986 P.2d 865 (Alaska 1999), S-8608, Peter v. Progressive Corp.

Docket Nº:S-8608.
Citation:986 P.2d 865
Opinion Judge:FABE, Justice.
Party Name:Samuel PETER, Sr., individually and as father and next friend of Samuel Peter, Jr., Petitioners, v. The PROGRESSIVE CORPORATION and Progressive Northwestern Insurance Company, Respondents.
Attorney:David Karl Gross, Law Offices of Murphy L. Clark, Anchorage, for Petitioners. Gary A. Zipkin and Susan M. West, Guess & Rudd, P.C., Anchorage, for Respondents.
Judge Panel:Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices. CARPENETI, Justice, dissenting.
Case Date:August 27, 1999
Court:Supreme Court of Alaska

Page 865

986 P.2d 865 (Alaska 1999)

Samuel PETER, Sr., individually and as father and next friend of Samuel Peter, Jr., Petitioners,


The PROGRESSIVE CORPORATION and Progressive Northwestern Insurance Company, Respondents.

No. S-8608.

Supreme Court of Alaska

August 27, 1999.

Page 866

David Karl Gross, Law Offices of Murphy L. Clark, Anchorage, for Petitioners.

Gary A. Zipkin and Susan M. West, Guess & Rudd, P.C., Anchorage, for Respondents.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.


FABE, Justice.


After receiving a total of twelve interrogatories from the plaintiffs in a lawsuit alleging bad faith in the delay of underinsured motorist payments, the defendant insurer asked the superior court to appoint a discovery master to handle all future discovery disputes. The court granted the request and ordered that the master's fees be paid by the losing party in each discovery dispute. The plaintiffs appeal, claiming that use of discovery masters is unfair to financially disadvantaged parties. We vacate the superior court's order and remand for determination of whether a master is appropriate in this case in light of various factors that we outline below.


In March 1995 an automobile driven by Cynthia Pack struck eight-year-old Samuel Peter, Jr. while he was crossing the street.

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In June 1996 Samuel Jr. and his parents, Donita and Samuel Sr., sued Pack for Samuel Jr.'s injuries. Pack, in turn, filed a counterclaim against Donita, alleging that she negligently failed to supervise her son.

The Peters have an automobile insurance policy with Progressive Northwestern Insurance Company. In December 1997 Samuel Sr., on his own behalf and on behalf of Samuel Jr., sued Progressive, Progressive's agent Dan Woodruff, and Last Frontier Insurance, their insurance broker, alleging that Progressive committed bad faith and breach of fiduciary duty by denying knowledge that Donita was insured in the hopes that the Peters would not make a claim. Progressive denied all allegations.

One day after filing their complaint, the Peters served Progressive and its agents with three discovery requests consisting of a total of twelve interrogatories. One month later, in February 1998, Progressive moved for a protective order precluding the Peters from disclosing "any confidential or proprietary information produced by Progressive" to third parties. The Peters filed a forty-one-page opposition with over one hundred pages of exhibits. The next day, Progressive moved for appointment of a discovery master to resolve disputes. Progressive requested that the losing party pay the master's fees within ten days of the resolution of each individual discovery dispute. The Peters opposed the motion, arguing that appointment of a master would give Progressive a strategic advantage and would deprive the Peters of meaningful access to the justice system.

In April 1998 Superior Court Judge Harold M. Brown issued an order granting Progressive's motion and asked the parties to submit the name of a mutually acceptable discovery master. We granted the Peters' petition for review from this order.


We review the appointment of special masters pursuant to Alaska Civil Rule 53 for an abuse of discretion.1 "We will find an abuse of discretion only when we are left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling."2 Although we also review discovery orders and sanctions for an abuse of discretion,3 we review de novo the question of whether a trial court weighed the appropriate factors when issuing a discovery order.4

When interpreting the Civil Rules we exercise our independent judgment,5 adopting the rule of law that is most persuasive in light of reason, precedent, and policy.6 Similarly, we review constitutional questions de novo.7


The Peters' central argument in this appeal is that imposition of masters' fees unfairly infringes on nonwealthy litigants' access to civil justice. As the Peters point out, the text of Civil Rule 53 provides no guidance on when appointment of a discovery master is appropriate. To address the Peters' argument, then, we must determine the scope of trial courts' authority under Civil Rule 53 to appoint discovery masters and must consider whether the constitutional right of meaningful access to the court system8 requires certain limitations on that authority.

