, prior litigation and representation are not necessarily indicative of mental capacity; awareness of an existing claim may not reflect a person’s ability to assess and pursue it in a rational and effective manner. Cikan v. Arco Alaska, Inc., 125 P.3d 335 (Alaska 2005).

This section was tolled during plaintiff’s minority, i.e., until he was 19 years of age. Turnbull v. Bonkowski, 274 F. Supp. 733 (D. Alaska 1967), aff'd, 419 F.2d 104 (9th Cir. Alaska 1969).

Computation of the limitations period provided by this section subsequent to the removal of the disability of minority is to be made by excluding the first day and including the last. Turnbull v. Bonkowski, 274 F. Supp. 733 (D. Alaska 1967), aff'd, 419 F.2d 104 (9th Cir. Alaska 1969).

The statute of limitations on actions for loss of parental consortium is tolled until the child reaches the age of majority. Truesdell v. Halliburton Co., 754 P.2d 236 (Alaska 1988).

Attainment of the age of majority is analogous to other events that trigger running of time periods; the limitation period excludes the day of the event (attainment of majority), and includes the last day in the period, unless that day is a holiday. Fields v. Fairbanks N. Star Borough, 818 P.2d 658 (Alaska 1991).

Filing wage claim tolls statute. —

Department of labor proceedings are a form of quasi-judicial relief; therefore, filing a statutory wage claim with the department equitably tolls the statute of limitations if the other requirements of that doctrine are established. Dayhoff v. Temsco Helicopters, 772 P.2d 1085 (Alaska 1989).

Tolling by imprisonment. —

AS 09.10.140 does not toll the two-year limitation provided by this section where the record in the case does not show that on the latest date of the tortious acts plaintiff was imprisoned. Williams v. McNealy, 239 F.2d 150, 16 Alaska 509 (9th Cir. Alaska 1956). See also Williams v. Strand, 239 F.2d 151, 16 Alaska 512 (9th Cir. Alaska 1956).

Time spent on parole not to toll section after December 14, 1973. —

After December 14, 1973, the date of the opinion in Bush v. Reid, 516 P.2d 1215 (1973), holding former AS 11.05.070 and former AS 33.15.190 unconstitutional in depriving parolees of the right to initiate civil suits, time spent on parole shall not toll the statute of limitations, provided however, that any person on parole as of that date shall, in any event, have one year from that date within which to bring an action. State v. McCracken, 520 P.2d 787 (Alaska 1973).

The supreme court’s finding in Bush v. Reid, Sup. Ct. Op. No. 973 (File No. 1841), 516 P.2d 1215 (1973), that former AS 11.05.070 and former AS 33.15.190 were unconstitutional in depriving the parolee of access to the courts may not properly be considered retroactive. State v. McCracken, 520 P.2d 787 (Alaska 1973).

Memorandum as to resolving claims did not stop running of period. —

A memorandum which discussed the state’s intent to resolve a contractor’s claims through change orders or extra work orders and to resort to administrative review, judicial process, or arbitration if the contractor remained dissatisfied offered no indication that the state lulled the contractor into not filing a tort claim for personal damages. Therefore, the running of the statute of limitations was not blocked by equitable estoppel. State, Dep't of Nat. Res. v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993).

Collateral references. —

51 Am. Jur. 2d, Limitation of Actions, §§ 146, 147, 167, 168.

54 C.J.S., Limitation of Actions, § 115 et seq.

Limitation of actions as to slander of title based on recording of instrument purporting to affect title, 39 ALR2d 860.

When statute of limitations begins to run against action for false imprisonment or false arrest, 49 ALR2d 922.

What constitutes “publication” of libel in order to start running of period of limitations, 42 ALR3d 807.

What statute of limitations covers action for indemnity, 57 ALR3d 833.

When statute of limitations commences to run against claim for contribution or indemnity based on tort, 57 A.L.R.3d 867.

What statute of limitations applies to action for contribution against joint tortfeasor, 57 ALR3d 927.

Statutes of limitations in illegitimacy or bastardy proceedings, 59 ALR3d 685.

Promises or attempts by seller to repair goods as tolling statute of limitations for breach of warranty, 68 ALR3d 1277.

Effect of injured employee’s proceeding for workmen’s compensation benefits on running of statute of limitations governing action for personal injury arising from same incident, 71 ALR3d 849.

Tort claim against which period of statute of limitations has run as subject of setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident, 72 ALR3d 1065.

Minority of surviving children as tolling limitation period in state wrongful death action, 85 ALR3d 162.

Applicability, in action against nurse in her professional capacity, of statute of limitations applicable to malpractice, 88 ALR3d 1336.

What statute of limitations governs actions based on strict liability in tort, 91 ALR3d 455.

When does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor, 91 ALR3d 844.

When statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures, 93 ALR3d 218.

What statute of limitations governs damage action against attorney for malpractice, 2 ALR4th 284.

What statute of limitations governs action arising out of transaction consummated by use of credit card, 2 ALR4th 677.

When statute of limitations begins to run in dental malpractice suits, 3 ALR4th 318.

What statute of limitations governs physician’s action for wrongful denial of hospital privileges, 3 ALR4th 1214.

Availability of and time for bringing action against former director, officer, or stockholder in dissolve corporation for personal injuries incurred after final dissolution, 20 ALR4th 414.

Time of discovery of defamation as determining accrual of action, 35 ALR4th 1002.

Validity, construction, and application, in nonstatutory personal injury actions, of state statute providing for borrowing of statute of limitations of another state, 41 A.L.R.4th 1025.

Limitation of actions applicable to third person’s action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 ALR4th 1078.

Tolling on account of minority of injured child, as applicable to parent’s or guardian’s right of action arising out of same injury, 49 A.L.R.4th 216.

Applicability of foreign object exception in medical malpractice statutes of limitations, 50 ALR4th 250.

Surviving parent’s minority as tolling limitation period on suit for child’s wrongful death, 54 ALR4th 362.

Statute of limitations in wrongful death action based on medical malpractice, 70 ALR4th 535.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations, 88 ALR4th 851.

Application of discovery rule to postpone running of limitations against action for damages from assault, 88 ALR4th 1063.

Application of statute of limitations to actions for breach of duty in performing services of public accountant, 7 A.L.R.5th 852.

Application of statute of limitations in private tort actions based on injury to persons or property caused by underground flow of contaminants, 11 ALR5th 438.

Who are “health care providers,” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 ALR5th 1.

Attorney malpractice — Tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.

Insurer’s waiver of defense of statute of limitations, 104 ALR5th 331.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations, 121 ALR5th 365.

I.General Consideration

Construction of limitation period in wrongful death statute. —

While an action for wrongful death is statutory, there is no legislative intent to treat it differently from common law tort actions. Thus, where the disability of a minor tolls the running of the statute of limitations in tort actions, the disability tolls the running of the 2-year time limit for commencing a wrongful death action. Haakanson v. Wakefield Seafoods, 600 P.2d 1087 (Alaska 1979).

Disability must exist when cause of action arises. —

This section tolls the statute only during the continuance of a disability which existed at the time the cause of action arose.. (Decided under prior provisions governing prisoners and parolees.) Williams v. Coughlan, 244 F.2d 6, 17 Alaska 147 (9th Cir. Alaska 1957).

Cited in

Weber v. State, 166 P.3d 899 (Alaska 2007); Moffitt v. Moffitt, 341 P.3d 1102 (Alaska 2014); Reasner v. State, 394 P.3d 610 (Alaska 2017); Estate of James v. Seward, 401 P.3d 976 (Alaska 2017).

II.Minority

Constitutionality. —

Subsection (c)’s disparate treatment of minors under the age of eight is rationally based and furthers legitimate state interests. Evans v. State, 56 P.3d 1046 (Alaska 2002).

When subsection (c) of this section forecloses a minor’s personal injury claim because his or her parents or guardians have failed to timely file suit, it violates that minor’s procedural due process right of access to the courts. Sands v. Green, 156 P.3d 1130 (Alaska 2007).

Public policy of safeguarding the interests of minors is the underlying basis for this statute. Haakanson v. Wakefield Seafoods, 600 P.2d 1087 (Alaska 1979).

Minor’s property controlled by custodian. —

This section applied to claims of minor shareholders, even though their shares of stock were controlled by a custodian. Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997).

Parent’s failure to timely file minor son’s personal injury suit. —

Where subsection (c) foreclosed a son’s personal injury action due to the fact that his parents failed to timely file suit, as the injury occurred one month before the son’s eighth birthday and the parents did not sue the dog owners until nearly five years later, it violated his procedural due process right of access to the courts; given the important interest involved, the state’s interests were not sufficient to warrant the deprivation of the minor’s rights. Sands v. Green, 156 P.3d 1130 (Alaska 2007).

Extent to which disability tolls statute. —

The disability of a minor statutory beneficiary tolls the running of the two-year time limit for commencing a wrongful death action until the disability is concluded. Haakanson v. Wakefield Seafoods, 600 P.2d 1087 (Alaska 1979).

Determination of age. —

Since one is in existence on the day of his birth, he is, in fact, on the first anniversary of his birth, of the age of one year plus a day or some part of a day. The plaintiff did, then, reach the age of nineteen years on the day before the nineteenth anniversary of his birth, and he instituted his suit more than two years thereafter. Turnbull v. Bonkowski, 419 F.2d 104 (9th Cir. Alaska 1969).

Attainment of the age of majority is analogous to other events that trigger running of time periods; the limitation period excludes the day of the event (attainment of majority), and includes the last day in the period, unless that day is a holiday. Fields v. Fairbanks N. Star Borough, 818 P.2d 658 (Alaska 1991).

AS 09.10.070 was tolled during plaintiff’s minority, i.e., until he was 19 years of age. Turnbull v. Bonkowski, 274 F. Supp. 733 (D. Alaska 1967), aff'd, 419 F.2d 104 (9th Cir. Alaska 1969).

Computation of the limitations period provided by this section subsequent to the removal of the disability of minority is to be made by excluding the first day and including the last. Turnbull v. Bonkowski, 274 F. Supp. 733 (D. Alaska 1967), aff'd, 419 F.2d 104 (9th Cir. Alaska 1969).

The statute of limitations on actions for loss of parental consortium is tolled until the child reaches the age of majority. Truesdell v. Halliburton Co., 754 P.2d 236 (Alaska 1988).

Attainment of the age of majority is analogous to other events that trigger running of time periods; the limitation period excludes the day of the event (attainment of majority), and includes the last day in the period, unless that day is a holiday. Fields v. Fairbanks N. Star Borough, 818 P.2d 658 (Alaska 1991).

Statute of limitations on actions for loss of parental consortium is tolled until the child reaches the age of majority. Truesdell v. Halliburton Co., 754 P.2d 236 (Alaska 1988).

Who may bring paternity actions. —

Given that the potential plaintiffs in paternity actions are not delimited by statute, a child, upon reaching the age of majority, may bring an action, and, prior to the age of majority, a parent or guardian ad litem may bring an action on behalf of the child, or the Child Support Enforcement Division (now the Child Support Service Agency) may appear on behalf of the child or the child’s mother or legal guardian. Grober v. State, Dep't of Revenue ex rel. C.J.W., 956 P.2d 1230 (Alaska 1998).

Tolling of statute of limitations in paternity cases. —

This section applies to toll the statute of limitations in paternity actions even though the Child Support Enforcement Division (now the Child Support Service Agency) can bring an action on behalf of a minor. Grober v. State, Dep't of Revenue ex rel. C.J.W., 956 P.2d 1230 (Alaska 1998).

Child support. —

The statute of limitations for child support actions is tolled during the child’s minority; the wife’s claim for child support was not barred by the statute of limitations. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

III.Incompetency

Test for mental condition tolling statute of limitations. —

Courts have interpreted liberally the type of mental condition that will toll a statute of limitations. The general test is whether a person could know or understand his legal rights sufficiently well to manage his personal affairs. It does not require a formal finding of incompetency by a court. Adkins v. Nabors Alaska Drilling, 609 P.2d 15 (Alaska 1980).

Statute of limitations for fire damage claim began running when the insurance investigator sent his letter to the insured explaining the denial of his claim; even with seven months’ tolling for mental incapacity under this section, the insured’s claim was untimely and was barred by the statutes of limitations under both tort and contract law. Kaiser v. Umialik Ins., 108 P.3d 876 (Alaska 2005).

Formal finding of incompetency by a medical expert or a court is not necessary to raise a genuine issue of fact as to mental capacity. Cikan v. Arco Alaska, Inc., 125 P.3d 335 (Alaska 2005).

Evidentiary threshold necessary to preclude the entry of summary judgment is low, and where mental competency is at issue, prior litigation and representation are not necessarily indicative of mental capacity; awareness of an existing claim may not reflect a person’s ability to assess and pursue it in a rational and effective manner. Cikan v. Arco Alaska, Inc., 125 P.3d 335 (Alaska 2005).

Mental disability. —

Superior court judged properly rejected a complainant’s mental incompetency claims in separate proceedings because, although the complainant alleged that mental disability caused his confusion, personality changes, and disorganization that led him to file bankruptcy and caused him not to communicate effectively with the his attorney at trial, the evidence which the complainant submitted actually illustrated his ability to understand his legal rights. Richardson v. Municipality of Anchorage, 360 P.3d 79 (Alaska 2015).

Assertion that the statute of limitations under AS 09.10.140 had been tolled on a claim against the Office of Children’s Services because appellant was mentally incompetent following years of abuse by his stepfather was denied; the superior court followed the correct procedure for resolving factual disputes over statute of limitations issues and applied the proper burden of proof to the evidence presented at the hearing. Timothy G. v. State, 372 P.3d 235 (Alaska 2016).

Alcoholism. —

Motion for relief from judgment filed 15 years after the divorce decree incorporating the parties’ property settlement agreement was entered was properly denied, because the one-year period for seeking relief under R. Civ. P. 60(b)(1)-(3) had expired. Even if the husband had demonstrated that he was incompetent due to alcoholism at the time he signed the agreement, any tolling period had expired several years before he filed a motion. Gray v. Gray, — P.3d — (Alaska Dec. 7, 2011) (memorandum decision).

A person who suffered a severe head injury may be within the provisions of the tolling statute. Adkins v. Nabors Alaska Drilling, 609 P.2d 15 (Alaska 1980).

