Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

BONNIE L. LUTHER, 

Appellant, 

v. 

STEVIE W. LANDER, 

Appellee. 

) 

) Supreme Court No. S-15588 

Superior Court No. 3AN-12-10439 CI 

O P I N I O N 

No. 7103 – May 13, 2016 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Paul E. Olson, Judge. 

Appearances: Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., 

Anchorage, for Appellant. Kimberlee A. Colbo, Hughes 

Gorski Seedorf Odsen & Tervooren, LLC, Anchorage, for 

Appellee. 

Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, 

Justices. [Winfree, Justice, not participating.] 

FABE, Justice. 

I. INTRODUCTION 

In November 2010 Stevie Lander was unable to complete a right turn on 

an icy road, and her vehicle slid into a car driven by Bonnie Luther. Although Luther 

reported no injuries at the scene of the accident, that evening she went to the emergency 

room for head and neck pain, and within weeks she began to suffer from lower back pain 

that prevented her from returning to her job as a flight attendant. Luther attributed her 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

pain to the accident and sued Lander for negligence in 2012. Lander admitted 

negligence and made an offer of judgment, which Luther did not accept. The case 

proceeded to trial in 2014, and the jury awarded Luther a total of $3,259 for past medical 

expenses, past wage and benefit loss, and past non-economic losses. 

The superior court granted attorney’s fees to Lander under Alaska Rule of 

Civil Procedure 68(b) and denied Luther’s motion for a new trial. Luther appeals, 

arguing that the superior court erred by denying her a new trial based on inadequate 

damages and by excluding evidence of the amount of payments for medical treatment 

made by Luther’s insurer. She also challenges the superior court’s decision to grant 

attorney’s fees based on billing records that were filed under seal. We conclude that it 

was error to exclude evidence of payments made for Luther’s medical treatment by her 

insurer. But because that error was harmless, we affirm the final judgment entered by 

the superior court. 

II. FACTS AND PROCEEDINGS 

A. Facts 

In November 2010 Bonnie Luther was stopped at a red traffic light, 

traveling southbound on Spenard Road in Anchorage. Stevie Lander was traveling 

westbound on Northern Lights Boulevard and attempted to make a right turn. Lander 

was unable to complete the turn on the icy road, and her SUV slid into the front driver’s 

side of Luther’s car. Photographic evidence revealed that the accident caused only minor 

damage to Luther’s car: a small dent above the front driver’s side tire. And there was 

no damage to Lander’s SUV. The airbags did not deploy in either vehicle. 

At the accident scene, Luther told a police offer that she was “fine” and did 

not require medical attention. But she went to the emergency room that evening because 

her head hurt and her neck was feeling “tight.” At the hospital she was diagnosed with 

a cervical strain, prescribed pain medication, and discharged. Luther did not complain 

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of lower back pain on the day of the accident, and no diagnosis was made regarding her 

back. Luther testified that the symptoms she experienced immediately after the accident 

— head pain and tightness in her neck and shoulder — subsided within a few weeks to 

a month. 

Luther had worked as a flight attendant for Alaska Airlines since 2007, and 

though she was not working at the time of the accident, as she was recovering from 

recent surgery, she was scheduled to return to work in December 2010. But two days 

after the accident, Luther was flying as a passenger on a flight to Hawaii when she first 

experienced pain in her back and into her left buttock. When she arrived home in Alaska 

near the end of November, Luther was diagnosed as “likely ha[ving] a muscle and 

ligament strain of her lower back . . . [and having possibly] wrenched the sacroiliac 

joint.” An x-ray showed “no evidence of fracture,” and Luther was referred to 

Orthopedic Physicians Anchorage. Sharon Sturley, a physician assistant at the practice, 

found no “acute fracture or dislocation” and noted that the x-rays showed evidence of 

“mild degenerative disc and joint disease.” 

Luther continued to experience lower back pain and to see Sturley for 

monthly visits through November 2011 with little notable change in her condition. In 

April 2011, an orthopedic specialist in the same practice as Sturley diagnosed Luther 

with a “small annular tear and a tiny disc protrusion” but noted that Luther’s “bigger 

symptoms” were due to trochanteric bursitis and irritation of her sacroiliac joint. This 

doctor did not comment on the cause of either condition and suggested a steroid 

injection, which Luther declined. Between November 2011 and July 2012 Luther 

worked for the State of Alaska in Juneau, where she continued to see an orthopedic 

specialist. She was again diagnosed as having “likely [sacroiliac] joint pain” and 

“bilateral trochanteric bursitis.” The doctor did not state that either affliction was caused 

by the car accident, and Luther again declined a recommended steroid injection in favor 

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of continued physical therapy. Throughout her treatment, Luther went to physical 

therapy and received acupuncture treatment, though her attendance at physical therapy 

was somewhat irregular. Both Sturley and the orthopedic specialist in Juneau provided 

Luther with monthly “work status reports” to be submitted to Alaska Airlines so that 

Luther could remain employed while on medical leave. 