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Not only will our inquiry allow us to articulate basic principles to guide judges, attorneys, and litigants in the appropriate use of discovery masters, but it will also assist our Standing Advisory Committee on the Rules of Civil Procedure to address the use of discovery masters and propose changes to Civil Rule 53. In any case, our judicial duty to determine whether appointment of a master was appropriate in this case, and by implication whether certain limitations on the trial court's discretion in appointing a master may be justified, exists independent of the activities of the Civil Rules Committee.9

A. Overview of Authority to Appoint Discovery Masters

1. Alaska law

Alaska Civil Rule 53(a) governs the use of special masters in civil trials. It provides in part:

(a) Appointment and Compensation. The presiding judge of the superior court for each judicial district ... may appoint one or more standing masters for such district.... [T]he word "master" includes a referee, an auditor and an examiner, and a magistrate or a deputy magistrate. The compensation, if any, to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action which is in the custody and control of the court, as the court may direct....

(b) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts.... Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to ... take all measures necessary or proper for the efficient performance of the master's duties under the order.

Although we have not previously set forth guidelines for the use and appointment of special masters to supervise the discovery process, we have addressed generally the use of referees in lieu of judges for various purposes in civil trials. In Dean v. Firor,10 the seminal Alaska case regarding the use of masters, we noted that the language in Federal Civil Rule 53(b), including the requirement that an "exceptional condition" justify the use of a master,11 was "purposefully omitted from Alaska Civil Rule 53."12 We acknowledged that the drafters of the Alaska rule may have "intended to allow the trial judges a more liberal use of masters than that allowed under the federal system" and that therefore "application of the extensive federal case law on this subject [is] inappropriate."13

Nevertheless, we decided that "[w]hile some jurisdictions may give trial judges a great deal of liberty in referring cases, we find a more restrictive view to be more appropriate."14 We reasoned that the judiciary should be solely responsible for resolving questions of law, such as the claim for fraudulent conveyance at issue in Dean, and that a trial court should not reduce itself to the role of a "quasi-appellate court by simply reviewing the findings of the master."15

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We declined to address the propriety of appointing a discovery master in a more recent case involving the same attorney appearing for the plaintiffs in the present case, Gonzales v. Safeway Stores, Inc.16 In Gonzales, the trial court had appointed a master due to "ongoing discovery disputes."17 After the master had made several rulings, the plaintiff moved to discharge the master on the grounds that the fees "infringe[d] upon his access to the court and violate[d] his due process and equal protection rights."18 But because the plaintiff did not object at the time of appointment, we concluded that he had waived the issue.19 We also noted that trial courts generally have authority under Civil Rule 53 to appoint masters and fix their compensation.20

This case law, albeit limited, provides Alaska state courts with authority under Civil Rule 53 to use discovery masters in at least some circumstances. The harder task, and one that this case requires us to perform, is to define those circumstances in order to determine whether appointment of a discovery master was appropriate in this case.

2. Sources other than Alaska law

Some jurisdictions set forth criteria for determining the propriety of referring a discovery dispute to a master. For example, California's rule gives courts discretion to appoint a master over one party's objection only when "it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes."21 California courts have interpreted this rule "to permit reference over the parties' objection where that procedure is necessary, not merely convenient. "22 A recently proposed Michigan rule would allow courts to appoint discovery masters only if "there are complex or numerous discovery issues and a master's assistance would facilitate a more speedy and economical determination of those issues."23

Federal Rule of Civil Procedure 53 similarly requires that an "exceptional condition" exist before a master can be appointed.24 Although this restriction does not exist in Alaska Civil Rule 53, we believe a discussion of the use of...

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