English deficiency not mental disability. —

An English deficiency alone does not constitute mental incompetency under subsection (a)(2), since it is an individual’s mental capacity to understand his rights, not whether the individual actually understood or knew of those rights, that is the dispositive inquiry. Hernandez-Robaina v. State, 849 P.2d 783 (Alaska 1993).

Repressed memory syndrome. —

Claims of assault and battery, sexual assault, intentional infliction of emotional distress, and false imprisonment based on incidents that allegedly occurred in the 1970s were barred by the two-year tort statute of limitations because expert testimony was required to support a claim based on repressed memory syndrome. Statutes of limitation relating to sexual abuse were enacted after the events at issue, and they did not apply retroactively. Maness v. Gordon, 325 P.3d 522 (Alaska 2014).

IV.Imprisonment

Imprisonment not in effect when claim accrued does not toll statute. —

Since plaintiff’s period of imprisonment was not in effect at the time his claims accrued, the statute of limitations was not tolled by this section. Williams v. Coughlan, 244 F.2d 6, 17 Alaska 147 (9th Cir. Alaska 1957).

Former Item (3) of this section (relating to imprisonment on a criminal charge) did not toll the two-year limitation provided by AS 09.10.070 where the record in the case did not show that on the latest date of the tortious acts plaintiff was imprisoned. Williams v. McNealy, 239 F.2d 150, 16 Alaska 509 (9th Cir. Alaska 1956). See also Williams v. Strand, 239 F.2d 151, 16 Alaska 512 (9th Cir. Alaska 1956).

In a products liability action, neither three days’ bedrest necessitated by plaintiff’s injuries nor plaintiff’s incarceration approximately one year after the accident in question tolled the statute of limitations. Thus plaintiff’s complaint, filed two years and one day after plaintiff sustained injuries, was not timely filed. Yurioff v. American Honda Motor Co., 803 P.2d 386 (Alaska 1990).

Tolling of statute of limitations during disability of parolee. —

While tolling the statute of limitations during disability prevents the boldest of takings, the disability created by former AS 11.05.070 and 35.15.190, when interpreted to bar a parolee from filing a civil action, deprived the parolee of his constitutional right to equal protection of the laws in violation of the Alaska and U.S. Constitutions. Bush v. Reid, 516 P.2d 1215 (Alaska 1973).

Time spent on parole not to toll statute after December 14, 1973. —

After December 14, 1973, the date of the opinion in Bush v. Reid, 516 P.2d 1215 (1973), holding former AS 11.05.070 and former AS 33.15.190 unconstitutional in depriving parolees of the right to initiate civil suits, time spent on parole shall not toll the statute of limitations, provided however, that any person on parole as of that date shall, in any event, have one year from that date within which to bring an action. State v. McCracken, 520 P.2d 787 (Alaska 1973).

Statute was tolled by time spent on parole prior to December 14, 1973. —

See State v. McCracken, 520 P.2d 787 (Alaska 1973).

The supreme court’s finding in Bush v. Reid, 516 P.2d 1215 (1973), that former AS 11.05.070 and former AS 33.15.190 were unconstitutional in depriving the parolee of access to the courts may not properly be considered retroactive. State v. McCracken, 520 P.2d 787 (Alaska 1973).

Collateral references. —

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward, 86 ALR2d 965.

Imprisonment of party to civil action as tolling statute of limitations, 77 ALR3d 735.

Minority of surviving children as tolling limitation period in state wrongful death action, 85 ALR3d 162.

Tolling of statute in favor of one commencing action despite existing disability, 30 ALR4th 1092.

Emotional or psychological “blocking” or repression as tolling running of statute of limitations, 11 ALR5th 588.

Posttraumatic syndrome as tolling running of statute of limitations, 12 ALR5th 546.

Right of illegitimate child to maintain action to determine paternity, 86 ALR5th 637.

Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person, 111 ALR5th 159.

I.General Consideration

Applicability of section. —

This section applies to all cases accruing after its effective date, August 7, 1997, and cannot be applied to cases accruing before that date, because of express legislative intent to the contrary. Norcon, Inc. v. Kotowski, 971 P.2d 158 (Alaska 1999).

State’s interest in punitive damages award. —

In a retaliatory discharge case, the state was properly awarded a share of punitive damages where, once a verdict was returned, the state’s interest came into existence. It did not matter that the case had been appealed and returned to the superior court for recalculations because no new trial was required. Reust v. Alaska Petroleum Contrs., Inc., 206 P.3d 437 (Alaska), cert. denied, 558 U.S. 970, 130 S. Ct. 461, 175 L. Ed. 2d 308 (U.S. 2009).

Trial court did not err in awarding punitive damages in a fraudulent conveyance case because the findings showed that heirs, who brought the suit against a purported attorney and his brother, suffered substantial damage; however, the trial court erred in awarding prejudgment interest on the punitive damages award. Lockhart v. Draper, 209 P.3d 1025 (Alaska 2009).

Quoted in

State Farm Mut. Auto. Ins. Co. v. Weiford, 831 P.2d 1264 (Alaska 1992); Ace v. Aetna Life Ins. Co., 139 F.3d 1241 (9th Cir. Alaska 1998).

Stated in

Weed v. Bachner Co., 230 P.3d 697 (Alaska 2010).

Cited in

Johnson & Higgins of Alaska, Inc. v. Blomfield, 907 P.2d 1371 (Alaska 1995); Mapco Express, Inc. v. Faulk, 24 P.3d 531 (Alaska 2001); Fleegel v. Estate of Boyles, 61 P.3d 1267 (Alaska 2002); Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240 (Alaska 2007); Wilson v. MacDonald, 168 P.3d 887 (Alaska 2007); L.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009); Asher v. Alkan Shelter, LLC, 212 P.3d 772 (Alaska 2009).

II.Constitutionality

Constitutionality. —

Damages caps on noneconomic and punitive damages under AS 09.17.010 and this section do not violate Alaska Const., art. I, § 16, or the Seventh Amendment to the United States Constitution.Evans v. State, 56 P.3d 1046 (Alaska 2002).

Subsection (j), which requires successful plaintiffs who receive any type of punitive damages to pay half of that award to the state treasury, does not effect an unconstitutional taking without just compensation under the United States and Alaska Constitutions. Evans v. State, 56 P.3d 1046 (Alaska 2002).

Worker’s claim for punitive damages is protected property only insofar as permitted by subsection (j) of this section; the allocation of 50 percent of the punitive damages award to the State was not an unconstitutional taking. Anderson v. State ex rel. Cent. Bering Sea Fishermen's Ass'n, 78 P.3d 710 (Alaska 2003).

Subsection (j) of this section does not violate substantive due process, nor does it result in an unconstitutional taking. Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 807 (Alaska 2005).

This section, mandating the award of a portion of punitive damages to the state, is within the legislature’s power. State v. Carpenter, 171 P.3d 41 (Alaska 2007).

III.Pleading and Proof

Pleading requirements. —

In an injured child’s covenant settlement agreement case, a court erred by awarding punitive damages where the conduct alleged in the counterclaim was not necessarily outrageous or recklessly indifferent, nor was it so characterized, the allegation that the insurer violated the implied covenant of good faith and fair dealing was not sufficient to support a claim for punitive damages, and the body of the complaint sought only a judgment for the full amount of the liability the original insureds incurred as a result of the child’s injuries, with no claim for personal wrongs to the original insureds for their treatment by the insurer. Great Divide Ins. Co. v. Carpenter, 79 P.3d 599 (Alaska 2003).

Guilty plea estops defendant from denying recklessness. —

Denial of motion for summary judgment as to punitive damages was error because a drunk driver who has pled guilty to the charge is estopped from denying recklessness under this section, making an injured party eligible for punitive damages. Lamb v. Anderson, 126 P.3d 132 (Alaska 2005).

Burden of proof. —

In an instruction on punitive damages, failure to instruct the jury on the clear and convincing evidence burden of proof was plain error. Alaska Marine Pilots v. Hendsch, 950 P.2d 98 (Alaska 1997).

Evidence was held sufficient to award an employee punitive damages under subsection (b) of this section because it did not matter that the employee might have failed to prove witness retaliation by clear and convincing evidence: That standard of proof applied to proving the outrageousness of the employer’s conduct, not to proving the underlying tort. Reust v. Alaska Petroleum Contrs., Inc., 127 P.3d 807 (Alaska 2005).

In a case in which plaintiff sued a hotel for defamation, the trial court did not err when it found plaintiff was not entitled to punitive damages. The evidence of recklessness, while satisfying the preponderance-of-the-evidence burden, fell short of clear and convincing. Burton v. Fountainhead Dev., Inc., 393 P.3d 387 (Alaska 2017).

Clear and convincing evidence. —

While peaceful picketing is a protected form of speech, threats of bodily harm, personal assaults, and property destruction on a picket line are not constitutionally protected, and such actions provided ample evidence of conduct which justified a punitive damage award under the clear and convincing standard. IBEW, Local 1547 v. Alaska Util. Constr., Inc., 976 P.2d 852 (Alaska 1999).

Motorist’s punitive damages claim against a driver was properly dismissed because witness statements showing the driver ran a stop sign said nothing about the driver’s state of mind, and the driver’s post-accident statements did not constitute evidence of recklessness. Pouzanova v. Morton, 327 P.3d 865 (Alaska 2014).

“Outrageous” conduct, “reckless indifference” supported by evidence. —

Where not only was an insurer dilatory in responding to the tenders of defense by the United States, but the reasons articulated by the insurer as the basis for denying coverage and a defense did not provide a reasonable explanation for rejecting the tenders by the U.S., a jury could find that the insurer’s rejection of the tenders by the U.S. was outrageous or done with reckless indifference, which would support an award of punitive damages under subsection (b) of this section. United States v. CNA Fin. Corp., 381 F. Supp. 2d 1088 (D. Alaska 2005).

Clear and convincing evidence supported an award of punitive damages against a doctor who committed a battery against a fellow employee by grabbing her arm, dragging her down the hall, and throwing her into an office chair, causing her injury; claim for intentional infliction of emotional distress would have prevailed; the doctor’s behavior was egregious, reckless, and outrageous, particularly in view of the disparity in power between the employee and the doctor in the hospital setting. Brandner v. Hudson, 171 P.3d 83 (Alaska 2007).

Where a neighbor started a large fire to clear rubbish, and the fire caused damage to the owner’s property and dog boarding business, the neighbor’s behavior was sufficiently egregious to trigger the jury’s assessment of $500 in punitive damages under this section because the neighbor acted with reckless indifference when she mocked the property owner for raising concerns before she started the fire; in addition, the two fires were sizable, the wind was blowing in the direction of the owner’s property, the fires consumed objects containing lead, the fires deposited a great deal of ash, and explosions within the fires threw pieces of metal onto his property. Maddox v. Hardy, 187 P.3d 486 (Alaska 2008).

Superior court holding that it could award no punitive damages since it had awarded no compensatory damages because a personal representative's allegations were not contested and should have been viewed as proven upon entry of default was incorrect; the allegations reasonably established a hospital employee's reckless indifference to an elderly woman's health, safety, and property interests and hence were a sufficient basis for an award of punitive damages. Haines v. Comfort Keepers, Inc., 393 P.3d 422 (Alaska 2017).

No contest plea to second-degree assault estopped denial of reckless indifference. —

As a result of the defendant’s conviction based on his no contest plea to second-degree assault, he was collaterally estopped from denying that he evidenced reckless indifference to the interest of another; assault was a felony, there was no indicia of irregularity in the defendant’s criminal case, and the defendant’s recklessness and the fact that he inflicted serious physical injury to the plaintiff in a hit-and-run accident were necessary elements of his assault conviction. Lamb v. Anderson, 147 P.3d 736 (Alaska 2006).

IV.Award Proper

Damage award upheld. —

The amount of punitive damages awarded by the jury in air service’s breach of contract and misrepresentation action against an individual and his wholly-owned corporation was not excessive in light of the reprehensibility of the individual’s conduct, the necessity of penalizing the type of fraud, and the potential penalties the individual faced under criminal and civil law. Casciola v. F. S. Air Serv., 120 P.3d 1059 (Alaska 2005).

Fine assessed against a limited liability company (LLC) for campaign violations was not so excessive that it would violate Alaska or federal law regarding punitive damages. The LLC was a sophisticated entity with substantial assets and knowledgeable management, and its actions called into question the fairness of an election; the fine sent a message that the Alaska Public Offices Commission takes violations seriously, and helped deter other corporations from engaging in similar misconduct. RBG Bush Planes, LLC v. Alaska Pub. Offices Comm'n, 361 P.3d 886 (Alaska 2015).

Punitive damages award of $450,000 did not violate due process, as it was not greater than a comparable civil penalty and was less than the maximum punitive damages allowed by AS 09.17.020(f) Gov't Emples. Ins. Co. v. Gonzalez, 403 P.3d 1153 (Alaska 2017).

V.Award Not Proper

Damage award improper in absence of reckless indifference. —

Court erred in allowing punitive damages against attorneys where there was no evidence that the attorneys acted with reckless indifference to a ward’s rights, that they had actual knowledge of the guardian’s wrongdoing in relation to the ward, nor was there evidence that the attorneys attempted to avoid knowledge of the guardian’s misconduct. Pederson v. Barnes, 139 P.3d 552 (Alaska 2006).

Damages award not warranted. —

Superior court properly determined that an employee and his wife were not entitled to punitive damages from an employer and a union-sponsored trust where the trial court concluded that the trust and employer were liable only for negligent misrepresentation. S. Alaska Carpenters Health & Sec. Trust Fund v. Jones, 177 P.3d 844 (Alaska 2008).

In an action filed by purchasers of property on which toxic dry cleaning agents were released, the insurers of the sellers were entitled to summary judgment as to the purchasers’ claim for punitive damages because there was insufficient evidence to establish bad faith on the part of the insurers. Hinkle v. Crum & Forster Holding, Inc., 746 F. Supp. 2d 1047 (D. Alaska), dismissed, 747 F. Supp. 2d 1132 (D. Alaska 2010).

Airplane owner’s claim for punitive damages arising from damage caused to his plane sounded in contract, not tort, because the parties agreed that the damage to the plane was not due to outrageous conduct on the part of the defendant. An injured claimant may not sue a defendant’s insurer for breach of the duty of good faith, and thus the contract-based claim for punitive damages under subsection (b) failed. Madonna v. Tamarack Air, LTD., 298 P.3d 875 (Alaska 2013).