In July 2012 Luther returned to Anchorage and continued her work for the 

State. Luther was evaluated by James Glenn, another physician assistant in the 

orthopedic practice, in December 2012. Glenn reported that he was “somewhat 

perplexed” as to why Luther was still pursuing treatment two years after the accident 

without seeking “more aggressive” measures. He suggested various treatment options 

including injections, a new MRI, and x-rays, and he noted that Luther might consider a 

disc replacement in order to return to work as a flight attendant. Glenn refused to 

provide Luther with a work status report to indicate that Luther had a “full disability” 

that prevented her from returning to work. After her appointment with Glenn, Luther 

appears to have stopped seeking medical treatment, and in December 2012 she resigned 

from her position with Alaska Airlines. 

B. Proceedings 

In October 2012 Luther filed a complaint in the superior court alleging that 

Lander was negligent and that her negligence had caused Luther to incur injuries 

resulting in ongoing medical expenses, lost wages, and pain and suffering. Lander 

admitted negligence and in December 2013 served an offer of judgment for $28,500 plus 

prejudgment interest, allowable Alaska Civil Rule 79 costs, and Alaska Civil 

Rule 82(b)(1) attorney’s fees. Luther did not accept the offer, and the case proceeded 

to trial in March 2014. 

At trial, Luther testified that the accident had left her unable to perform her 

duties as a flight attendant, but she did not call any of her own doctors or other expert 

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medical witnesses. Instead, Luther relied on her own testimony about her treatment and 

on her medical records. In support of her claim for damages for past medical expenses, 

Luther introduced evidence of the treatment she received after the accident. Some of the 

evidence she sought to introduce revealed that Luther’s insurer, GEICO, paid some of 

Luther’s medical expenses after the accident. The superior court granted Lander’s 

request that the evidence be excluded. The superior court also excluded all evidence of 

the costs of the various treatment charges paid for by GEICO. But Luther was permitted 

to introduce evidence of the treatments themselves. 

Luther testified that her total unpaid medical expenses amounted to 

$6,745.86. Lander, relying on the report and testimony of Dr. Bald, an independent 

medical examiner retained by Lander, asked the jury only to award Luther $809 for past 

medical costs, theamount Luther paid for treatmentincurred withOrthopedicPhysicians 

Anchorage in November 2011 and her acupuncturist in June 2011. Dr. Bald reported 

that Luther “did not incur anything more significant than a muscular strain-type injury” 

as a result of the car accident and that given the delay in the onset of symptoms, the 

accident could not have injured her sacroiliac joint or her lumbar spine. While Dr. Bald 

believed that the treatment Luther received during the year following the accident was 

“reasonable, appropriate, and necessary for treatment of injuries incurred in [the] 

accident,” he concluded that it was improbable that Luther’s persistent pain was 

attributable to the accident. He also found that by the time he examined Luther in 2013, 

she was “doing objectively very well” and should have been able to return to work, and 

that Luther’s pre-accident surgery and inconsistent attendance at physical therapy could 

have slowed her recovery. 

Luther also claimed lost wages and benefits of more than $50,000 for the 

time between the accident and November 2011. She testified that her base pay for the 

relevant time period would have been $28,872. But according to her W-2s, she made 

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considerably less than that in the years preceding the accident because she was subject 

to furloughs in 2009 and 2010 and was on medical leave from July 2010 through the 

time of the accident. Luther also claimed losses for various benefits she received as a 

flight attendant, including additional pay, an annual bonus, andflight benefits for herself, 

her friends, and her family. Acknowledging that it was difficult to value those additional 

benefits accurately, Luther estimated their value at a total of $15,100. Luther claimed 

$7,150.52 in payments she made for COBRA medical insurance and also requested 

damages for non-economic losses. Luther did not claim future economic losses. 

Lander argued that the maximum Luther should be awarded for lost wages 

was $9,000, the average of Luther’s annual earnings in 2008, 2009, and 2010. And 

Lander asserted that, because Luther had not worked enough hours in 2010 to qualify for 

medical insurance coverage from Alaska Airlines, she had already been paying for 

COBRA at the time of the accident. Lander argued that even if the accident had not 

occurred and Luther had returned to her job as a flight attendant in December 2010 as 

planned, she would have to have continued paying for her own insurance until she had 

worked long enough to qualify for coverage. 

