text:
    2002 WY 119
    Clark Tyler KNOWLES, as Personal Representative for the Estate of Lynn Rae Knowles, deceased, Appellant (Plaintiff), v. Debora Eileen CORKILL, Appellee (Defendant). Debora Eileen Corkill, Appellant (Defendant), v. Clark Tyler Knowles, as Personal Representative of the Estate of Lynn Rae Knowles, deceased, Appellee (Plaintiff).
    Nos. 00-254, 00-255.
    Supreme Court of Wyoming.
    Aug. 9, 2002.

      Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming, Representing Clark Tyler Knowles, Personal Representative for the Estate of Lynn Rae Knowles, Deceased.
    John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming, Representing Debora Eileen Corkill.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

      . While this appeal was docketed as spelling "Corkill” with an "h,” the record is unclear concerning the correct spelling; therefore, to be consistent with our prior case, Corkill v. Knowles, 955 P.2d 438 (Wyo.1998), we are omitting the “h.”

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[¶ 1] This is a wrongful death action that was decided after a jury trial. Although the alleged tortfeasor, Debora Eileen Corkill (Corkill), was apportioned 52% of the fault for the accident resulting in Lynn Rae Knowles’ death, no monetary damages were awarded. In appeal number 00-254, Lynn’s father, Clark Tyler Knowles (Knowles), acting in his capacity as the personal representative appeals certain evidentiary rulings made during trial and the denial of a motion for a new trial based upon an inconsistent verdict. In appeal number 00-255, Corkill appeals an evidentiary ruling that potentially affected the apportionment of fault. We find no error in the holdings of the trial court as alleged in appeal number 00-254. Because no monetary damages were awarded, appeal number 00-255 is dismissed as moot.

ISSUES

[¶ 2] Knowles, as appellant in appeal number 00-254, presents the following issues:

A. Did the District Court err when it refused to admit evidence of the effects of their mother’s disappearance and death upon Cassandra Ulmer and Chad Ulmer?
B. Did the District Court err in refusing to admit evidence of counseling, and the sense of loss and abandonment experienced by Chad and Cassandra Ulmer as a result of their mother’s disappearance and death?
C. Did the District Court err in refusing to admit evidence of emotional distress of Lynn Knowles’ survivors?
D. Did the District Court err in overruling plaintiffs objection to an inconsistent verdict for failure to award damages?
E. Did the District Court err in denying plaintiffs motion for a new trial?

Appellees restate the issues as:

1. The case law, principles of statutory construction, and logic, all support the trial court’s application of the Wyoming Wrongful Death statute.
2. The testimony of Dr. Shilling was irrelevant, without foundation, and speculative; the trial court appropriately exercised its discretion in limiting her testimony.
3. The jury applied both the law and the facts of the case in determining that the plaintiff, Clark Knowles, who sought reimbursement for disinterment and a funeral service, was not entitled to the same.

In the cross-appeal, appeal number 00-255, appellant Corkill challenges the introduction of certain evidence relating to her alleged blood alcohol level at the time of the accident.

FACTS

[¶ 3] Lynn Knowles, the decedent, grew up in Iowa. She married Randy Ulmer shortly after her eighteenth birthday in 1977. Lynn and Randy had two children: Cassandra, born in 1977; and Chad, born in 1978. At Lynn’s instigation, Lynn and Randy separated in August 1979 and were divorced in January 1980. Originally upon their separation, Lynn had physical custody of the children. A strike occurred at Randy’s workplace so he was able to help take care of the kids during the day. In December 1979, Randy got a new job and was no longer able to help care for the children. Within a couple of weeks, just before Christmas 1979, Lynn asked Randy to take physical custody of the children. He agreed to take the children, and Lynn never had physical custody of the children after that time.

[¶ 4] Although Randy had physical custody of the children at the time of the divorce in January 1980, the divorce decree granted legal custody of the children to Lynn. That arrangement, however, did not last long. In March 1980, Lynn asked Randy to assume legal custody of the children because she was thinking about joining the Navy. Randy assumed legal custody, but Lynn never did enlist. Nor did she ever attempt to regain legal or physical custody of the children. Over the course of the next several months, she saw the children only infrequently. She never paid any child support, nor was she required to under the divorce decree or custody agreement.