No punitive damages were awarded because the deterrence and punishment goals served by an award of punitive damages were already met by the treble damage, costs, and full attorney fee awards given under the Alaska Unfair Trade Practices Act. Deloycheet, Inc. v. Beach (In re Beach), — B.R. — (Bankr. D. Alaska Apr. 7, 2017).

Punitive damages were not available when the owners of an adjacent lot sued a property owner after the owner without prior approval cut down trees on the owner's lot that were protected by the subdivision's declaration of covenants, conditions, and restrictions because the owner's breach of the contract was not an independent tort, the owner did not commit waste, the owner's cutting down the trees was not a private nuisance, and the owner did not commit trespass to trees. Galipeau v. Bixby, 476 P.3d 1129 (Alaska 2020).

Collateral references. —

Availability and scope of punitive damages under state employment discrimination law, 81 ALR5th 367.

Validity of state statutory cap on punitive damages, 103 ALR5th 379.

Liability of cigarette manufacturers for punitive damages, 108 ALR5th 343.

Exemplary or punitive damages for pharmacist’s wrongful conduct in preparing or dispensing medical prescription — Cases not under Consumer Product Safety Act (15 U.S.C.A. § 2072), 109 ALR5th 397.

I.General Consideration

“Party” construed. —

The term “party to an action” in subsection (a) should be construed to mean a litigant or other joint tortfeasor involved in the same accident. Carriere v. Cominco Alaska, Inc., 823 F. Supp. 680 (D. Alaska 1993).

“Party” for purposes of subsection (d) means parties to an action, including third-party defendants and settling parties; court did not err in refusing to allow the jury to consider the negligence of nonparties. Benner v. Wichman, 874 P.2d 949 (Alaska 1994).

Though the tenant reached a settlement with the property owner, fault could still be allocated or imputed to the owner as a party to the suit. Heynen v. Fairbanks, 293 P.3d 470 (Alaska 2013).

“Fault” construed. —

Subsection (a) requires trial courts to instruct on comparative fault in all cases involving the fault of more than one person unless the parties agree that there should be no such instruction; the pre-1997 version of AS 09.17.900 includes within the concept of “fault” all tortious acts except those where the defendant acts with the intent to cause the resultant harm. Shields v. Cape Fox Corp., 42 P.3d 1083 (Alaska 2002).

Joint and several liability abolished. —

This section was amended in order to abolish joint and several liability and to assure that where a plaintiff was injured as a result of the negligence or other fault of numerous tortfeasors, each of whose actions was a concurrent cause of plaintiffs damages, plaintiff could only recover from each tortfeasor in the proportion that the fault of each played to the total fault of all the persons and entities at fault including the plaintiff. Robinson v. Alaska Properties & Inv., 878 F. Supp. 1318 (D. Alaska 1995).

In this fraud action, the damages award was reversed and the matter was remanded to the trial court because (1) the trial court failed to consider the factors required by statute when calculating the percentage of damages allocated to the ex-wife; (2) the trial court found the ex-wife partially liable for the full amount the employee stole, when its findings supported liability for the ex-wife only as to her health insurance and her fraudulent affidavit; and (3) Alaska no longer used joint and several liability in tort cases like this one. Asher v. Alkan Shelter, LLC, 212 P.3d 772 (Alaska 2009).

Workers’ Compensation Act provisions unaffected. —

When the legislature enacted this section, it left intact the exclusive liability and employer reimbursement provisions of the Workers’ Compensation Act. Lake v. Construction Mach., 787 P.2d 1027 (Alaska 1990).

Criminal context precluded. —

This provision has no direct bearing in the criminal context, where a court’s authority to require payment of restitution exists independently of its authority to order payment of damages in civil matters. Noffsinger v. State, 850 P.2d 647 (Alaska Ct. App. 1993).

No single action rule. —

This section does not contain or require an implied one-action rule for each injury or accident. Universal Motors, Inc. v. Neary, 984 P.2d 515 (Alaska 1999).

This section does not mandate a single action for each injury or accident. McLaughlin v. Lougee, 137 P.3d 267 (Alaska 2006).

Divisible liability for vehicular negligence. —

The superior court did not err in its refusal to treat fleeing arrestee motorist, pursuing police officer, and municipal department as one party for purposes of fault apportionment where it was abundantly clear that the acts and omissions of fleeing arrestee, at all relevant times, were easily distinguishable from the acts and omissions of officer and the department which had trained him. Hildebrandt v. City of Fairbanks, 863 P.2d 240 (Alaska 1993).

Intentional conduct. —

In a personal injury suit based on the intentional conduct of residential treatment facility employees, where the events occurred in 1991, the statute did not apply as it did not address intentional conduct before 1997. Kodiak Island Borough v. Roe, 63 P.3d 1009 (Alaska 2003).

Applicability of statutes to settlement agreement. —

Subsection (c) of this section, prior to its 1997 amendment, would not require a reduction in the award of damages under former AS 09.16.040 because the latter, the reduction statute, did not apply by its own terms to a settlement reached after the statute was repealed. Petrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).

Applicabilty to Dram Shop action. —

Enactment of pure several liability in this section represents a changed condition, and AS 04.21.020 is now subject to pure several liability; accordingly, the holding in Loeb v. Rasmussen, 822 P.2d 914 (Alaska 1991), has been superseded by AS 09.17.080 . Sowinski v. Walker, 198 P.3d 1134 (Alaska 2008).

Where there was an allegation that a bar negligently sold alcohol to a drunk driver, this section took precedence over AS 04.21.020 , leaving the bar liable only for its own actions. H & J Corp. v. Murfitt, — P.3d — (Alaska Nov. 4, 2009) (memorandum decision).

Where the issue of direct suit against the intoxicated patron/tortfeasor was unsettled for dram shop actions, a plaintiff’s attorney should have sued the patron, and failure to do so was malpractice, especially in light of the provisions of this section regarding apportionment of damages. L.D.G., Inc. v. Robinson, 290 P.3d 215 (Alaska), reprinted, — P.3d — (Alaska 2012).

Circumstances of death properly excluded from trial on damages. —

Where a bar’s liability for the decedent’s death was established at the original trial, evidence pertaining to the patron’s role in the decedent’s death was not relevant to the issue of damages unless the bar was seeking to apportion damages to the patron who murdered the decedent. The bar did not take the required steps to ensure that damages could be apportioned to the patron; thus evidence of the patron’s role in the decedent’s death was not admitted at the trial on damages. L.D.G., Inc. v. Brown, 211 P.3d 1110 (Alaska 2009).

The statute of limitations for tort actions does not apply to claims for equitable apportionment that are filed in accordance with Alaska Civ. R. 14(c). Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98 (Alaska 2000).

Applied in

Small v. Sayre, 384 P.3d 785 (Alaska 2016).

Stated in

Janitscheck v. United States, —F.3d—, Janitscheck v. United States, 45 Fed. Appx. 809 (9th Cir. Alaska 2002);

Cited in

Brown v. Lange, 21 P.3d 822 (Alaska 2001); Thompson v. State, 64 P.3d 132 (Alaska Ct. App. 2003); Berg v. Popham, — P.3d — (Alaska Mar. 18, 2005); C.J. v. Dep't of Corr., 151 P.3d 373 (Alaska 2006); Diggins v. Jackson, 164 P.3d 647 (Alaska 2007); State Farm Mut. Auto. Ins. Co. v. Wilson, 199 P.3d 581 (Alaska 2008); Williams v. Geico Cas. Co., 301 P.3d 1220 (Alaska 2013); Williams v. Baker, 446 P.3d 336 (Alaska 2019).

II.Constitutionality

Constitutionality. —

Subsection (a) is reasonably related to a legitimate governmental purpose, does not violate substantive due process, and is not unconstitutionally vague. Evans v. State, 56 P.3d 1046 (Alaska 2002).

III.Joinder of Parties

Notice of intent. —

Where the defendant’s answer to the complaint provided adequate notice of its intent to allocate fault to one of the plaintiffs, the trial court did not err in reducing the plaintiffs’ recovery by that co-plaintiff’s allocation of fault, since this section allows allocation of fault to a co-plaintiff as a party to the action without requiring the defendant to implead that person as a third-party defendant. Fancyboy v. Alaska Village Elec. Coop., Inc., 984 P.2d 1128 (Alaska 1999).

Joinder of potentially liable actors. —

Because the allocation of a portion of fault to nonparties is not permitted by this section, nor practical in the courtroom, the defendant must join any potentially liable actors and articulate in third-party complaints the manner in which those actors caused the plaintiff’s injuries. This having been done, the trier of fact will then be able to accurately allocate a portion of fault to each party. Robinson v. U-Haul Co., 785 F. Supp. 1378 (D. Alaska 1992).

No fault could be apportioned in a timber trespass suit to a neighboring owner who had given other neighbors permission to remove trees from her land, because she had no duty to investigate and disclose the boundaries of her property in the absence of a business transaction; moreover, there was no evidence that she had intentionally caused the removal of a large number of trees beyond the boundary line, which was unforeseeable. Wiersum v. Harder, 316 P.3d 557 (Alaska 2013).

Equitable apportionment is available as a means of bringing other tortfeasors into an action. Benner v. Wichman, 874 P.2d 949 (Alaska 1994).

Addition of third parties. —

Where a seller allegedly installed dry-cleaning equipment and a water and percholoroethylene (PCE) separator system that facilitated spillage, leakage, and direction of PCE into the city sewer system, the purchasers’ claim for equitable apportionment against the seller’s successor failed because they were not attempting to add the successor as a third-party defendant in an existing lawsuit. Berg v. Popham, 412 F.3d 1122 (9th Cir. Alaska 2005).

In a personal injury action arising from a traffic accident, it was unnecessary to join the plaintiff’s husband for fault allocation purposes, based on domestic violence between the husband and the motorist; it was not claimed that the husband was responsible for the motorist’s injuries from the accident, and those were the only damages the motorist claimed. Pouzanova v. Morton, 327 P.3d 865 (Alaska 2014).

This section did not require the exclusion of domestic violence evidence based on an employee’s failure to join a driver’s girlfriend because the employee did not argue that the girlfriend bore fault for the incident at issue, and thus, the statute’s apportionment rules were inapplicable; the employee viewed the girlfriend’s actions as potentially a new, distinct, and separate cause of the driver’s injury. Cooper v. Thompson, 353 P.3d 782 (Alaska 2015).

Employee’s action against third-party tortfeasors. —

Evidence of an employer’s negligence may be relevant and admissible in an employee’s action against third-party tortfeasors to prove that the employer was entirely at fault, or that the employer’s fault was a superseding cause of the injury. Under this section, the finder of fact may allocate all or none of the total fault to the employer. It may not allocate only a portion of the total fault to the employer. Jury instructions must be carefully prepared to prevent a panel from attributing to the employee any negligence of the employer. Lake v. Construction Mach., 787 P.2d 1027 (Alaska 1990).

Employer’s right to intervene to protect lien. —

Where an injured employee and the third party tortfeasors settled the employee’s claim and then asked the superior court to find the employer 25 percent at fault, the court erred when it denied the employer’s motion to intervene on the basis that the motion was untimely; the timing of the motion was understandable and, if the finding against the employer was binding, then it had lost a chance to save its AS 23.30.015(g) lien. Scammon Bay Ass'n v. Ulak, 126 P.3d 138 (Alaska 2005).

Apportionment. —

Supreme Court of Alaska recognizes that this section establishes no procedure to allow named defendants to allocate fault to potentially responsible parties that the plaintiff has not sued. Absent any explicit statutory procedure, defendants must be allowed to file third-party claims for equitable apportionment against other potentially responsible parties. Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634 (Alaska 2007).

IV.Contribution and Apportionment

No contribution between joint tortfeasors. —

Subsection (d) expressly and unambiguously terminated all provision for contribution between joint tortfeasors, as it was intended to create a pure several liability obligation as to each individual tortfeasor, with fault to be allocated among all whom the evidence in the case demonstrates to have had some percentage of fault irrespective of their party status. Carriere v. Cominco Alaska, Inc., 823 F. Supp. 680 (D. Alaska 1993).

Separate trial for contribution issues. —

Although a single trial allocating fault among all potentially liable parties may promote judicial economy, nothing in the legislative history of this section indicates that the legislature intended to require a single trial for both first-party and third-party claims. The traditional two-step system of first establishing liability and then seeking contribution is not inconsistent with the comparative negligence principles underlying the Tort Reform Act. Borg-Warner Corp. v. Avco Corp., 850 P.2d 628 (Alaska 1993).

A.In General

Liability allocation among all unintentional tortfeasors. —

The Tort Reform Act clearly contemplates a relative allocation of fault among all unintentional tortfeasors, whether negligent, grossly negligent or willful and wanton. Borg-Warner Corp. v. Avco Corp., 850 P.2d 628 (Alaska 1993).

Alaska has a system of pure comparative negligence with several liability and AS 09.17.060 promulgates the basic comparative negligence principle that a claimant cannot recover the portion of damages attributable to the claimant’s own fault for the harm complained of; this section promulgates the additional rule that of the total fault for harm attributable to defendants, not the claimant, the court shall enter a judgment against each defendant only for the defendant’s own percentage of the total fault. Sowinski v. Walker, 198 P.3d 1134 (Alaska 2008).

Contribution claims to which Act applicable. —

The Tort Reform Act of 1986 applies only when plaintiff’s injury occurred on or after June 11, 1986, the effective date of that act. It does not apply to contribution claims accruing after that date, arising from torts which occurred prior to June 11, 1986. Ogle v. Craig Taylor Equip. Co., 761 P.2d 722 (Alaska 1988).

Contribution against joint tortfeasors. —

The original 1939 act provided that a release of any tortfeasor would not release him from liability for contribution unless the release specifically provided for a reduction for the plaintiff’s recoverable damages. This provision was seen as a deterrent to settlement. Vertecs Corp. v. Fiberchem, Inc., 669 P.2d 958 (Alaska 1983); Foss Alaska Line v. Northland Servs., 724 P.2d 523 (Alaska 1986); Fellows v. Tlingit-Haida Regional Elec. Auth., 740 P.2d 428 (Alaska 1987); Tommy's Elbow Room v. Kavorkian, 754 P.2d 243 (Alaska 1988); Ogle v. Craig Taylor Equip. Co., 761 P.2d 722 (Alaska 1988); Providence Wash. Ins. Co. v. McGee, 764 P.2d 712 (Alaska 1988); Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745 (Alaska 1992).