At the conclusion of the trial, the jury returned a verdict awarding Luther 

$809 for past medical expenses, $1,700 for past wage and benefit loss, $750 for past 

non-economic losses, and no amount for future non-economic losses, for a total award 

of $3,259. Lander moved for attorney’s fees under Alaska Rule of Civil 

Procedure 68(b)(2)1 and filed her billing records “under seal.” This designation was 

later changed to “confidential.” 

1 Rule 68(b) provides: “If the judgment finally rendered by the court is at 

least 5 percent less favorable to the offeree than the offer . . . the offeree . . . shall pay all 

costs as allowed under the Civil Rules and shall pay reasonable actual attorney’s fees 

incurred by the offeror from the date the offer was made.” 

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Luther moved for a new trial under Alaska Rule of Civil Procedure 59(a),2 

arguing that the jury’s verdict was “manifestly unfair . . . under the evidence produced 

and the circumstances of the case.” She argued that the jury’s awards for past medical 

expenses and lost wages and benefits were insufficient, and she challenged the jury’s 

award for pain, suffering, and loss of enjoyment of life as “ridiculously small.” Luther 

also contended that the jury should have awarded her damages for future loss of 

enjoyment of life and the cost of COBRA insurance. 

Thesuperior court awardedLander $8,590.75inattorney’sfees and entered 

final judgment, offsetting Luther’s damages award and prejudgment interest such that 

Luther owed Lander a total of $6,494.17.3 

Luther appeals, arguing that the superior court erred by (1) denying her 

request for a new trial on the ground of inadequate damages, (2) excluding evidence of 

$10,000 in medical expenses paid by Luther’s insurer, GEICO, and (3) allowing Lander 

to file her billing records under seal. 

III. STANDARD OF REVIEW 

“We review the superior court’s evidentiary rulings for abuse of 

discretion.”4 “Under Alaska Civil Rule 61, errors in the admission or exclusion of 

2 Rule 59(a) provides: “A new trial may be granted to all or any of the 

parties and on all or part of the issues in an action in which there has been a trial by jury 

or in an action tried without a jury, if required in the interest of justice.” 

3 On the same day that the superior court entered final judgment, the court 

also inadvertently granted Luther’s motion for a new trial. Upon receipt of the order 

granting the new trial, Lander filed a motion for reconsideration. Recognizing that it had 

not intended to grant the motion, the superior court withdrew its order granting a new 

trial on damages and subsequently denied the motion. 

4 Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) (citing Bierria v. 

(continued...) 

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evidence are grounds for reversal only if failure to reverse ‘appears to [this] court 

inconsistent with substantial justice.’ ”5 “[W]e must disregard harmless errors that have 

no substantial effect on the rights of parties or on the outcome of the case.”6 

“A ‘refusal to grant a new trial is reviewed under an abuse of discretion 

standard’; accordingly, we review the record ‘in the light most favorable to the nonmoving party.’ ”7 “An abuse of discretion exists when evidence to support the verdict 

was completely lacking or was so slight and unconvincing as to make the verdict plainly 

unreasonable and unjust.”8 “We disturb the trial court’s exercise of discretion only ‘in 

the most exceptional circumstances to prevent a miscarriage of justice’ ”9

 and will not 

disturb a verdict “unless the evidence . . . is so clearly to the contrary that reasonable 

persons could not differ in their judgment.”10 

4

(...continued) 

Dickinson Mfg. Co., 36 P.3d 654, 657 (Alaska 2001)). 

5 Loncar v. Gray, 28 P.3d 928, 930 (Alaska 2001) (alteration in original). 

6 Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012) (first citing Alaska 

R. Civ. P. 61; then citing Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146 

(Alaska 1999)). 

7 Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) (quoting Bierria, 36 P.3d 

at 656). 

8 Id. (quoting Bierria, 36 P.3d at 656). 

9 Id. (quoting Bierria, 36 P.3d at 656). 

10 Pralle v. Milwicz, 324 P.3d 286, 290 (Alaska 2014) (omission in original) 

(quoting Alaska Democratic Party v. Rice, 934 P.2d 1313, 1320 n.10 (Alaska 1997)). 

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“We review the decision to award attorney’s fees for abuse of discretion 

and [will] overturn it only where the award is manifestly unreasonable.”11 “However, 

‘[t]he independent standard of review . . . applies to considering whether the trial court 

properly applied the law when awarding attorney’s fees.’ ”12 

IV.	 DISCUSSION 

A.	 The Superior Court’s Exclusion Of Evidence Of Luther’s Treatment 

Expenses Was Error, But The Error Was Harmless. 

1.	 Evidence of the full cost of Luther’s medical treatment is 

relevant to a determination of the severity of her injuries. 