[¶ 5] In the fall of 1980, Lynn left her hometown to go to college. She went to Iowa City and stayed with her brother briefly, then briefly tried the college dorms, which she did not like, then lived with a female roommate off-campus. She placed at most two phone calls to Randy after she left her hometown. During one of these calls Lynn informed Randy that she was going to go to another school, perhaps in Cedar Rapids, but she did not give any more information. That was the last communication Randy had with Lynn. On October 31, 1980, Lynn placed a phone call to her sister’s house, stating that she was in San Jose. That was the last contact any of her family ever had with Lynn. Eventually, around October or November 1980, Randy received a phone call from a truck stop. Lynn had abandoned her automobile (still registered in his name) in the parking lot of the truck stop. The car had some of her clothes in it. Lynn’s family picked up the car.

[¶ 6] In the early morning hours of November 2, 1980, Lynn was struck and killed by a vehicle driven by Corkill in Casper. It is alleged that Corkill was operating the vehicle under the influence of alcohol. Corkill fled the scene of the accident without rendering aid to the victim or reporting the incident to authorities. Investigators and police officers were able to identify Corkill as the driver because pieces of her vehicle’s grill were left on the highway when she struck the decedent. Corkill was cited for leaving the scene of an accident involving injury or death.

[¶ 7] Authorities were unable to identify Lynn after the accident. Her purse and her wallet were missing, and she carried no other form of identification. For the next fourteen years Lynn’s family did not know what had happened to'her. Her two children thought she had abandoned them. Knowles hired a private investigator to find his daughter, but to no avail. Fourteen years later, after making further inquiries, investigating dental records, and exhuming the body, authorities were finally able to identify Lynn and contact her family. On March 6, 1995, Knowles reviewed police photographs of Lynn’s body, read a note found on her body, and identified the body as that of his daughter. Knowles had the body cremated, and the ashes were scattered in a family ceremony at Davenport, Iowa. In his capacity as the personal representative, Knowles filed this wrongful death action against Corkill in 1996. The case was tried to a jury in November 1999. The jury returned a verdict finding Corkill 52% at fault for the accident, and Lynn 48% at fault. The jury awarded no monetary damages. These timely appeals followed.

DISCUSSION

Damages Compensable under the Wrongful Death Act

[¶ 8] At trial, Knowles proffered the testimony of a psychologist, Dr. Martha Shilling, regarding feelings of abandonment suffered by the children after their mother disappeared. The trial court refused to allow Dr. Shilling to testify on the subject because it determined that any damages relating to feelings of abandonment constituted mental anguish damages and as such were not com-pensable under Wyoming law. The question before this Court, therefore, is a question of law regarding damages compensable under Wyoming’s Wrongful Death statute. We review questions of law de novo. Gray v. Stratton Real Estate, 2001 WY 125, ¶ 5, 36 P.3d 1127, ¶ 5 (Wyo.2001).

[¶ 9] As will be discussed below, based upon Wyoming’s Wrongful Death statute and also this Court’s interpretation of the statute, Wyoming has a long history of allowing damages for loss of probable future companionship, society and comfort, but does not allow damages for mental anguish. On appeal, Knowles first argues that feelings of abandonment are but a symptom of the loss of probable future companionship, society and comfort, and, therefore, the damages alleged fall within the statutory language. In the alternative, Knowles argues that, if the damages are in the nature of mental anguish, then this Court should take this opportunity to recognize damages for mental anguish as compensable under the statute.

[¶ 10] With regard to Knowles’ first argument, we agree with the trial court that any feelings of abandonment suffered by the children must be categorized as mental anguish. The difference between the loss of probable future companionship, society and comfort, which is compensable, and mental anguish, which is not compensable, has been explained and summarized as follows:

[R]ecovery for the beneficiaries’ mental anguish is primarily concerned, not with the benefits they have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one. This requires a somewhat negative approach. The fundamental question in this area of damages is what deleterious effect has the death, as such, had upon the mental tranquility and emotional well-being of the claimants? In other areas of damage, the law focuses on more positive aspects of the injury such as what would the decedent, had he lived, have contributed in terms of support, assistance, training, comfort, consortium, etc.

1 Stuart M. Speiser et ah, Recovery for Wrongful Death and Injury § 3:38 (3rd ed.1998). Put simply, loss of probable future companionship, society and comfort entails the loss of positive benefits, while mental anguish represents an emotional reaction to the wrongful death.

[¶ 11] Knowles attempts to argue that abandonment is simply the flip side of the same coin as the loss of comfort and society — -it is the obvious reaction of the children to being deprived of their mother’s company. Even if we were to accept this analogy as true, the obvious result is that one side of the coin is compensable while the other is not. Compensation can be had only for the monetary value of any benefits the decedent would have bestowed upon her children had she lived. The emotional reaction to their mother’s disappearance is not compensable.