Pure several liability. —

Because pure several liability applied in duty-to-protect cases, the superior court erred when it failed to apportion damages between an attorney who represented a guardian and the guardian who committed the actual fraud against his ward. Pederson v. Barnes, 139 P.3d 552 (Alaska 2006).

Unless a settlement is shown to be unreasonable and thereafter set aside, a settling tortfeasor must not be considered in determining the number of pro rata shares available for each remaining tortfeasor’s individual liability. Colt Indus. Operating Corp. v. Frank W. Murphy Mfr., 822 P.2d 925 (Alaska 1991).

While Alaska had previously indicated that full offsets were appropriate in the context of multiple actions and joint liability, rote application of the rule in the pure several liability context would discourage settlements and lead to substantial unfairness. Proportionate share offsets are logical incidents of several liability, and in recognizing them, the Supreme Court simply adopted the most efficient and well-accepted solution. Petrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).

Application of proportionate share rule. —

The proportionate share rule, under which non-settling defendants were entitled to offset a plaintiff’s damages in proportion to the settling parties’ comparative fault, was applicable under subsection (d) of this section in determining liability of lessee, a non-settling party, in propane-tank explosion case. Petrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).

Negligence of attorney. —

In a bad faith insurance case brought by a passenger who had been denied underinsured motorist benefits, any negligence of the passenger’s attorney in failing to discover that the policy’s UIM provision violated statutory requirements was not a proximate cause of the passenger’s damages for purposes of apportioning fault. Ennen v. Integon Indem. Corp., 268 P.3d 277 (Alaska 2012).

Liability for attorney’s fees. —

In a case where no damages were awarded pursuant to this section, the superior court did not abuse its discretion by holding plaintiffs jointly and severally liable for the award of attorney’s fees. Hughes v. Foster Wheeler Co., 932 P.2d 784 (Alaska 1997).

Apportionment after limitations period has run. —

A third-party defendant who is sued for apportionment of fault under this section after the statute of limitations on the plaintiff’s underlying personal injury claim had run may nonetheless be liable to the plaintiff for money damages. Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d 98 (Alaska 2000).

In a negligent misrepresentation claim brought by an employee and his wife, the trial court properly apportioned 75 percent of the fault to the union-sponsored trust and 25 percent to the employer where the trust was better placed to determine whether the employee was eligible for health insurance coverage, the trust accepted premiums on behalf of nonunion employees, and a trust representative had assured the wife that the trust would provide insurance coverage at a time when he knew that a freeze had been placed on claims the couple might submit. S. Alaska Carpenters Health & Sec. Trust Fund v. Jones, 177 P.3d 844 (Alaska 2008).

B.Comparative Negligence

Comparative negligence in products liability cases. —

Prior to the Tort Reform Act, comparative negligence in products liability cases was limited to product misuse and unreasonable assumption of risk, but the Act expanded that definition to include other types of comparative fault, including a plaintiff’s ordinary negligence. Smith v. Ingersoll-Rand Co., 14 P.3d 990 (Alaska 2000).

Parental negligence in dog bite cases. —

Under Alaska law, any parental negligence where a child sustained a dog bite would not bar the parents’ claim but would only diminish proportionately the amount they are entitled to receive in damages. Sinclair v. Okata, 874 F. Supp. 1051 (D. Alaska 1994).

Lack of comparative fault findings. —

In a dispute regarding mining claims, a shareholder of the lessee could not be held personally liable for damages or for attorney fees in the absence of findings on comparative fault or on piercing the corporate veil. Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148 (Alaska 2012).

C.Collateral Source

Proceeds from non-collateral source. In a bad faith insurance case, the court did not err in failing to take judicial notice and instruct the jury of the general rule that an injured person could recover more than 100 percent of his or her damages by separately suing two severally liable defendants where an offset was permissible for the settlement proceeds from another insurer because the proceeds were from a non-collateral source and paid by a joint tortfeasor; the trial court’s ruling did not prevent plaintiffs from offering evidence that the insurer improperly evaluated the liability exposure. Jackson v. Am. Equity Ins. Co., 90 P.3d 136 (Alaska 2004).

Failure to reduce verdict held error. —

In action against truck manufacturer, truck seller, and brake manufacturer, where plaintiff settled his claim with the brake manufacturer by an agreement that released and discharged the truck manufacturer from all damages arising out of defective brake design, the court in allocating damages to the truck manufacturer, should have reduced the verdict by the 45% of fault attributable to the brake manufacturer. Navistar Int'l Transp. Corp. v. Pleasant, 887 P.2d 951 (Alaska 1994).

In action against truck manufacturer, truck seller, and brake manufacturer, the court, in allocating damages to the truck manufacturer, erred under former AS 09.17.090 (repealed) in failing to reduce liability by the amount paid by the truck seller in consideration for its release from liability. Navistar Int'l Transp. Corp. v. Pleasant, 887 P.2d 951 (Alaska 1994).

D.Fault

Allocation of fault as jury issue. —

It was an abuse of discretion for the trial court to announce for the first time after counsel had made closing arguments that the allocation of fault issue in a wrongful termination case would go to the jury; the trial court submitted the disputed special verdict form on fault allocation without allowing either the employer or the employee the benefit of closing arguments or explanatory jury instructions, which prejudiced both sides. Because an instruction on allocation of fault was not called for, as the definition of the cause of action, interference with an employment contract, did not allow a finding that the harm a customer’s employee caused was partly justified, the proper remedy on remand was to strike the 30 percent allocation of fault against the employee and to amend the awards against the customer and its employee. Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295 (Alaska 2006).

When a company brought a legal malpractice claim based on an underlying AS 09.10.230 claim, a firm was not entitled to summary judgment as to proximate cause because fault allocation was not proper at summary judgment under Alaska's “substantial factor” causation test and AS 09.17.080 . Gefre v. Davis Wright Tremaine, LLP, 372 P.3d 256 (Alaska 2016).

Issue of fact existed. —

Since the statute of repose bars an apportionment claim seeking to apportion fault for personal injury, death, or property damage at the same time it would bar the underlying claim, and the last act alleged to have caused appellant's personal injury occurred more than 10 years earlier, his apportionment claim against the Office of Children's Services was barred by the ten-year statute of repose unless it fell within one of the statute's exceptions and remand was necessary because issues of fact regarding those exceptions existed. Dapo v. State, 454 P.3d 171 (Alaska 2019).

Effect of zero fault allocation. —

Where several neighbors started a large fire to clear rubbish, and the fire caused damage to appellant’s property and business, appellee was not found individually liable; trial court did not err by refusing to impose joint and several strict liability on appellee because as strict liability in tort, as modified by subsection (d), only provided several liability, and because the jury allocated zero fault to appellee, appellant’s legal theory could not be based on common law strict liability. Maddox v. Hardy, 187 P.3d 486 (Alaska 2008).

V.Instructions

Instructing on negligence and recklessness. —

Court, in a personal injury suit involving multiple tort feasors, did not err by failing to instruct the jury on negligence and recklessness; the employer was not prejudiced by the court’s ruling on the issue since there would have been no fault to allocate and damages to apportion had the jury not found that the employees acted with intent. Kodiak Island Borough v. Roe, 63 P.3d 1009 (Alaska 2003).

Instructing on comparative fault. —

Subsection (a) requires trial courts to instruct on comparative fault in all cases involving the fault of more than one person unless the parties agree that there should be no such instruction and this agreement is expressed in clear and mandatory terms. Shields v. Cape Fox Corp., 42 P.3d 1083 (Alaska 2002).

Instruction on incapacity. —

Jury instruction regarding incapacity and allocation of fault was erroneous because it precluded the jury from allocating fault between the detained individual and the city, and the error was prejudicial; the evidence that supported the jury’s finding that the son’s suicide was reasonably foreseeable also provided a basis for the first determinative factor in the instruction, which foreclosed the apportionment of damages if the son was likely to harm himself. City of Hooper Bay v. Bunyan, 359 P.3d 972 (Alaska 2015).

Collateral references. —

Apportionment of punitive or exemplary damages as between joint tortfeasors, 20 ALR3d 666.

Propriety and effect of jury’s apportionment of damages as between tortfeasors jointly and severally liable, 46 ALR3d 801.

Contribution or indemnity between joint tortfeasors on basis of relative fault, 53 ALR3d 184.

I.General Consideration

Legislative intent re 1969 amendment. —

If the legislature had intended that a new list be prepared under the 1969 amendment on or immediately after the effective date of that amendment, it could easily have indicated its intent in this regard. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Legislative regulation of selection method. —

A determination of the method for selecting juries is a matter within the legislative prerogative. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Jury selection in Alaska is regulated by statute and rules of procedure. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

This section provides for expansion of sources from which jury lists are compiled. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Selection of grand and petit jurors. —

The provisions of this section, and AS 09.20.060 , and 09.20.070 , permit each district to determine for itself questions pertaining to the selection of grand and petit jurors. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Purpose of jury selection procedures. —

Alaska’s random and public jury selection procedures are designed to insulate the selection process from the personal interests and biases of governmental officials. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

Mere claim of benefit did not suggest officials biased. —

The mere claim that officials conducting proceedings for selecting jurors who composed a condemnation trial panel stood to benefit from the construction of a new courthouse in no way suggested that those officials harbored any personal interest or bias against owners whose lots were to be condemned for the construction. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

Presumption that official duty has been regularly performed. —

Alaska’s random and public jury selection procedures are designed to insulate the process from personal interests and biases of governmental officials. The mere claim that jury officials stood to benefit from construction of an expanded courthouse did not suggest that the officials had any personal interest or bias against owners of condemned property. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

Applied in

Tugatuk v. State, 626 P.2d 95 (Alaska 1981).

Stated in

Irwin v. Radio Corp. of Am., 430 P.2d 159 (Alaska 1967); Avery v. State, 514 P.2d 637 (Alaska 1973).

II.Constitutionality

Constitutionality. —

There is nothing to indicate that under the voting list method of selection a fair cross section of the community is not represented, and that there is a systematic and intentional exclusion of a particular, cognizable group of persons. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970).

Constitutionality of one-year residency requirement for jury service. —

See Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Meeting constitutional standard in jury selection. —

The constitutional standard in jury selection will be met if prospective jurors are drawn from a fair cross section of the community. Green v. State, 462 P.2d 994 (Alaska 1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1704, 26 L. Ed. 2d 70 (U.S. 1970); Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The right to a jury trial is a fundamental right, recognized as such throughout the nation by the constitutions of all the states and the federal government. Not only is such a right recognized, but it has been protected against nullification by the improper constitution of juries. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The right to jury trial contained in the 6th amendment is directly applicable to state prosecutions. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

III.Exclusions

Exclusionary method of jury selection invalid. —

Any method of jury selection which is in reality a subterfuge to exclude from juries systematically and intentionally some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

The exclusion of all daily wage earners is inconsistent with the notion of a jury representing a cross section of the community. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Systematic exclusion of women effectively negates the possibility of a jury representing a fair cross section of the community. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

IV.Functions of Jury

A.In General

Functions of jury. —

As an institution, the jury offers citizens the opportunity to participate in the workings of government, and serves to legitimize the justice system in the eyes of both the public and the accused. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

B.Impartial

A jury must be an impartial one. —

This is an expression of the notion of what a proper jury is — a body truly representative of the community. Such a notion is in keeping with the basic, traditional concept of a democratic society and representative government. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The right to trial before an impartial jury is explicitly secured to individuals accused of crimes by Alaska Const., art. I, § 11. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Failure to provide accused with an impartial jury constitutes a denial of his constitutional right to due process of law. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The extension to the states of the 6th amendment right to jury trial necessarily comprehends the guarantee that juries shall be impartial. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

C.Fair Cross-Section of Community

Representation of a fair cross section of the community on the jury list is an essential prerequisite to an impartial jury under the Alaska Constitution. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The contours of a fair cross section of the community are elusive and, indeed, they may not be susceptible of precise definition. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Common-law vicinage. —

Vicinage in the historical sense is no longer a formal requirement. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The Alaska Constitution contains no formal provision for a jury of the vicinage. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The source of prospective jurors need not, in all instances, include residents of the place in which the crime was allegedly committed, for it is conceivable that the source of prospective jurors may exclude the scene of the alleged offense, yet still reasonably represent a cross section of the community which includes the scene of the offense. Thus, that selection of prospective jurors from a restricted area within a judicial district, even if the scene of the crime is omitted from that area, will be acceptable if there is no indication that the population of the restricted area differs significantly from the population of entire district. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The traditional starting point for determining the community from which jurors are to be selected is the scene of the alleged offense. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Judicial districts as community boundaries for juror selection. —

The legislature has designated Alaska’s four judicial districts as outer community boundaries for the purpose of selecting prospective jurors. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Judicial districts are not necessarily the only acceptable communities for the purpose of jury selection. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The practice of selecting jurors from more limited areas within Alaska judicial districts has been upheld. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Community within which crime was committed as source. —

It is the community in which the crime was committed that the jury must represent. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

The area surrounding the location of the crime may be excluded from the source of selection when it appears that an unbiased jury could not be drawn therefrom. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Cases arising within urban centers. —

For cases arising from crimes allegedly committed within the various urban centers of Alaska, the maintenance of geographical limits currently in force will be acceptable; provided, of course, that selection within the given areas is not itself discriminatorily conducted. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Cases arising outside urban and non-Native centers. —

As for cases arising outside the urban and predominantly non-Native centers of Alaska, two acceptable and feasible alternatives may be employed in selecting jurors. First, jurors may be selected from among residents of the entire judicial district in which the crime is alleged to have occurred. A second alternative, one which is perhaps at the same time more desirable and more workable than the first, would be selection of jurors from the senate election district in which the crime is alleged to have occurred. Either of these alternatives would be calculated to produce jury panels satisfying the constitutional requirement of impartiality. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

All differences among individuals need not be recognized. —

All differences among individuals, or every conceivable group, in the community need not be recognized for the purpose of representation on juries. Alvarado v. State, 486 P.2d 891 (Alaska 1971).