Luther argues that the superior court erred by excluding evidence of the 

cost of her medical treatment paid by GEICO, Luther’s insurer. Lander sought to 

exclude the evidence of Luther’s medical bills on the ground that our decision in Ruggles 

v. Grow would prevent Luther from recovering any portion of the medical expenses paid 

by GEICO.13 Luther countered that excluding the amount of the expenses would mislead 

the jury into believing that Luther’s injuries were less serious because she had incurred 

few medical expenses. To address that problem, Luther requested a jury instruction that 

would inform jurors that her actual medical expenses exceeded those claimed at trial by 

$10,000, the amount of medical expenses paid by her own insurer. 

The superior court ruled on the issue from the bench at the beginning of the 

trial, granting Lander’s request to exclude the evidence. The superior court not only 

11 Alaska Fur Gallery, Inc. v. First Nat’l Bank Alaska, 345 P.3d 76, 84 

(Alaska 2015) (alteration in original) (quoting Williams v. GEICO Cas. Co., 301 P.3d 

1220, 1225 (Alaska 2013)). 

12 Bakerv.Ryan Air, 345 P.3d 101, 106 (Alaska2015)(alterations in original) 

(quoting DeNardo v. Cutler, 167 P.3d 674, 677 (Alaska 2007)). 

13 See Ruggles ex rel. Estate of Mayer v. Grow, 984 P.2d 509, 512 (Alaska 

1999). 

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prohibited evidence of the source of the payments, but also prevented any evidence of 

the amounts charged for Luther’s various treatments. For instance, one of Luther’s 

exhibits was a chronological treatment history prepared by her orthopedic specialist, and 

the superior court’s ruling required redaction of any treatment payments shown in that 

exhibit that were covered by GEICO. Luther argued for “either an exhibit or an 

instruction demonstrating what the costs were for each treatment” and suggested that 

Luther’s inability to recover those expenses could be explained in a jury instruction. But 

the trial court confirmed that “payments by GEICO, costs, the amount of money paid by 

GEICO, billings paid by GEICO, mention of insurance, all that is disallowed.” 

The superior court did not elaborate on the basis for excluding even the 

amounts of the treatment costs, noting only that “based upon the previous rulings [the 

court had] already made, [the amount of the GEICO payments] should be taken out.” 

Presumably, the superior court was mindful of the rule we set out in Ruggles v. Grow, 

where we held that once an insurer requests that a plaintiff “not . . . present its claim for 

medical expenses,” the plaintiff “los[es] the right to present the claim” because “the 

subrogated claim belongs to the insurer.”14 Insurers may therefore seek reimbursement 

in one of two ways: The insurer can allow a plaintiff to pursue the subrogated claim 

along with the plaintiff’s own claim and then seek reimbursement from the plaintiff, or 

the insurer can request that the plaintiff omit the subrogated claim, allowing the insurer 

to seek reimbursement in separate litigation.15 

In this case, there is no question that GEICO requested that Luther refrain 

from including the insurer’s medical-payment claim in her lawsuit and that under 

Ruggles, Luther therefore could not recover any portion of the $10,000 paid by GEICO. 

14 Id. 

15 Id. 

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But while Luther recognizes that she could not have recovered any of the $10,000, she 

contends that exclusion of the evidence of the cost of her treatment was prejudicial 

because it “appeared [to the jury] that [Luther] only incurred medical exp[e]nses in the 

amount of $809,” the amount she paid out of pocket. Lander argues that evidence of the 

cost of Luther’s treatment paid by GEICO was “irrelevant, misleading, and unfairly 

prejudicial.” But Luther maintains that the cost incurred for treatment was relevant to 

the jury’s determination of the severity of Luther’s injuries and that without that 

information, the jury could have assumed that “the injuries must have been minor.” 

The definition of relevant evidence under Alaska Rule of Evidence 401 is 

broad.16 For evidence to be considered relevant, it “need not be direct or conclusive; it 

need only have some tendency to advance the proposition for which it is offered.”17 The 

amount expended on medical treatment after an accident may bear on the severity of the 

plaintiff’s injuries. Just as photographic evidence and testimony about thelack ofserious 

damage to Luther’s and Lander’s vehicles was relevant as potentially reflecting the 

severity of the accident, so too is the amount of medical payments. It is then for the jury 

to determine the weight to be given that evidence. 

Courts in other jurisdictions have addressed this issue and concluded that 

evidence of medical expenses is admissible when it is relevant to the severity of an 

injury. For example, the Georgia Supreme Court has held that “the amount of medical 

bills may be admissible on a claim of pain and suffering to show the seriousness of the 

16 Marsingillv. O’Malley, 128 P.3d 151, 158 (Alaska2006) (citing Van Meter 

v. State, 743 P.2d 385, 392 (Alaska App. 1987)). 