[¶ 12] Dr. Shilling was allowed to testify at length. She testified that, in her opinion, the decedent eventually would have returned to her children and the children therefore suffered a loss of probable future companionship, society and comfort. The subject matter on which Dr. Shilling was not allowed to testify concerned feelings of abandonment suffered by the two children. These feelings clearly constitute mental anguish — an emotional response of the children to the disappearance of their mother. The proffered testimony was properly excluded.

[¶ 13] As for the alternative argument presented by Knowles, we decline to recognize mental anguish damages as com-pensable in wrongful death actions. Wrongful death actions did not exist at common law; they are purely creatures of statute. See generally Coliseum Motor Co. v. Hester, 43 Wyo. 298, 3 P.2d 105 (1931). Thus, we must look to the appropriate statute to determine the proper measure of damages. Section l-38-102(c) of Wyoming’s statutes defines the proper measure of damages as follows:

(c) The court or jury, as the case may be, in every such action may award such damages, pecuniary and exemplary, as shall be deemed fair and just. Every person for whose benefit such action is brought may prove his respective damages, and the court or jury may award such person that amount of damages to which it considers such person entitled, including damages for loss of probable future companionship, society and comfort.

Wyo. Stat. Ann. § l-38-102(c) (LexisNexis 2001).

[¶ 14] The first opportunity this Court had to discuss the measure of damages available under Wyoming’s Wrongful Death statute was in 1931 in Coliseum Motor Co. v. Hester, supra. The Wrongful Death statute in effect at the time provided for “such damages as [the jury] shall deem fair and just.” Coliseum, 43 Wyo. at 306, 3 P.2d at 106. In Coliseum, Justice Blume undertook a thorough analysis of the historical evolution of wrongful death actions, the language of Wyoming’s Wrongful Death statute, and the statutory language and damages allowed in various foreign jurisdictions. Justice Blume concluded that the measure of damages com-pensable under Wyoming’s Wrongful Death statute should include loss of care, attention and society, while no recovery could be had for mental suffering. This Court has never altered this judicial interpretation of “fair and just” damages.

[¶ 15] The legislature has amended the statutory language specifically addressing damages three times since Coliseum. Specifically, in 1939, a sentence was added to the damages clause:

[T]he jury shall give such damages as they shall deem fair and just. The court or jury may consider, as elements of damages, the amount the survivors failed or will fail, by reason of the death, to receive out of the decedent’s earnings, and further the court or jury may add, as an element of damage, a reasonable sum for the loss of the comfort, care, advice and society of the decedent.

1939 Wyo. Sess. Laws ch. 104, § 1 (emphasis added). In 1947, the language was amended to read:

[T]he jury shall give such damages as they shall deem fair and just. The court or jury may consider, as elements of damages, the amount the • survivors failed or will fail, by reason of the death, to receive out of the decedent’s earnings, any other pecuniary loss directly and proximately sustained by the survivors by reason of such death including funeral expenses, and further the court or jury may add, as an element of damage, a reasonable sum for the loss of the comfort, care, advice and society of the decedent.

1947 Wyo. Sess. Laws ch. 132, § 1 (emphasis added). Finally, in 1973, the entire section was rewritten and divided into subdivisions. Subdivision (c), relating to damages, was written as follows:

The court or jury, as the ease may be, in every such action may award such damages, pecuniary and exemplary, as shall be deemed fair and just. Every person for whose benefit such action is brought, may prove his. respective damages, and the court or jury may award such person that amount of damages to which it considers such person entitled, including damages for loss of probable future companionship, society and comfort.

1973 Wyo. Sess. Laws ch. 139, § 1. This language has remained the same for almost thirty years and is the exact same language found in the statute today.

[¶ 16] Knowles argues that the change in language in the 1973 amendment allows for recovery for mental anguish. Specifically, Knowles argues that the addition of the word “including” in the phrase “including damages for loss of probable future companionship, society and comfort” indicates that the legislature no longer intends to limit recovery to only companionship, society and comfort. Knowles argues “including” means “including but not limited to” and, therefore, there is no limit on damages and damages for mental anguish must be compensable.

