Pluid v. B.K., Nos. S-7506

• Court: Supreme Court of Alaska (US)
• Writing for the Court: Before COMPTON; PER CURIAM
• Citation: 948 P.2d 981
• Parties: Frank PLUID, Appellant/Cross-Appellee, v. B.K., Appellee/Cross-Appellant.
• Decision Date: 28 November 1997
• Docket Number: Nos. S-7506,S-7525

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948 P.2d 981 Frank PLUID, Appellant/Cross-Appellee,
v.
B.K., Appellee/Cross-Appellant. Nos. S-7506, S-7525. Supreme Court of Alaska. Nov. 28, 1997.

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D. Scott Dattan, Law Offices of D. Scott Dattan, Anchorage, for Appellant/Cross-Appellee.

Steven D. Smith, Law Offices of Steven D. Smith, P.C., Anchorage, for Appellee/Cross-Appellant.

Before COMPTON, C.J., and MATTHEWS, EASTAUGH, FABE and BRYNER, JJ.

OPINION

PER CURIAM.

I. INTRODUCTION

Frank Pluid was found liable, after a bench trial, for committing acts of sexual battery against B.K., the child of a woman with whom Pluid lived. The judge, sitting as the finder of fact, awarded both compensatory and punitive damages. Pluid appeals on the ground that B.K. failed to present sufficient evidence to justify the trial court's award of damages for B.K.'s future medical expenses. He also argues that the award of punitive damages was excessive. B.K. cross-appeals the trial court's refusal to award damages for her past medical expenses. For the reasons that follow, we are unpersuaded by Pluid's appeal, we do not address B.K.'s cross-appeal, and we affirm.

II. FACTS AND PROCEEDINGS

During January and February of 1989, B.K. was living with her mother and two brothers in Pluid's home. ¹ B.K.'s mother

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and Pluid had been residing with each other for approximately five years. B.K., her mother, and her brothers moved out of Pluid's house in the latter part of February 1989.

At trial, B.K. testified that Pluid committed a sexual assault upon her when she was twelve years old. The assault consisted of Pluid taking B.K. into his bedroom and asking her if she wanted to "snuggle." He rubbed her chest and genitals and attempted to penetrate her. He was unsuccessful at penetration and masturbated on her instead. After the assault, he took steps to prevent its discovery, including instructing B.K. not to tell anyone what he had done to her. She testified that other assaults followed this first one. She was assaulted more than once and at least "a couple of times." Prior to trial, she informed the police that she had been assaulted four times.

Pluid's work was of such a nature that he was away from home for two-week periods of time, then home for one. At some point after the assaults, while Pluid was away, B.K. undertook to tell her brother what Pluid had done to her. After she started to tell him, but before she could finish, her mother overheard the conversation and intervened. B.K. told her mother the whole story. B.K.'s family moved out of Pluid's home shortly thereafter.

Pluid testified that he did not do these things. He claimed that B.K.'s allegations were the product of her mother's having instilled a false memory in her mind. Pluid posited that it was actually B.K.'s biological father who sexually assaulted her. He claimed that the true reason that B.K. and the rest of her family moved out of his house was that he had ordered them to leave. He contended that the allegations of sexual assault were retribution by B.K.'s mother for kicking out her and the family.

The trial court found B.K. credible and did not believe Pluid's denials or his vendetta hypothesis. Thus, the court found the evidence "clear and convincing" that Pluid had committed "acts of sexual battery" against B.K. Treating all of the acts of sexual battery as a single tortious event for purposes of calculating damages, the court concluded that the evidence showed that B.K. would need approximately one and a half years of counseling and "an average of a visit per year thereafter." The court determined that this would amount to 100 sessions with a counselor at a cost of $120 per session. Therefore, it awarded B.K. $12,000 for these future medical expenses. The court also awarded B.K. $25,000 for past and future pain and suffering.

Finally, the court found by clear and convincing evidence that Pluid acted outrageously. For this outrageous conduct, the court awarded punitive damages in the amount of five times the compensatory damages--$185,000. The court noted that the amount exceeded the criminal fine for a single offense of sexual abuse of a minor but found this to be a reasonably proportionate penalty in light of the evidence that the conduct occurred more than once and not more than four times. Pluid moved for reconsideration of these awards and the motion was denied.

The court declined to award B.K. compensation for her past medical expenses stemming from the attacks on the ground that the evidence supporting these expenses was too vague. B.K. moved for reconsideration of this ruling and that motion was also denied. This appeal and cross-appeal followed.

III. STANDARD OF REVIEW

The determination by a trial court sitting as a finder of fact as to the proper amount to be awarded as compensatory damages is not to be disturbed on appeal unless it is clearly erroneous. Morrison v. State, 516 P.2d 402, 405 (Alaska 1973). So long as the trial judge "follows the correct rules of law, and his estimation appears reasonable and is grounded upon the evidence, his finding will remain undisturbed." Id.

We will overturn an award of punitive damages entered by a court sitting as the trier of fact only if it is manifestly unreasonable, the result of passion or prejudice, or entered in disregard of rules of law. See Alaska Statebank v. Fairco, 674 P.2d 288, 296 (Alaska 1983).

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We review questions of law using our independent judgment. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988). Under this standard, we have the duty "to adopt the rule of law that is most persuasive in light of precedent, reason and policy." Id. (quoting Brooks v. Brooks, 733 P.2d 1044, 1055 (Alaska 1987)).

IV. ANALYSIS AND DISCUSSION

A. Did the Trial Court Err in Awarding B.K. $12,000 for Future Medical Expenses?

Pluid argues that the trial court erred in its determination of the amount to be awarded for B.K.'s future medical expenses. The trial court found that B.K.'s expenses would amount to $12,000, based on its conclusion that she would require weekly counseling sessions for a year and a half and yearly sessions thereafter for a total of 100 sessions of therapy. The court estimated that each session would cost $120.

Pluid contends that B.K. failed to show by a preponderance of the evidence that she would require this amount of therapy. This may be true. ² However, Pluid has misconceived the quantum of evidence necessary to support an award of damages. It is, of course, the law that the fact of damages must be proven by a preponderance of the evidence. "To recover for future medical expenses one must prove to a reasonable probability that they will occur." Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994) (citing Maddocks v. Bennett, 456 P.2d 453, 458 (Alaska...