17 Id. (quoting McLaughlin v. State, 818 P.2d 683, 687 (Alaska App. 1991)). 

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injury.”18 This is true even in cases in which “th[e] expenses should not have been 

awarded as damages.”19 Similarly, the Virginia Supreme Court concluded that “the trial 

court erred in excluding [a plaintiff’s] medical bills” when the plaintiff “argued that the 

medical bills were offered solely to show that he was treated for physical injuries which, 

he contends, support[] his allegation that he endured pain and suffering.”20 That court 

recognized that the plaintiff “does not seek recovery for the amount of the medical bills; 

rather, he seeks recovery for the pain and suffering.”21 And the Montana Supreme Court 

reversed the trial court’s exclusion of the amount charged for medical treatment, holding 

that “medical bills received by a tort victim can be relevant evidence of issues such as 

the nature and severity of the injuries.”22 A number of federal courts have also permitted 

evidence of the amount of medical expenses when introduced for the purpose of 

demonstrating the severity of an injury.23 

18 Warren v. Ballard, 467 S.E.2d 891, 893 (Ga. 1996) (citing Melaver v. 

Garis, 138 S.E.2d 435, 436 (Ga. App. 1964)) (holding that a doctor’s bill was admissible 

as illustrative of pain and suffering). 

19 College Park Cabs, Inc. v. Justus, 488 S.E.2d 88, 89 (Ga. App. 1997). 

20 Parker v. Elco Elevator Corp., 462 S.E.2d 98, 100 (Va. 1995). 

21 Id. 

22 Meek v. Mont. Eighth Jud. Dist. Ct., 349 P.3d 493, 495 (Mont. 2015) (citing 

Chapman v. Mazda Motor of Am., 7 F. Supp. 2d 1123, 1125 (D. Mont. 1998)). 

23 See, e.g., Hannah v. Haskins, 612 F.2d 373, 375 (8th Cir. 1980) (noting that 

while “[p]ayments received from collateral sources are not generally allowed to be 

introduced into evidence for purposes of reducing a damage award or showing 

wrongdoing[,] . . . [e]vidence relating to such payments . . . has been held to be 

admissible for the purpose of establishing the extent of injury”) (internal citations 

omitted); Brice v. Nat’l R.R. Passenger Corp., 644 F. Supp. 220, 224 (D. Md. 1987) 

(holding that the amount of medical expenses incurred by a plaintiff in a workplace 

(continued...) 

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We have not directly considered the question whether the amount of 

medical payments is admissible for the purpose of demonstrating the severity of an 

injury. But we pointed out in Ruggles v. Grow that although the superior court ruled that 

the plaintiff’s medical expenses must be deducted from her recovery, it nevertheless 

allowed evidence of the treatment expenses.24 Though the admissibility of that evidence 

was not at issue on appeal, we recognized that the payments had been admitted “as 

evidence bearing on the severity of [the plaintiff’s] injury.”25 

In Ruggles we went on to hold that a plaintiff may not bring a claim that the 

insurer sought to control.26 But to exclude all evidence of medical costs when an insurer 

has made payments and subsequently requests to control the claim would create an 

unintended dichotomy. Plaintiffs involved in litigation in which their insurers do not 

make such a request would be able to introduce evidence of all medical expenses 

included in their claims: “If the insurer does not object, the insured may include the 

subrogated claim in its claim . . . .”27 But in cases in which an insurer “actively requests 

that the plaintiff not pursueher subrogation claim,”28 a plaintiff would be prohibited from 

23(...continued)
 

accident was relevant to “the determination of the full extent and nature” of the plaintiff’s
 

injuries). 

24 Ruggles ex rel. Estate of Mayer v. Grow, 984 P.2d 509, 511 (Alaska 1999). 

25 Id. 

26 Id. at 512. 

27 Id. 

28 O’Donnell v. Johnson, 209 P.3d 128, 135 (Alaska 2009) (holding that the 

common fund doctrine, which allows a litigant or lawyer who recovers a common fund 

to seek reasonable attorney’s fees from the entire fund, does not apply when an insurer 

(continued...) 

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presenting evidence of the expense of medical treatment. Ruggles should not be 

interpreted to produce such an anomalous result. 

Because evidence of the amount of medical bills is relevant to the severity 

of a plaintiff’s injury, we conclude that such evidence cannot be excluded solely on the 

ground that the plaintiff cannot recover the money. Thus, our decision in Ruggles does 

not preclude the introduction of evidence of the amounts of insurance payments for the 

purpose of demonstrating the severity of an injury. 