Collateral references. —

Inclusion or exclusion of first and last days in computing time for jury drawing, or furnishing of jury list, which must take place a certain number of days before a known future date, 98 ALR2d 1421.

Validity of requirement of practice of selecting prospective jurors exclusively from list of registered voters, 80 ALR3d 869.

Validity of statutory classifications based on population — jury selection statutes, 97 ALR3d 434.

Age group underrepresentation in grand jury or petit jury venire, 62 ALR4th 859.

I.General Consideration

Constitutionality. —

This section is not violative of Alaska Const., art. I, § 11. West v. State, 409 P.2d 847 (Alaska 1966).

Names of persons for the jury panel are randomly selected from the jury list by the court clerk at a public drawing. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

Summoning jurors from less than entire judicial district. —

The question of how the superior court is to make the decision as to whether jurors should be summoned from less than the entire judicial district is for the court to determine in its discretion. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

The legislature has given to the superior court the power to determine whether jurors should be summoned from less than the entire judicial district. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Expense is standard which guides court. —

The standard which guides the court in making a determination as to whether jurors should be summoned from less than the entire judicial district is whether a large and unnecessary expense is involved in obtaining jurors from all parts of the district. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

It is not required that there be equal representation on juries of every economic, social, religious, racial, political, and geographical group of the entire judicial district to maintain the broad base that the jury system is designed to have. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Selecting only jurors residing within 30 miles of trial site does not violate this section, nor does this section violate Art. 1, § 11 of the Alaska constitution. —

West v. State, 409 P.2d 847 (Alaska 1966).

A grand jury selected from the city of Anchorage and an area within a 15-mile radius of the city is a jury which satisfies proper standards of jury selection. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

The policy of calling jurors only from an area within a 15-mile radius of the city of Anchorage does not result in the exclusion from jury service of any particular and defined stratum of society so as to detract from the broad base that the jury system is designed to have. Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Technical violation not reversible error. —

While the court clerk’s decision to disqualify all jurors living outside of Kodiak proper and her later decision to summon only those Kodiak residents that she could reach by telephone technically violated the statutory requirement that the names of prospective jurors be randomly selected from those qualified, such violations did not prejudice defendant’s rights and hence, did not constitute reversible error. Calantas v. State, 599 P.2d 147 (Alaska 1979).

Applied in

Vail v. State, 599 P.2d 1371 (Alaska 1979).

Quoted in

Irwin v. Radio Corp. of Am., 430 P.2d 159 (Alaska 1967).

Cited in

Green v. State, 462 P.2d 994 (Alaska 1969); Smith v. State, 484 P.3d 610 (Alaska Ct. App. 2021).

II.Bias of Officials

Purpose of jury selection procedures. —

Alaska’s random and public jury selection procedures are designed to insulate the selection process from the personal interests and biases of governmental officials. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

Mere claim of benefit did not suggest officials biased. —

The mere claim, that officials conducting proceedings for selecting jurors who composed a condemnation trial panel stood to benefit from the construction of a new courthouse, in no way suggested that those officials harbored any personal interest or bias against owners whose lots were to be condemned for the construction. Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

There is a presumption that an official duty has been regularly performed unless the challenging party can show a miscarriage of the official duty. —

See Tallman v. Department of Pub. Works, 506 P.2d 679 (Alaska 1973).

Collateral references. —

Confusion of name or identity in drawing, summoning, calling or impaneling, juror in civil case, as affecting verdict, 89 ALR2d 1242.

I.General Consideration

Editor’s notes. —

Many of the cases cited below were decided under former statutes that differed in some respects from this section and AS 09.25.020 . The notes should be read with this fact in mind.

“Subscribed” means signed at end of instrument. —

The word “subscribed” means, as used in the statute of frauds, a signature of the person to be charged placed immediately at the end of a printed or written instrument. Geist v. O'Connor, 92 F. Supp. 451, 13 Alaska 15 (D. Alaska 1950).

Application to contracts made out of state. —

If the lex loci contractus is procedural and the law of Alaska is primarily substantive, the fundamental public policy of Alaska should require that no contract invalid under the Alaska statute of frauds, if made in Alaska, escapes invalidity under the statute of frauds just because it is made outside of Alaska. Alaska Airlines v. Stephenson, 217 F.2d 295, 15 Alaska 272 (9th Cir. Alaska 1954).

Statute may not be used to effect fraud. —

Equity will not allow the statute of frauds to be used as a means of effecting the fraud it is designed to prevent. Rassmus v. Carey, 11 Alaska 456 (D. Alaska 1947).

Oral modification of contract within statute may be valid. —

If an agreement required to be in writing under the statute of frauds is modified by a subsequent oral agreement, which does not in itself constitute a contract within the statute of frauds, the modification is valid and binding upon the parties. Stamey v. Hemple, 173 F. 61, 3 Alaska Fed. 428 (9th Cir. Alaska 1910).

Oral change in time of performance. —

A subsequent oral agreement merely for a change in the time of performance of a written contract is valid. Stamey v. Hemple, 173 F. 61, 3 Alaska Fed. 428 (9th Cir. Alaska 1910).

An oral promise to execute a written contract, where a written contract was necessary to satisfy the statute of frauds, must itself have satisfied the statute of frauds. Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130 (Alaska 1996).

Writings sufficient to establish intent to form trust. —

In a dispute between a discontinued church and the Alaska Missionary Conference concerning real property and entitlement to the church’s corporate entity, although an agreement to establish a trust was unenforceable unless it or some note of it was in writing, the writings under consideration, including a certificate of organization, the church’s request to join the Alaska Missionary Conference, and the report of pastors, were sufficient evidence of an intent to form a trust to satisfy the statute of frauds, paragraph (a)(9) of this section. St. Paul Church, Inc. v. Bd. of Trs. of the Alaska Missionary Conf. of the United Methodist Church, Inc., 145 P.3d 541 (Alaska 2006).

The defense of the statute of frauds must be specifically pleaded. Devine v. Cordovado, 15 Alaska 232 (D. Alaska 1954).

Applied in

Jackson v. White, 556 P.2d 530 (Alaska 1976); Hall v. Add-Ventures, 695 P.2d 1081 (Alaska 1985); Alaska Continental v. Trickey, 933 P.2d 528 (Alaska 1997).

Quoted in

Gray v. Fields, 440 P.2d 855 (Alaska 1968); Aiken v. Jefferson, 550 P.2d 813 (Alaska 1976); Penn v. Ivey, 615 P.2d 1 (Alaska 1980); Schachle v. Rayburn, 667 P.2d 165 (Alaska 1983); Pavek v. Curran, 754 P.2d 1125 (Alaska 1988); Young v. Embley, 143 P.3d 936 (Alaska 2006); Dixon v. Dixon, 407 P.3d 453 (Alaska 2017).

Stated in

Se. Alaska Conservation Council, Inc. v. Dep't of Nat. Res., 470 P.3d 129 (Alaska 2020).

Cited in

King v. Richards, 584 P.2d 50 (Alaska 1978); Martin v. Mears, 602 P.2d 421 (Alaska 1979); Valdez Fisheries Dev. Ass'n v. Alyeska Pipeline Serv. Co., 45 P.3d 657 (Alaska 2002); Norville v. Carr-Gottstein Foods Co., 84 P.3d 996 (Alaska 2004); AAA Valley Gravel, Inc. v. Totaro, 219 P.3d 153 (Alaska 2009); Chilkoot Lumber Co., Inc. v. Rainbow Glacier Seafoods, Inc., 252 P.3d 1011 (Alaska 2011); Alaska Fur Gallery, Inc. v. First Nat'l Bank Alaska, 345 P.3d 76 (Alaska 2015).

II.Memorandum

Only formalities are those required by this section. —

There are no formalities required by Alaska law for a memorandum setting forth an agreement to sell real property except as contained in the statute of frauds. Weiss v. Girtz, 6 Alaska 547 (D. Alaska 1922).

Note need not be formal or complete. —

In general, contracts for the sale of land are unenforceable unless the agreement is in writing or a note or memorandum of it is in writing and signed by the party, or his agent, who seeks to avoid performance, but this note or memorandum need not be formal or complete. Fleckenstein v. Faccio, 619 P.2d 1016 (Alaska 1980).

A writing may be sufficient even though it is cryptic, abbreviated, and incomplete. Fleckenstein v. Faccio, 619 P.2d 1016 (Alaska 1980).

Memorandum must contain necessary elements of contract. —

The note or memorandum, to take the defendant’s promise out of the statute, must contain the necessary elements of the promise and must contain the mutual terms of the contract. Alaska Siberian Nav. Co. v. Polet, 7 Alaska 374 (D. Alaska 1926).

Omission of consideration cannot be supplied by pleading. —

If the consideration does not clearly appear in the written memorandum, this omission cannot be rectified by allegations in the complaint. Alaska Siberian Nav. Co. v. Polet, 7 Alaska 374 (D. Alaska 1926).

Subject matter of contract must be described so as to be identifiable. —

The subject matter of a contract falling within the statute of frauds must be so described in the memorandum as to be capable of certain identification. If, however, the description contained in the memorandum points to specific property, parol evidence is admissible to identify that property, the rule being that that is certain which is capable of being made certain. Weiss v. Girtz, 6 Alaska 547 (D. Alaska 1922).

There must be some descriptive identification of the particular tract of land for the contract to be enforceable. Fleckenstein v. Faccio, 619 P.2d 1016 (Alaska 1980).

Description must be easily understood. —

If the description given in the memorandum identifies the property by references that can be easily understood, such as a popular name for it, or reference to an addition to a town, without naming the town, which can easily be found by reference to plats, such descriptions are sufficient, if oral evidence will supply the connection. Weiss v. Girtz, 6 Alaska 547 (D. Alaska 1922).

Extrinsic evidence may be used to apply description. —

If a description can be applied by extrinsic evidence, it is sufficient. Weiss v. Girtz, 6 Alaska 547 (D. Alaska 1922).

When a man signs a memorandum, the agreement ought to be sufficient whenever it can be shown by reliable testimony precisely what property was agreed to be sold. Weiss v. Girtz, 6 Alaska 547 (D. Alaska 1922).

Use of extrinsic evidence to correct description that is hopelessly defective. —

In Weiss v. Girtz, 6 Alaska 547 (1922), the rule which is employed in construing defective descriptions in memoranda for the sale of realty was recognized, namely, that extrinsic evidence may be received to show the application of the terms of the description given in the memorandum, but not to supply missing elements without which the description is hopelessly defective. Mitchell v. Land, 355 P.2d 682 (Alaska 1960).

Endorsement of check for easement held insufficient as memorandum. —

Writing on the endorsement of a check in part payment for an easement for a roadway, stating the purchase price and balance remaining, was not a sufficient memorandum to satisfy the statute with respect to an alleged contract for an exclusive easement since it failed to describe any land and did not give any intimation that the easement was to be exclusive or for a private roadway. Mitchell v. Land, 355 P.2d 682 (Alaska 1960).

Memorandum need not have been preserved. —

The law does not require persons dealing with an agent to secure from him or the principal a writing signed by the principal, which they must preserve and use as evidence in court should the occasion arise. Nygard v. Dickinson, 97 F.2d 53, 9 Alaska 279 (9th Cir. Alaska 1938).

The requirement of this section that the authority of an agent to enter into an agreement concerning real property must be in writing was satisfied by a power of attorney from one co-owner of a mining claim to another, where although the instrument itself was not in evidence, its existence was conclusively established by the uncontradicted testimony of one of the co-owners that he had such a power of attorney from the other, but that it had been destroyed or had expired at the time of the trial; also that he had written the other of his action in entering into a contract agreeing to transfer an interest in the claim and had received a reply that it was satisfactory, but that he did not have the letters. Nygard v. Dickinson, 97 F.2d 53, 9 Alaska 279 (9th Cir. Alaska 1938).

Signed receipt. —

Applying the test that a note or memorandum satisfies the statute of frauds when it convinces the court there is no serious possibility of consummating a fraud by enforcement in light of the admitted facts, surrounding circumstances and all explanatory, corroborative and rebutting evidence, a signed receipt issued by the seller of land to a purchaser was held a sufficient memorandum. Fleckenstein v. Faccio, 619 P.2d 1016 (Alaska 1980).

III.Agreement Not to Be Performed Within Year

Section only applies to contracts not intended to be performed within year. —

Paragraph (a)(1) applies only to contracts which by their terms are not to be performed within a year. Cascaden v. Bell, 257 F. 926, 4 Alaska Fed. 751 (9th Cir. Alaska 1919).

To make a parol contract void it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made. Bell v. Cascaden, 6 Alaska 35 (D. Alaska 1918), aff'd, 257 F. 926, 4 Alaska Fed. 751 (9th Cir. Alaska 1919).

In order for the statute of frauds to apply, it must appear that the parties intended, when they made the contract, that it should not be performed within the year. Howarth v. First Nat'l Bank, 540 P.2d 486 (Alaska 1975).

A contract is not governed by the requirements of the statute of frauds unless it contains a negation of the right or capability of performance within the year. Howarth v. First Nat'l Bank, 540 P.2d 486 (Alaska 1975).

Contracts not certain to be performed within year. —

Where no time was specified for the payment of the balance of a debt to statute of frauds did not apply; it does not apply to contracts which may or may not be performed within that time. Cascaden v. Bell, 257 F. 926, 4 Alaska Fed. 751 (9th Cir. Alaska 1919).

If the contract, according to the intentions of the parties as shown by the terms of the contract, may be fully performed within a year from the time it is made, it is not within the statute, even though the time of its performance is uncertain, and may probably extend, be expected by the parties to extend, and in fact does extend, beyond the year. Howarth v. First Nat'l Bank, 540 P.2d 486 (Alaska 1975).

IV.Promise to Answer for Debt of Another

Promise primarily to subserve promisor’s interest. —

Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute of frauds, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of existinguishing that liability. Cascaden v. Bell, 257 F. 926, 4 Alaska Fed. 751 (9th Cir. Alaska 1919).

An agreement to pay the debt of another does not come within the statute of frauds where the surety promisor’s “main purpose” or “leading object” is to benefit his own pecuniary or business position. Merdes v. Underwood, 742 P.2d 245 (Alaska 1987).