2.	 The probative value of the evidence of Luther’s treatment costs 

is not outweighed by any danger of prejudice. 

Given that Luther’s evidence of the amounts charged for medical treatment 

was relevant, the next step in the analysis is whether the evidence of the amount of the 

payments should have been “excluded [because] its probative value [was] outweighed 

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, waste of time, or needless presentation of cumulative 

evidence.”29 Lander argues that to the extent that evidence of the cost of Luther’s 

treatments may have had “minimal probative value,” that value was “far outweighed” by 

its prejudicial effect and tendency to confuse and mislead the jury. But Lander does not 

explain why admission of the evidence would have been prejudicial to her. Lander was 

free to argue at trial that the treatments Luther received were unnecessary or were not 

attributable to the accident; indeed, she did precisely that. 

28(...continued) 

actively requests that a plaintiff refrain from pursuing a subrogated claim). 

29 Alaska R. Evid. 403. We have observed that “this balancing test measures 

the probative value of the evidence against its deleterious effects. Where the prejudicial 

effect is ‘demonstrably greater,’ the evidence must be excluded.” Conley v. Alaska 

Commc’ns Sys. Holdings, Inc., 323 P.3d 1131, 1143 n.3 (Alaska 2014) (emphasis added) 

(quoting Commentary Alaska E.R. 403). 

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In support of her argument that the evidence could have misled and 

confused the jury, Lander relies on our decision in Loncar v. Gray. 

30 The plaintiff in that 

personal injury case sought to introduce evidence of her own Medicare and Medicaid 

payments in part because she claimed the evidence was relevant to her damages because 

she suffered humiliation fromaccepting public assistance.31 The superior court excluded 

the evidence of her coverage, noting that while the plaintiff could not introduce evidence 

of Medicaid payments, she could “testify about her medical condition, . . . her medical 

bills[,] . . . her difficulty in obtaining medical care, . . . her bills and the amount that has 

been run up without mentioning insurance.”32 We affirmed, reasoning that evidence of 

Medicaid payments would have “opened [the door] to evidence from both sides on the 

larger issue of insurance payments — and this potentially very large body of evidence 

would ‘create more confusion of the issues than . . . any probative value it may have.’ ”33 

But here, unlike the plaintiff in Loncar, Luther was prohibited from entering into 

evidence even the amounts charged for her medical treatment. Lander’s concerns about 

confusing the jury could easily have been alleviated by permitting evidence regarding 

the amounts of the medical bills while excluding their payment source. 

The superior court could have taken several approaches to ensure that the 

jury did not erroneously award Luther any portion of the subrogated claim. First, the 

superior court could have instructed the jury not to award damages for the medical 

expenses that had already been paid by Luther’s insurer. This was the remedy that 

Luther suggested to the superior court. 

30 28 P.3d 928 (Alaska 2001). 

31 Id. at 933. 

32 Id. (alteration omitted) (emphases added). 

33 Id. (omission in original). 

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Second, the superior court could have instructed jurors not to award 

damages for treatment undertaken after a particular date, which would necessarily 

preclude an award for expenses covered by the insured party’s medical-payment 

coverage. 

Third, the superior court could have allowed the jury to determine the total 

medical expenses attributable to the accident and then reduced that award to prevent 

recovery for payments made by GEICO. We have concluded that this approach is 

appropriate in the context of a damages cap. In Kodiak Island Borough v. Roe, we 

determined that the superior court improperly instructed the jury on a statutory noneconomic damages cap in an intentional tort case: While “[t]he legislature may limit the 

amount of damages that can be awarded, . . . it is for the jury to determine the extent of 

the plaintiff’s injury and the damage award that will make [him or] her whole.”34 

Any of these approaches would allow a plaintiff to introduce evidence of 

the full cost of medical treatment without allowing the plaintiff to recover any costs 

precluded by Ruggles, leaving the insurer free to pursue its separate litigation. 

3.	 The superior court’s exclusion of evidence of the full cost of 

treatment was harmless error. 

Having concluded that the superior court erred by excluding the evidence 

of the cost of Luther’s medical treatment covered by GEICO, we must next consider 

whether that error warrants a new trial. Unless we can determine that the exclusion of 

the evidence had a “substantial effect” on the outcome of the trial,35 we must conclude 

that the error was harmless. While Luther was improperly precluded from presenting 

34 63 P.3d 1009, 1016-17 (Alaska 2003). 

35 Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012) (first citing Alaska 

R. Civ. P. 61; then citing Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146 

(Alaska 1999)). 

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evidence of all of her medical treatment expenses because some were paid by GEICO, 

Luther was free to admit her medical records and to testify about the type of medical 

treatment she received from the date of the accident through trial. It was Luther who 

elected not to present a single medical expert to support her claim that the accident 

caused her persistent lower back pain. And the medical records reflected that even 

Luther’s own orthopedic specialist found her continued need for treatment 

“perplex[ing].” Lander, on the other hand, presented the testimony of Dr. Bald, who 

undermined any causal connection between the accident and Luther’s continuing pain, 

along with evidence indicating that Luther failed to mitigate her damages. 

In light of the evidence presented and the trial strategies employed in this 

case, we cannot conclude that admission of the amount of the GEICO payments would 

have had a substantial effect on the outcome of the trial. We therefore conclude that the 

error was harmless. 

B.	 The Superior Court Did Not Err By Denying Luther’s Motion For A 

New Trial. 

Luther also argues that the superior court should have granted her motion 

for a new trial because the jury did not award adequate damages and “[t]he result reached 

by the jury was manifestly unfair.” But because there was sufficient evidence to support 

the jury’s verdict, we affirm the trial court’s ruling. 

Luther has failed to establish that the circumstances in this case constitute 

the type of “exceptional circumstances” in which we will reverse a trial court’s denial of 

a new trial “to prevent a miscarriage of justice.”36 We have held that “[i]nadequacy of 

a jury verdict is grounds for a new trial in cases where negligence is conceded or proved, 

Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003) (quoting Bierria v. 

Dickinson Mfg. Co., 36 P.3d 654, 656 (Alaska 2001)). 

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but no damages are awarded.”37 But in cases “where the jury makes some award . . . 

where negligence is conceded or proved, we have not reversed that award as 

inadequate.”38 Here, the jury did award damages. Because “reasonable minds [can] 

differ on the causal relationship between [an] accident and [a plaintiff’s] injuries . . . [t]he 

resolution of [the] issue [of damages] turns upon the credibility of the witnesses.”39 

Here, the jury may not have been persuaded that the accident cost Luther as much as she 

claimed in medical expenses, lost pay, and pain and suffering. 

Luther relies on several decisions in which we reversed a superior court’s 

denial of a new trial because of inadequate damage awards, but those cases are 

unpersuasive here. For example, in Pugliese v. Perdue, we reversed an award of no 

damages where evidence that the accident had caused the injury was indisputable.40 And 

in Fancyboy v. Alaska Village Electric Cooperative, Inc., the jury awarded damages for 

property loss and medical expenses arising out of a fire that was determined to be 

partially caused by the defendant, but it gave no award for non-economic damages 

despite the fact that the plaintiffs suffered “painful burns and . . . loss of consortium.”41 

But here, the jury made awards for both past medical expenses and non-economic 

damages. And the cases cited by Luther in which we upheld a superior court judge’s 

37 Glamann v. Kirk, 29 P.3d 255, 263 (Alaska 2001) (emphasis added). 

38 Id. (emphasis added); seealso Hutchins v. Schwartz, 724 P.2d1194(Alaska 

1986) (affirming a jury award of $250 for lost earnings rather than the $18,500 the 

plaintiff claimed; $0 instead of $75,000 for lost enjoyment of life and physical 

impairment; and $937 for past medical expenses instead of the claimed $20,794). 

39 Hutchins, 724 P.2d at 1203. 

40 988 P.2d 577, 583 (Alaska 1999). 

41 984 P.2d 1128, 1136 (Alaska 1999). 

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discretionary decision to grant a new trial on the ground of an inadequate award of 

damages42 support the proposition that there must be “exceptional circumstances . . . 

which would require us to overrule the superior court’s discretionary grant of a new 

trial.”43 Such circumstances do not exist in this case because a review of the record 

reveals that there was sufficient evidence presented to support the jury’s award. 

First, Luther challenges the jury’s decision to award her only $809 for past 

medical expenses,arguingthatsheshould havebeen awarded $1,578.86, the“undisputed 

total of past medicals due for that year.” But the jury was free to make its own 

assessment of the amount of medical expenses that were attributable to the accident. As 

Lander points out, Dr. Bald qualified his statement that one year was a reasonable 

treatment period by observing that he was “[g]iving Ms. Luther quite a bit of benefit of 

the doubt.” And the jury could have relied on Dr. Bald’s testimony that he “[could not] 

attribute [Luther’s] complaints of intermittent pain in her buttock to [the] accident.” The 

jury could also have determined that Luther failed to mitigate her damages: Dr. Bald 

testified that Luther’s failure to attend all physicaltherapysessionscould have prolonged 

her pain, and Luther conceded that she twice refused steroid injections recommended by 

her doctors. Finally, we have recognized that where the damage to the vehicle is minor, 

that evidence “can be probative of the force with which the accident occurred[] and the 

likelihood that it caused serious harm to” a party.44 So the jury could have considered 

that evidence in reaching the conclusion that Luther’s harmfromthe accident was minor. 