Promise for which promisor receives consideration. —

Where the facts show that the debtor has transferred or delivered to the promisor, for his own use or benefit, money or property in consideration of the promisor’s agreement to assume and pay the outstanding debt, and he thereupon promises to pay, that promise is an original one and without the statute, and the promisor assumes the indebtedness and becomes primarily liable for its discharge, independent of any liability of the original debtor. Chena Lumber & Light Co. v. Laymon, 4 Alaska 221 (D. Alaska 1910).

Contract collateral to initial one creating debt. —

Where no consideration was expressed in a written memorandum of a contract to answer for the debt of another, and such contract was wholly collateral to and noncontemporaneous with a contract creating the debt in the first instance, a new consideration was required to take the promise out of the statute. Alaska Siberian Nav. Co. v. Polet, 7 Alaska 374 (D. Alaska 1926).

V.Real Property

A.In General

Sufficiency of memorandum. —

As to sufficiency of memorandum respecting real property, see analyses line II, “Memorandum.”

A license is not an interest in real property within the terms of the statute of frauds relating to the transfer of interests in real property. Mertz v. J.M. Covington Corp., 470 P.2d 532 (Alaska 1970).

A license passes no interest, nor alters or transfers property in anything, but only makes an action lawful which, without it, had been unlawful. Mertz v. J.M. Covington Corp., 470 P.2d 532 (Alaska 1970).

An agreement which creates a license is not a conveyance of a substantial interest in real property. Mertz v. J.M. Covington Corp., 470 P.2d 532 (Alaska 1970).

Full performance precluding application of statute. —

Although an oral agreement between a man and a woman that he would return a cabin to her, and she would leave her house to him upon her death, violated the statute of frauds, his acceptance of the house after her death as the bargained-for-benefit in exchange for the return of the cabin constituted full performance of the contract, thus precluding application of the statute of frauds. Dressel v. Weeks, 779 P.2d 324 (Alaska 1989).

Reformation of deed. —

The statute of frauds is no impediment to the reformation of a deed. Straight v. Hill, 622 P.2d 425 (Alaska 1981).

Legal description. —

Under Alaska law, the street address contained in a deed of trust sufficiently identified the real property to create a valid secured interest in that property because the legal description for the property could be ascertained through an address search for the property in the website for the Municipality of Anchorage. In re Moore, — B.R. — (Bankr. D. Alaska Jan. 15, 2014).

Conveyance of mining claim. —

Although a mining claim is possessory in character and no written instrument is necessary to create it, it is nevertheless real property and a written instrument is necessary to convey an interest therein. Nygard v. Dickinson, 97 F.2d 53, 9 Alaska 279 (9th Cir. Alaska 1938).

As a general rule, to which there are exceptions, an oral agreement for the sale of a mining claim or of any interest therein, or to charge or encumber it, is void, and it can only be conveyed by deed. Cascaden v. Dunbar, 2 Alaska 408 (D. Alaska 1905).

Admission of making of agreement. —

Borrower’s statute of frauds argument under this section, based on the lender’s failure to produce a written deed of trust note, lacked merit because the borrower voluntarily admitted the making of an agreement with regard to the parties’ mortgage loan transaction. Taylor v. Wells Fargo Home Mortg., 301 P.3d 182 (Alaska 2013).

Oral promise to convey interest for staking claim for another. —

If one gratuitously stakes a mining claim for and in the name of another, he cannot enforce specific performance of an oral promise made by the principal subsequent to the location, that he will convey an interest in the claim to him in consideration for his services in locating the mine, because such oral promise is within the statute of frauds and void. Cascaden v. Dunbar, 2 Alaska 408 (D. Alaska 1905).

Oral agreement for joint venture to locate claim. —

An oral agreement for a joint venture to acquire ownership of a specific mining claim which was to be located by the parties through their common efforts was not within the statute of frauds. Hendrichs v. Morgan, 167 F. 106, 3 Alaska Fed. 244 (9th Cir. Alaska 1909).

An agreement between two or more persons to explore the public domain, and to discover and locate a mining claim or claims for the joint benefit of the contracting parties does not fall within the statute of frauds, and need not be in writing. Shea v. Nilima, 133 F. 209, 2 Alaska Fed. 307 (9th Cir. Alaska 1904).

An oral agreement by which plaintiff at his own expense was to proceed to search for, prospect, and stake certain mining claims in the name of the defendants, in consideration of which the defendants agreed to record the locations and convey to plaintiff a one-half interest therein, was a joint venture to which both parties to the agreement stipulated to contribute services and money for their joint and equal benefit and did not come within the statute of frauds. Cascaden v. Dunbar, 157 F. 62, 2 Alaska Fed. 835 (9th Cir. Alaska 1907), cert. denied, 212 U.S. 572, 29 S. Ct. 682, 53 L. Ed. 656 (U.S. 1908).

Easement for roadway. —

An easement for a roadway constituted an interest in land, and under the applicable provisions of the statute of frauds could not be conveyed except by an instrument in writing. Mitchell v. Land, 355 P.2d 682 (Alaska 1960).

Partner conveying interest of copartner as tenant in common. —

When real estate is held by a mercantile firm as an aid to its mercantile business, and the title stands of record in the names of the partnership and the partners severally as tenants in common, and no necessity is shown for one partner selling it to pay present debts or obligations of the firm after having first exhausted the partnership personal property in such payment, one partner cannot convey another partner’s interest by deed unless authorized to do so in writing, as required by statutes. Runner v. Woitke, 2 Alaska 391 (D. Alaska 1905).

B.Agents

Requirement that agent’s authority be in writing. —

Paragraph (7) of subsection (a) and subsection (b) of this section embody the general rule as to the requirement that an agent’s authority be in writing where an interest in land is being conveyed. AS 09.25.020 (4) embodies an admissions exception. Fleckenstein v. Faccio, 619 P.2d 1016 (Alaska 1980).

A wife’s judicial admission that her husband had authority to sell her property constituted an exception to Alaska’s statutory requirement that an agent’s authority be in writing where an interest in land is being conveyed. Fleckenstein v. Faccio, 619 P.2d 1016 (Alaska 1980).

Acceptance required by principal as prerequisite to AS 09.25.020 (1) exception. —

Although the language of AS 09.25.020 (1) is sufficiently broad to suggest that acceptance by an agent is sufficient, the proper construction requires that the acceptance must be by the principal before the exception provided for in AS 09.25.020 (1) is applicable to subsection (b) of this section (i.e., agreements concerning real property by an agent). Curran v. Hastreiter, 579 P.2d 524 (Alaska 1978).

Real estate broker’s commission. —

Where a purchase agreement signed by the party to be bound contained a provision expressly acknowledging that the real estate broker was entitled to a commission for services rendered in the transaction in question, the writing was sufficient to meet the requirements of this section, entitling the real estate broker to its commission. Hausam v. Wodrich, 574 P.2d 805 (Alaska 1978).

Documents comprising a real estate brokerage agreement met the requirements of this section where the space to be leased was described by the name of the building and the amount of commission was stated by the commission rate per square foot. Ranier Fund v. Blomfield Real Estate Co., 717 P.2d 850 (Alaska 1986).

Real estate broker may not recover the reasonable value of his services in quantum meruit when he has failed to comply with a statute specifically requiring contracts for commissions to be in writing. Valkama v. Harris, 575 P.2d 789 (Alaska 1978).

Enforcement of oral agreement between real estate agent and client. —

Although a real estate agent cannot enforce an oral agreement, a client can. Black v. Dahl, 625 P.2d 876 (Alaska 1981).

VI.Part Performance

The foundation of jurisdiction under subsection (b). —

The jurisdiction is based upon the just principle that when acts of part performance have been done in pursuance of and in reliance on the verbal contract, with the knowledge and consent of the other party, and the relations of the parties are so changed by reason thereof as to prevent a restoration to their former condition, it would be a fraud and encourage bad faith to permit the statute to be interposed as a defense, whereby one party would reap the benefit of the acts of part performance, and the other be left without any remedy, and liable for damages as a trespasser. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Equity does not deny nor overrule the statute of frauds, but it declares that fraud or mistake creates obligations and confers remedial rights which are not within the statutory prohibition. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Equity relaxes rigid rule of statute to prevent fraud. —

The statute of frauds requires a contract concerning real estate to be in writing, but courts of equity have stepped in and relaxed the rigidity of this rule, and hold that a part performance removes the bar of the statute, on the ground that it is a fraud for the vendor to insist on the absence of a written instrument, when he had permitted the contract to be partly executed. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Vendee taking possession and making improvements. —

When the vendee takes and retains possession in pursuance of a verbal agreement and makes improvements upon the land, he thereby acquires an equitable estate in the premises and to deny him the right to establish the terms of the verbal contract upon the faith of which he acted would permit the vendor to practice a fraud. Mitchell v. Land, 355 P.2d 682 (Alaska 1960).

If the purchaser has gained more by the possession and use of the land than he has lost by his improvements, or if he has been in fact fully compensated for the improvements, they will not be available to him as a ground for specific execution. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Payment of purchase price is not sufficient part performance. —

The mere payment of the purchase price by the vendee, without other acts, is not sufficient as an act of part performance to take an oral contract for the sale of real estate out of the statute of frauds. Mitchell v. Land, 355 P.2d 682 (Alaska 1960).

Although part payment, tender and taking possession is enough. —

Possession of premises by the purchaser, in connection with payment of part of the price and a tender of the balance, is such part performance as to entitle him to a decree for specific performance. Geist v. O'Connor, 92 F. Supp. 451, 13 Alaska 15 (D. Alaska 1950).

The possession that is required to sustain part performance of a parol contract must be visible, open, notorious, and exclusive. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Possession by the vendee in pursuance of an oral agreement for the sale of land must be notorious, exclusive, continuous, and maintained. Mitchell v. Land, 355 P.2d 682 (Alaska 1960).

The possession that will be deemed a part performance of a parol contract is an actual possession, taken by the vendee under the contract, with the consent of the vendor, and with a view to the performance of the agreement, and not the fictitious possession which the law imputes to the legal ownership when there was no actual adverse possession. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

A mere symbolical or constructive change of possession. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Assessment work on mining claim is sufficient part performance. —

Assessment work done by persons to whom the co-owner of a mining claim had agreed to give an interest therein was part performance on their part, which would obviate the necessity for their signature appearing on the memorandum. Nygard v. Dickinson, 97 F.2d 53, 9 Alaska 279 (9th Cir. Alaska 1938).

Expending money and performing work under contracts. —

Where defendants expended money and performed work on a claim on the strength of an agreement which was ratified by the plaintiff, and permitted the use by the plaintiff of their claim, plaintiff was estopped to assert agreement violated this section. Rassmus v. Carey, 11 Alaska 456 (D. Alaska 1947).

Promissory estoppel. —

Promissory estoppel is carried into the statute of frauds if the additional factor of a promise to reduce the contract to writing is present. Alaska Airlines v. Stephenson, 217 F.2d 295, 15 Alaska 272 (9th Cir. Alaska 1954).

Parol agreement must contain all elements of binding contract except writing. —

To authorize equity to interfere, and enforce the specific performance of a parol agreement for the sale of land upon the ground of part performance, it must contain all the elements of a binding obligation, and necessary to the enforcement of any contract, except the written memorandum required by the statute. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Parol agreement must be free of fraud or mistake. —

Before an oral contract for the conveyance of land will be specifically enforced, it must be perfectly fair in all its parts, free from any misrepresentation or misapprehension, fraud or mistake, imposition or surprise; not an unconscionable or hard bargain. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Requirements for oral agreement for conveyance of land. —

Before an oral contract for the conveyance of land will be specifically enforced it must be clear, certain, definite, just, reasonable, and mutual in all its parts, and if it be wanting in any of these essentials it cannot be enforced. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Mistakes as to legal rights may defeat specific performance. —

Mistakes with respect to defendant’s private legal rights and liabilities may be properly regarded, as in great measure they really are, and may be dealt with as mistakes of fact. Such mistakes, even though complainants may have done nothing to induce them, may be proved in defense and may defeat a specific performance. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Inadequacy of consideration strengthens other inequities in determining fairness of contract. —

With respect to inadequacy of consideration, in conjunction with other inequitable circumstances the weight of each circumstance is greatly increased by its conjunction with the other, and such circumstances are often of decisive influence in determining the unfairness of the contract; such circumstances are undue influence, ignorance of one’s legal rights, or a marked inequality of the parties. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Contract must be clearly proved. —

It is not sufficient that a specific contract be alleged, but it must be clearly and satisfactorily proved in order to take it out of the statute by part performance. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Proof of tender, sufficient part performance, and delivery of possession. —

A mere breach of a parol promise will not make a case for the interference of a chancellor. It is plain that a party who claims such interference has the burden of proof thrown on him. He knows that the law requires written evidence of such contracts, in order to their validity. Treat v. Ellis, 6 Alaska 290 (D. Alaska 1920).

Partial performance by plaintiffs held sufficient to take any oral agreement between the parties to convey a one-half interest in a duplex to plaintiffs from the bar of the statute of frauds. Prokopis v. Prokopis, 519 P.2d 814 (Alaska 1974).

Collateral references. —

72 Am. Jur. 2d, Statute of Frauds, § 1 et seq.

37 C.J.S., Frauds, Statute of, § 1 et seq.

Restrictions of use of real property by oral agreement, 5 ALR2d 1316.

Standing timber, sale or contract for sale of, as within provisions of statute of frauds respecting sale or contract of sale of real property, 7 ALR2d 517.

Statute of frauds as affecting enforceability as between the parties of agreement to purchase property at judicial or tax sale for their joint benefit, 14 ALR2d 1294.

Failure to object to parol evidence, or voluntary introduction thereof, as waiver, 15 ALR2d 1330.

Question, as one of law for court or of fact for jury, whether oral promise was an original one or was a collateral promise to answer for the debt, default, or miscarriage of another, 20 ALR2d 246.

Description or designation of land in contract or memorandum of sale, under statute of frauds, 23 ALR2d 6.

Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds, 23 ALR2d 164.

Exception making the statute of frauds provision inapplicable where goods are manufactured by seller for buyer, 25 ALR2d 672.

Oral contract for personal services so long as employee is able to continue in work, to do satisfactory work, or the like, as within statute of frauds relating to contracts not to be performed within year, 28 ALR2d 878.