42 See Buoy v. ERA Helicopters, Inc., 771 P.2d 439 (Alaska 1989); Sebring 

v. Colver, 649 P.2d 932 (Alaska 1982). 

43 Buoy, 771 P.2d at 442. 

44 Marron v. Stromstad, 123 P.3d 992, 1009 (Alaska 2005). 

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Second, the jury awarded Luther $1,700 in lost wages and benefits despite 

her claimed loss of $51,122.52. Given the variable nature of Luther’s compensation as 

a flight attendant, a broad range of awards could have been supported by the evidence. 

We need only determine whether there was sufficient evidence to support the jury’s 

award, and we conclude that there was. In light of the testimony and evidence presented 

at trial, it is plausible that the jury’s award reflected its belief that the accident did not 

actually prevent Luther from returning to work for the full year. Dr. Bald testified that 

Luther could return to work “[i]f she so desired,” and Glenn refused to sign her “total 

disability” work status reports. And again, the jury may have considered evidence 

presented by Lander of Luther’s failure to mitigate and the possibility raised by Lander 

at trial that even if Luther had returned to work in December 2010, she could have been 

placed on additional furloughs. Similarly, the jury’s decision not to compensate Luther 

for her COBRA payments was supported by evidence that her variable work schedule 

may not have entitled her to employer-provided health insurance. Thus, there was 

sufficient evidence to support the jury’s award of $1,700. 

Finally, Luther claims that the amount awarded for her pain and suffering 

resulting from the accident was inadequate. But given the subjective nature of a jury’s 

award of non-economic damages, we cannot conclude that the award was unsupported 

by the evidence. While Luther testified that her injuries have caused interrupted sleep 

and pain when sitting for long periods of time, Dr. Bald testified that “her examination 

was completely and totally normal,” and Glenn was “perplexed” by the fact that she was 

still requesting disability status two years after the accident. 

Because there was evidence to support the jury’s award of damages and our 

precedent does not warrant a reversal of the superior court’s denial of Luther’s motion 

for a new trial, we affirm that denial. 

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C.	 The Superior Court Did Not Err In Its Order Granting Attorney’s 

Fees Because Luther Had Access To All Of Lander’s Billing Records. 

Finally, Luther argues that the superior court erred in granting Lander 

attorney’s fees under Rule 68 because Lander filed the documents supporting her request 

for fees under seal. But while the billing records were filed “under seal,” the court 

promptly redesignated them as “confidential” in April 2014, providing the parties with 

access to the documents.45 And in any event, Lander provided all of the billing records 

in support of her motion directly to Luther. Thus, Luther does not claim that she was 

denied access to the supporting billing documentation, and as Lander points out, 

“Luther’s ability to contest or respond to the [motion] was in no way burdened” by the 

fact that the documentation was filed under seal and designated as confidential by the 

court. 

Luther makes a persuasive policy argument against the ability of a 

prevailing party to designate as confidential billing records in support of a motion for 

attorney’s fees: She argues that this practice could place an undue burden on parties 

opposing those fees by preventing them from mentioning the confidential information 

in their opposition to the motion. But here, Luther did not oppose the reasonableness of 

the hourly rates or the amount of time expended, and she expressly allowed that the 

award of attorney’s fees was “within the discretion of [the superior court].” Thus, 

Luther’s argument is hypothetical, and we do not need to consider it here. 

Luther also argues that “as a general principle, court proceedings are open” 

and that there is no reason documents supporting a motion for attorney’s fees should be 

45 Under Alaska Administrative Rule 37.5(c), “ ‘[c]onfidential’ means access 

to the record is restricted to: the parties to the case; counsel of record; individuals with 

a written order fromthecourt authorizing access; and court personnel for case processing 

purposes only,” while “ ‘[s]ealed’ means access to the record is restricted to the judge 

and persons authorized by written order of the court.” 

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treated differently. She maintains that the information should be public as a matter of 

policy because knowledge of the prevailing hourly rate for attorneys may be useful in 

future cases. This may be true, but Luther does not suggest that the trial court has 

considered or denied any request for access to these documents. And the trial court 

“may, by order, limit access to public information in an individual case record by sealing 

or making confidential the case file [or] individual documents in the case file.”46 Absent 

any indication that Luther or any other party has requested or been denied access to these 

documents, we cannot conclude that the superior court abused its discretion. 

V. CONCLUSION 

For the reasons discussed above, we AFFIRM the final judgment of the 

superior court. 

Alaska Admin. R. 37.6(a). 

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46