Oral acceptance of written offer by party sought to be charged as satisfying statute of frauds, 30 ALR2d 972.

Effect of attempted cancellation or erasure in memorandum otherwise sufficient to satisfy statute of frauds, 31 ALR2d 1112.

Construction of statute requiring representations as to credit, etc., of another to be in writing, 32 ALR2d 743.

Corporate debt, promise by stockholder, officer, or director to pay, 35 A.L.R.2d 906.

Statutes of frauds as applicable to seller’s oral warranty as to quality or condition of chattel, 40 ALR2d 760.

Statute of frauds as affecting question when real estate owned by partner before formation of partnership will be deemed to have become asset of firm, 45 ALR2d 1015.

Joint adventure agreement for acquisition, development, or sale of land as within provision of statute of frauds governing broker’s agreement for commission on real-estate sale, 48 ALR2d 1042.

Promissory estoppel, 48 ALR2d 1079.

Contract to support, maintain, or educate a child as within provision of statute of frauds relating to contracts not to be performed within a year, 49 ALR2d 1293.

Necessity of writing to create hunting or fishing rights, 49 ALR2d 1400.

Applicability of statute of frauds to promise to pay for medical, dental, or hospital services furnished to another, 64 ALR2d 1071.

Solid mineral royalty as real or personal property for purposes of statute of frauds, 68 ALR2d 734.

What constitutes promise made in or upon consideration of marriage within statute of frauds, 75 ALR2d 633.

Part performance doctrine with respect to renewal option in lease not complying with statute of frauds, 80 ALR2d 425.

Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds, 81 ALR2d 991.

Enforceability, under statute of frauds provision as to contracts not to be performed within a year, of oral employment contract for more than one year but specifically made terminable upon death of either party, 88 ALR2d 701.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit, 21 ALR3d 9.

Applicability of statute of frauds to agreement to rescind contract for sale of land, 42 ALR3d 242.

Validity of lease or sublease subscribed by one of the parties only, 46 ALR3d 619.

Action by employee in reliance on employment contract which violates statute of frauds as rendering contract enforceable, 54 ALR3d 715.

Promissory estoppel as basis for avoidance of statute of frauds, 56 A.L.R.3d 1037.

Check given in land transaction as sufficient writing to satisfy statute of frauds, 9 ALR4th 1009.

Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds, 13 ALR4th 1153.

Satisfaction of statute of frauds by e-mail, 110 ALR5th 277.

I.General Consideration

Common law. —

Under the common law, a transfer by an insolvent debtor to pay or to secure an antecedent debt has never been treated as a transfer to hinder, delay, or defraud creditors, although it is self-evident that other creditors are necessarily hindered and delayed by such a transfer. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

At common law it was not illegal for a debtor to pay one of his creditors in full, even though he did not have enough left to pay his other creditors in full or even in part. Such a payment was not, and is not now, a fraudulent conveyance. The payment is merely the performance of an existing legal duty. Nor is it illegal for the debtor to transfer property as security for an existing debt; the value of the property in excess of the debt remains available to other creditors. The conveyance of property to a creditor in satisfaction of an existing debt is a fraudulent conveyance only in case its value is in excess of the debt and the purpose of the debtor is to keep that excess out of the hands of his other creditors. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Section not applicable where constructive notice given by recordation. —

Defendants may not avail themselves of this section where plaintiff’s recorded conditional sales contract is constructive notice of plaintiff’s right and hence the defendants are not bona fide purchasers. Oslund v. Mansfield, 107 F. Supp. 220, 14 Alaska 26 (D. Alaska 1952).

This section establishes only a prima facie presumption of fraud. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971); Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Prima facie presumption of fraud is rebuttable. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971); Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Effect of presumption. —

The presumption serves merely to shift to the vendee the burden of proving that a conveyance was made without fraudulent intent. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971); Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Under this section, if a vendee has failed to establish immediate and continued possession over personalty which he has purchased, and if he makes no effort to show that the transaction was entered into in good faith, then a finding of fraud will be compelled. Where, on the other hand, the grantee introduces evidence tending to show that the conveyance in question was transacted in good faith, then the presumption will be dispelled, and it will be incumbent upon the finder of fact to determine whether there was actually an intent to defraud creditors. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971); Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Once the presumption is established the opposing party has the burden of proving that the non-existence of the presumed fact is more probable than its existence. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Effect of fact that presumption statutory. —

The only effect resulting from a presumption of fraud being a statutory presumption is that the party asserting fraud does not have to introduce evidence of fraudulent intent. He still must plead and prove the conditions necessary to invoke the presumption. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Adequacy of consideration rebuts presumption. —

A showing that there was adequate consideration for the sale of property retained by a vendor tends to rebut the presumption of fraud that arises from its retention. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

While retention of possession by a vendor gives rise to a prima facie presumption of fraud, proof of payment of a valuable consideration for the property rebuts the presumption. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Adequacy of consideration is usually judged by broad standards for the purpose of determining whether fraud is indicated in a transaction. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Adequacy of consideration in any given instance cannot be viewed apart from the particular circumstances in which the parties find themselves. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Sale under pressure of economic necessity. —

Any sale conducted under the pressure of economic necessity is bound to produce less than an optimal consideration but this fact will not affect the adequacy of consideration. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

The test to be applied is whether the disparity between the true value and the price paid is so great as to shock the conscience and strike the understanding at once with the conviction that such transfer never could have been made in good faith. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

This section qualifies the provisions of AS 34.40.010 and 34.40.090 , which concern fraudulent transfers of property, by erecting a prima facie presumption of fraud in cases where a sale of personal property is not “accompanied by the immediate delivery and the actual and continued possession” by the vendee. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Where the creditor offered a satisfactory explanation for his failure to take more overt steps in attempting to reestablish possession of a vessel, and where he further showed that the quitclaim deed delivered by the debtor was issued in exchange for valuable consideration, the trial court was unjustified in relying on the statutory presumption to invalidate as fraudulent the conveyance in question. Under these circumstances, the trial court should have considered the validity of the transaction as a question of fact pursuant to AS 34.40.010 and 34.40.090 . Accordingly, the court should have ruled on the issue whether, in the conveyance of the vessel to the creditor, there was an actual, as opposed to a presumed, intent to hinder, delay or defraud other creditors. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

A bona fide preference of one creditor over others will be upheld, even where the debtor is or will be rendered insolvent, or where other creditors are threatening suit, or where the preferred creditor is aware of the debtor’s insolvency. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

A bona fide preference by an insolvent debtor does not, in itself, constitute evidence of fraud. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

In the absence of bankruptcy laws or express statutory prohibition, an insolvent debtor may convey property to one creditor, even if it means that the debtor’s assets will thereby be depleted, and the claims of other creditors will be defeated. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Effect of permitting single creditor to set aside preferential transfer. —

To allow a creditor, acting in his own interest alone, to set aside a preferential transfer as one in fraud of creditors would amount to substituting that creditor as the person preferred in place of the creditor chosen by the debtor. Blumenstein v. Phillips Ins. Ctr., 490 P.2d 1213 (Alaska 1971).

Real and personal property transferred by one instrument. —

While under this section, the fraud presumed from want of change in possession is confined to personal property, yet where both real and personal property were transferred by one instrument, which property constituted the entire estate of the debtor, and there was no actual change of possession of any of the property until long subsequent, this taken in connection with various other circumstances was sufficient to shift the burden of evidence as to the bona fides of the sale from the plaintiff to the defendants. Meredith v. Thompson, 4 Alaska 360 (D. Alaska 1911).

Quoted in

First Nat'l Bank v. Enzler, 537 P.2d 517 (Alaska 1975).

II.Pleading

Presumption as affirmative defense. —

The presumption of prima facie fraud established by this section should be construed as an affirmative defense in the same manner as actual fraud. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

A statutory presumption of fraud, similar to fraud, falls within the definition of an adverse defense since a simple denial of the complaint would not raise such a defense. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Presumption must be specially pleaded. —

A statutory presumption of fraud thus should be considered an affirmative defense, subjecting the party to the requirement of Civ. R. 8(c) that such a defense be specially pleaded. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Waiver from failure to plead. —

Civil R. 8(c) requires a party to plead affirmatively fraud as a defense, and failure to so plead results in a waiver of the defense. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Party not prejudiced by raising issue of fraud at trial. —

Where a party was on notice that the defense that the sale was ineffective due to the lack of delivery and change of possession of the property would be raised at trial, since these are the factual bases for the statutory presumption of fraud, it does not appear that he was prejudiced by the raising of the issue and the resulting instruction of the court, even though the defense was not affirmatively pleaded. Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Review where issue of fraud not raised in pleadings. —

Even if the issue of fraud has not been raised in the pleadings of the parties, a party is still entitled to review of the issue on appeal if the issue was tried by the express or implied consent of the parties, under Civ. R. 15(b). Rollins v. Leibold, 512 P.2d 937 (Alaska 1973).

Collateral references. —

Construction and application of UCC § 2-201(3)(b) rendering contract of sale enforceable notwithstanding statute of frauds to extent it is admitted in pleading, testimony, or otherwise in court, 88 ALR3d 416.

Construction and application of UCC § 2-201(3)(c) rendering contract of sale enforceable notwithstanding statute of frauds with respect to goods for which payment has been made and accepted or which have been received and accepted, 97 ALR3d 908.

I.General Consideration

Applicability. —

Once a superior court exercised its discretion and determined that post-judgment interest was appropriate on an equalization payment which the court ordered in a divorce action, the court did not err in setting the interest rate because the court correctly applied the proper statute in setting the interest rate. Rosenberg v. Rosenberg, — P.3d — (Alaska Aug. 7, 2019) (memorandum decision).

Title inapplicable to administrative proceedings. —

Nothing in the language of Alaska Statutes Title 9 indicates that it applies to administrative proceedings; an employer’s argument that it is applicable to Alaska State Commission for Human Rights’ award was rejected because this title applies to judicial action, and subsection (a) of this section is limited to “judgments” and “decrees.” Pyramid Printing Co. v. Alaska State Comm'n for Human Rights, 153 P.3d 994 (Alaska 2007).

Regulatory Commission of Alaska appropriately followed the mandate of the Pipeline Act to order interest on refunds the pipeline owners owed at the legal rate set forth in AS 45.45.010 , rather than the floating rate set forth in this section, which is specifically tailored to tort and contract claims. Amerada Hess Pipeline Corp. v. Regulatory Comm'n of Alaska, 176 P.3d 667 (Alaska 2008).

Treating a refund suit as a common law action in assumpsit. —

Suit for a refund of overpayment of fees for nonresident holders of commercial fishing permits and licenses was a common law action in assumpsit, and this section, not AS 43.05.280 , governed the prejudgment interest award against the State. State v. Carlson, 270 P.3d 755 (Alaska), modified, — P.3d — (Alaska 2012).

Superior court judgment which merely confirmed liability under a contract was not a “judgment for the payment of money” within the true meaning of that phrase as used in this section, but was “a judgment . . . founded on a contract in writing, providing for the payment of interest” at the legal rate. Alaska State Hous. Auth. v. Riley Pleas, Inc., 586 P.2d 1244 (Alaska 1978).

Federal preemption inapplicable in state-issue case removed under 28 U.S.C.S. § 1441(b). —

In a case removed under 28 U.S.C.S. § 1441(b) that involved only state law issues, a district court errred in applying the federal rate of interest, 28 U.S.C.S. § 1961, to determine prejudgment interest; because the case, in which plaintiff sought damages for business losses relating to an oil spill, originated under state law and prejudgment interest was a substantive issue, state law applied to that issue; there was no federal preemption as no act of Congress prohibited recovery for purely economic loss, and Alaska had a strong interest in regulating oil pollution and in providing remedies for damages caused by oil spills; thus, the judgment interest rate set forth in this section applied. Sea Hawk Seafoods v. Exxon Corp. (In re Exxon Valdez), 484 F.3d 1098 (9th Cir. Alaska 2007).

Applicability of 1980 amendment. —

The 1980 amendment to this section raising the interest rate from eight percent to 10.5 percent did not apply to a judgment previously rendered. Alyeska Pipeline Serv. Co. v. Anderson, 669 P.2d 956 (Alaska 1983).

Compound interest. —

This section does not provide for compound interest on judgments. Alyeska Pipeline Serv. Co. v. Anderson, 669 P.2d 956 (Alaska 1983).

Other recourse methods bypassed. —

Where, in presenting its underlying case, the plaintiff chose not to claim a particular loan or the interest thereon as items of damage, having bypassed that option its remaining recourse was to seek prejudgment interest at the rate prescribed by law. Power Constructors v. Taylor & Hintze, 960 P.2d 20 (Alaska 1998).

Applied in

Western Airlines v. Lathrop Co., 535 P.2d 1209 (Alaska 1975); A & G Constr. Co. v. Reid Bros. Logging Co., 547 P.2d 1207 (Alaska 1976); State v. Doyle, 735 P.2d 733 (Alaska 1987); McDaniel v. McDaniel, 829 P.2d 303 (Alaska 1992); Little Susitna Constr. Co. v. Soil Processing, 944 P.2d 20 (Alaska 1997); Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116 (Alaska 1997); Romero v. Cox, 166 P.3d 4 (Alaska 2007).

Quoted in

Ogard v. Ogard, 808 P.2d 815 (Alaska 1991); Hofmann v. Von Wirth, 907 P.2d 454 (Alaska 1995); Johnson v. Olympic Liquidating Trust, 953 P.2d 494 (Alaska 1998); Beaux v. Jacob, 30 P.3d 90 (Alaska 2001); Kinn v. Alaska Sales & Serv., 144 P.3d 474 (Alaska 2006); Gov't Emples. Ins. Co. v. Gonzalez, 403 P.3d 1153 (Alaska 2017).

Stated in

Henash v. Ipalook, 985 P.2d 442 (Alaska 1999).

Cited in

State v. Alaska Continental Dev. Corp., 630 P.2d 977 (Alaska 1980); Hanson v. Kake Tribal Corp., 939 P.2d 1320 (Alaska 1997); American Computer Inst., Inc. v. State, 995 P.2d 647 (Alaska 2000); Liimatta v. Vest, 45 P.3d 310 (Alaska 2002); Brotherton v. Brotherton, 142 P.3d 1187 (Alaska 2006); Nautilus Marine Enters. v. Exxon Mobil Corp., 305 P.3d 309 (Alaska 2013); Keeton v. State, 441 P.3d 933 (Alaska 2019).

II.Constitutionality

Constitutionality. —

Even assuming that this section limits the accrual of prejudgment interest to the earlier of notice or service in personal injury, death, and damage to property cases, while preserving the right to interest from the time of injury in other tort cases, the section had a rational legislative purpose insofar as it applied to medical malpractice claims and did not violate equal protection. McConkey v. Hart, 930 P.2d 402 (Alaska 1996).

III.Rate Interest Begins to Accrue

A.In General

Constitutionality. —

This section, which fixes the pre- and post-judgment interest awarded in “quick-take” condemnations at six percent, is unconstitutional since it constitutes an unsound exception to most Alaskan lawsuits, including some condemnation actions, in which trial courts must assess pre- and post-judgment interest at the legal rate of 10.5 percent. City of Valdez v. 18.99 Acres, 686 P.2d 682 (Alaska 1984) (decided before the 1985 amendment).

This section violates the Alaska Constitution’s equal protection clause because awarding different interest rates to property owners on the basis of the type of condemnation action a government brings against them has no rational basis. City of Valdez v. 18.99 Acres, 686 P.2d 682 (Alaska 1984) (decided before the 1985 amendment).

Condemnation action. —

Superior court did not err in a condemnation action by awarding post-judgment interest at the rate of 4.25 percent because the court apparently determined the post-judgment interest rate by reference to the statute which set the rate. Keeton v. State, 441 P.3d 933 (Alaska 2019).

Date of interest on legal malpractice claim. —

Legal malpractice cause of action by a convicted defendant whose conviction had been set aside as constitutionally defective accrued upon his obtaining post-conviction relief. Therefore, under this section, prejudgment interest commenced upon service of the complaint. Shaw v. State, Dep't of Admin., 861 P.2d 566 (Alaska 1993).

Prejudgment interest starting date. —

Because a third-party defendant’s actions in the immediate aftermath of the accident appeared to show that he believed a claim might be brought against him, the written-notice requirement in subsection (b) did not control, and prejudgment interest began to accrue no later than the date of the mediation. Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634 (Alaska 2007).

Prejudgment interest in child support action. —

Because the husband failed to support the parties’ son from 1991 to September of 1997 and this arrearage remained unpaid while the parties were married, the husband’s argument that the court abused its discretion by awarding prejudgment interest for the period from September 1997 to October 2002 was rejected. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

Prejudgment interest in fraudulent conveyance action. —

Where the court determined that Chapter 7 debtor and her husband had made fraudulent conveyances, trustee was entitled to recover prejudgment interest from the date of service of trustee’s adversary proceeding until entry of judgment. Barstow v. Giordano (In re Giordano), — B.R. — (Bankr. D. Alaska Jan. 7, 2004).

Accrual date in claim by ward against guardian’s attorney. —

Court incorrectly calculated the start date for prejudgment interest where, although the defendant attorney learned on October 27, 1999, that his client had committed wrongdoing leading to the client’s ward’s loss, it was not until August 16, 2001, when the attorney received the ward’s demand letter, that he learned that she would be pursuing a claim against him. Pederson v. Barnes, 139 P.3d 552 (Alaska 2006).

Prejudgment interest in contract dispute. Prejudgment interest in contract dispute, awarded under subsection (b) of this section from the date when the buyer sent a letter that included a threat of litigation, was not erroneous; a contract cause of action usually accrues at the time of the breach of the agreement, rather than the time that actual damages are sustained as a consequence of the breach. K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702 (Alaska 2003).

No contract. —

Because there was no contract between the parties related to repair of plaintiff’s airplane, the trial court did not err in applying prejudgment interest at the statutorily set rate. Madonna v. Tamarack Air, LTD., 298 P.3d 875 (Alaska 2013).

Prejudgment interest not awarded as to future damages. —

Prejudgment interest should be awarded only as to past damages; it should not be awarded as to any future damages, discounted or nondiscounted, except as to future damages which were discounted to a date earlier than the date of trial. McConkey v. Hart, 930 P.2d 402 (Alaska 1996).

Prejudgment interest not permitted on punitive damages award. —

Where a neighbor started a large fire to clear rubbish, and the fire caused damage to the owner’s property and dog boarding business, the jury found in favor of the property owner and awarded him compensatory and punitive damages; trial court’s award of prejudgment interest on the jury’s award of punitive damages of $500 against the neighbor violated the prohibition on prejudgment interest for punitive awards set forth in subsection (c). Maddox v. Hardy, 187 P.3d 486 (Alaska 2008).

B.Notification

Notification of claim. —

Letter from plaintiff’s attorney stating that: “I have undertaken representation of [plaintiff] but am not prepared to discuss the case with you at this time” was a sufficient written notification to defendant that a claim would be made. Himschoot v. Shanley, 908 P.2d 1035 (Alaska 1996).

Subsection (b) does not require direct notice from the prospective claimant; rather, the statute establishes an objective test providing that interest begins to accrue upon written notice that would lead a prudent person to believe that a claim will be made against the person receiving the notification. Lloyd's & Inst. of London Underwriting Cos. v. Fulton, 2 P.3d 1199 (Alaska 2000), limited, Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093 (Alaska 2009).

Notice of injury and claim. —

In a medical malpractice action, where the plaintiff met with defendant physician in his office and advised him that she held him responsible for her injury and would sue if not compensated, and the defendant made a written note to himself as to her statement, such notice satisfied the requirement of this section. McConkey v. Hart, 930 P.2d 402 (Alaska 1996).

There is no exception to the rule that prejudgement interest accrues from the date of actual notice of the injury, and defendants’ argument that payment of medical expenses should result in their having to pay such interest only from the date on which those payments stopped failed. Sherbahn v. Kerkove, 987 P.2d 195 (Alaska 1999).

Inquiry notice. —

Even though notice of the foreclosure sale was mistakenly given to predecessor of beneficiary of second deed of trust rather than to the beneficiary, the beneficiary was held to have inquiry notice of the sale. Burnett, Waldock & Padgett Inv. v. C.B.S. Realty, 668 P.2d 819 (Alaska 1983).

C.Post-judgment Interest

Separate calculation of prejudgment and postjudgment interest. —

Special verdict form prepared by the state and submitted to the jury did not distinguish between past and future non-economic damages or permit the jury to return separate awards on those two claims; the supreme court remanded for award of prejudgment interest on the portion of the jury verdict that could be attributed to past non-economic damages. Alexander v. Dep't of Corr., 221 P.3d 321 (Alaska 2009).

Highest lawful contract rate. —

Where promissory note provided for “interest after maturity at the highest lawful contract rate,” award of postjudgment interest at highest rate allowable on date of maturity, pursuant to AS 45.45.010(b) interest rate formula, was proper. Riley v. Northern Commer. Co., 648 P.2d 961 (Alaska 1982).

Post-judgment interest. —

Where the superior court, in its original decree, ordered the repayment of children’s medical expenses, that judgment gave the mother the right to collect post-decree interest as a matter of course, and the mother’s case for relief therefore met the narrow criteria of Civil Rule 60(a). Jensen v. Froissart, 982 P.2d 263 (Alaska 1999).

Trial court’s use of the wrong statute to calculate postjudgment interest constituted plain error because the new statute did not apply to the case; and the appellate court reversed and remanded to correct the judgment and set the interest rate at 10.5 percent. Marine Solution Servs. v. Horton, 70 P.3d 393 (Alaska 2003).

Where former husband failed to pay a portion of his military retirement benefits to former wife as required by a divorce decree, postjudgment interest under this section accrued at the statutory rate on such sums as each payment became due. Cline v. Cline, 90 P.3d 147 (Alaska 2004), overruled, Gross v. Wilson, 424 P.3d 390 (Alaska 2018).

I.General Consideration

The general policy of the law is to uphold and maintain execution sales. Mason v. Bennett, 52 F. 343, 1 Alaska Fed. 295 (D. Alaska 1892).

Common law. —

At common law no confirmation of a sale on a legal execution was necessary. Pecaravich v. Gilmore, 6 Alaska 108 (1918).

Confirmation is authorized by this section. Lunsford v. Kaiser Gypsum Co., 516 P.2d 151 (Alaska 1973).

Applicability. —

This section governs the issuance of orders confirming sales on execution. Mallonee v. Grow, 502 P.2d 432 (Alaska 1972).

This section applies to confirmation of sale of personal property sold attendant to real property where a creditor appropriately elects this method. Queen of the N., Inc. v. LeGrue, 582 P.2d 144 (Alaska 1978).

Remedies against fraudulent sale. —

A party to the execution proceeding has three remedies against a sale fraudulently obtained: (1) He may file objections to the sale at the confirmation; (2) he may appeal from the order of the confirmation; (3) he may bring an action to set the deed aside. Ebner v. Heid, 2 Alaska 600 (D. Alaska 1905).

Confirmation does not affect rights of one in lawful possession. —

If a person has lawful possession by virtue of a previous sale on foreclosure decree, his rights are not affected by a confirmation. Pecaravich v. Gilmore, 6 Alaska 108 (1918).

The effect of a valid confirmation order is to insulate the sale procedure from subsequent challenge based upon a mere irregularity in the conduct of the sale, e.g., that the conduct of the sale did not comply with AS 09.35.160 . Lunsford v. Kaiser Gypsum Co., 516 P.2d 151 (Alaska 1973).

Confirmation is conclusive of regularity of proceedings. —

An order of confirmation is made by statute a conclusive determination of the regularity of the proceedings concerning the sale as to all persons in any other action, suit, or proceeding whatsoever. Noland v. Coon, 1 Alaska 36 (D. Alaska 1890).

Confirmation is not res judicata as to voidness or fraudulence of execution. —

Confirmation of a sale on a legal execution is a purely statutory proceeding, and, when granted, attests simply that the proceedings connected with the sale are regular. It is not res judicata as to any contention that the execution is void or fraudulent. Pecaravich v. Gilmore, 6 Alaska 108 (1918).

Effect of irregularities in preliminary proceedings. —

Although mere irregularities in preliminary proceedings are insufficient to set aside confirmed sale, it is the general rule in the United States that the confirmation of a judicial sale by a court of competent jurisdiction cures all irregularities in the proceeding leading up to or in the conduct of the sale, and that while such a sale will be set aside where fraud, mistake, or surprise is shown, mere irregularities in the preliminary proceedings do not render the sale invalid, and will not suffice to set it aside after confirmation. This section is in accord with this general rule. Heid v. Ebner, 133 F. 156, 2 Alaska Fed. 300 (9th Cir. Alaska 1904); Cowden v. Wild Goose Mining & Trading Co., 199 F. 561, 3 Alaska Fed. 874 (9th Cir. Alaska 1912).

If there was irregularity in an equitable action in issuing an execution by the clerk because he did not make and deliver to the officer a certified copy of the decree for his execution, that was an irregularity merely, which was cured by the confirmation. Lesamis v. Greenberg, 225 F. 449, 4 Alaska Fed. 340 (9th Cir. Alaska 1915).

Discretion of court where there are no substantial irregularities. —

This section seems to give the court no discretion in cases where confirmation is sought unless there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party who makes the objections to the confirmation. Mason v. Bennett, 52 F. 343, 1 Alaska Fed. 295 (D. Alaska 1892).

Officer presumed to have acted fairly. —

Where it is not claimed that there was fraud, collusion, or irregularity in the proceedings of the sale, the law presumes that the officer acted fairly and for the best interests of the parties concerned in conducting the sale. Mason v. Bennett, 52 F. 343, 1 Alaska Fed. 295 (D. Alaska 1892).

Substantial irregularity. —

Failure to list liquor license in public notice of sale and failure to sell license as directed by decree of foreclosure constitute a substantial irregularity in the sale for purposes of this section. Queen of the N., Inc. v. LeGrue, 582 P.2d 144 (Alaska 1978).

Authority to set upset price. —

This section was not intended to limit the traditional equitable authority of a court to refuse confirmation of a judicial sale; and as part of this inherent judicial authority to control the foreclosure process, a court has discretion whether to set an upset price or not. Hayes v. Alaska USA Fed. Credit Union, 767 P.2d 1158 (Alaska 1989).

II.Procedure

Issuance of order begins redemption period. —

The issuance of the order confirming sale begins the one-year redemption period under AS 09.35.250 . Mallonee v. Grow, 502 P.2d 432 (Alaska 1972).

A motion to confirm sale cannot be heard ex parte. Mallonee v. Grow, 502 P.2d 432 (Alaska 1972).

Service upon the opposing party is necessary. Mallonee v. Grow, 502 P.2d 432 (Alaska 1972).

Execution sales are always made after final judgment and the requirement of filing a motion for an order confirming sale would be meaningless if notice to opposing parties were not required. Mallonee v. Grow, 502 P.2d 432 (Alaska 1972).

Hearing on motion provides judgment debtor opportunity to object to sale. —

The hearing upon the motion to confirm sale is intended by the statute to provide the judgment debtor with the opportunity to object to the sale. Mallonee v. Grow, 502 P.2d 432 (Alaska 1972).

Only judgment debtor can object to confirmation. —

No one can be heard to object to confirmation of a sale except the judgment debtor, or, in case of his death, his representative. Pecaravich v. Gilmore, 6 Alaska 108 (1918).

Burden of proving commercial reasonableness of a sale was on the secured party, especially where the creditor purchased the property. Queen of the N., Inc. v. LeGrue, 582 P.2d 144 (Alaska 1978).

Civil Rule 60(b) motion not prohibited by subsection (d). —

The court rejected the contention that it had judicially repealed subsection (d) of this section, which applies to “any other action or proceeding” and thus precludes collateral but not direct attacks on orders of confirmation; since a Civ. R. 60(b) motion is a direct attack it is not prohibited by subsection (d) of this section. Law Offices of Murphy L. Clark v. Altman, 680 P.2d 1125 (Alaska 1984).

This section specifies no standard for appellate review of a trial court confirmation of sale. Queen of the N., Inc. v. LeGrue, 582 P.2d 144 (Alaska 1978).

Collateral references. —

Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale, 2 ALR2d 6.

Direct attack upon purchase by attorney of client’s property at or through the execution sale, 20 ALR2d 1307.