[¶ 17] We disagree. The language simply does not support such a sweep to the infinite. The legislature has continuously used the phrase “fair and just.” As a matter of simple statutory construction, the legislature’s use of the term “including” cannot be interpreted as rendering null and void the legislature’s use of the term “fair and just” as a limitation on damages. See Britton v. Bill Anselmi Pontiac-Buick-GMC, Inc., 786 P.2d 855, 864 (Wyo.1990) (“We construe every word, eveiy clause and every sentence so as to avoid rendering the legislature’s actions futile or absurd.”).

[¶ 18] The phrase “fair and just” was clearly defined by this Court in Coliseum to exclude recovery for mental anguish. This judicial interpretation of the phrase has carried forward with all the amendments. See generally Civic Ass’n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 238-39, 116 P.2d 236, 245 (Wyo.1941). We agree with the reasoning of the Supreme Court of Colorado which, when faced with a similar call to expand damages by means of statutory construction, stated:

The suggestion that this Court should depart from its prior pronouncements defining the measure of damages recoverable under our wrongful death statute would do utter violence to the well-established rule of statutory construction that when a legislature repeatedly re-enacts a statute which has theretofore received a settled judicial construction, there can be no doubt as to the legislative intent, and in such circumstances it must be considered that the particular statute is re-enacted with the understanding that there be adherence by the judiciary to its former construction.

Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422, 426 (1962). It is for the legislature to change the accepted interpretation of “fair and just” and the legislature has never expressly done so.

[¶ 19] From judicial interpretation to statute, the law in Wyoming is firmly set that no recovery is allowed in a wrongful death action for mental anguish. Because wrongful death actions, including compensa-ble damages, are governed by statute, it is the province of the legislature to alter the existing law. We have no authority to substitute our views for those expressed by the Wyoming legislature in a duly enacted statute. The measure of damages is set by statute to exclude damages for mental anguish and we are not at liberty to extend the statutorily proscribed remedies. “[I]t is a universal rule that courts will not enlarge, stretch, expand or extend a statute to matters not falling within its express provisions. Appellant therefore asks more than we can grant.” Lo Sasso v. Braun, 386 P.2d 630, 632 (Wyo.1963). Because damages for mental anguish are not recoverable in a wrongful death action, and because feelings of abandonment clearly constitute mental anguish, the proffered testimony was properly excluded.

Inconsistent Verdict

[¶ 20] As to his last two issues, in his brief Knowles simply complains that a new trial should be granted because the jury verdict was inconsistent in that the jury awarded zero monetary damages even though it found Corkill 52% at fault for the death of Lynn Knowles. We review a judge’s denial of a motion for a new trial under an abuse of discretion standard. John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1357 (Wyo.1998) (“[A] trial court is vested with broad discretion when ruling on a motion for new trial, and we will not overturn the court’s decision except for an abuse of that discretion.”).

[¶ 21] To the extent that Knowles is questioning the sufficiency of the evidence supporting the jury verdict, we give great deference to a jury verdict:

In reviewing a sufficiency-of-the-evidence question, we assume the evidence in favor of the successful party to be true, leaving out of consideration entirely the evidence in conflict, and assigning every favorable inference to the evidence of the successful party that can be reasonably and fairly drawn from it. City of Rock Springs v. Police Protection Ass’n, Wyo., 610 P.2d 975 (1980); Brittain v. Booth, Wyo., 601 P.2d 532 (1979). In addition, when reviewing a jury verdict, we leave to the jury the duty of ascertaining the facts, reconciling conflict therein and drawing its own inferences if more than one inference is permissible. Neal v. Wailes, Wyo., 346 P.2d 132, 134 (1959). Also, when the facts permit the drawing of more than one inference, then it is for the jury to choose which one will be utilized and, if supported by substantial evidence, the jury’s choice will be held by us to be conclusive. Berta v. Ford, Wyo., 469 P.2d 12, 15 (1970); Ford Motor Company v. Arguello, Wyo., 382 P.2d 886 (1963).

Crown Cork & Seal Co., Inc. v. Admiral Beverage Corp., 638 P.2d 1272, 1274-75 (Wyo.1982). Further:

Juries generally have great discretion in determining the amount of damages to be awarded. John Q. Hammons Inc., 954 P.2d at 1358; see also Union Pacific Railroad Company v. Richards, 702 P.2d 1272, 1278 (Wyo.1985). We are reluctant to interfere with a jury’s verdict on damages “unless the award, by its excessiveness or inadequacy, denotes passion, prejudice, bias or some erroneous basis.” John Q. Hammons Inc., 954 P.2d at 1358. See also Union Pacific Railroad Company, 702 P.2d at 1278.

Francis v. Pountney, 972 P.2d 143, 146 (Wyo.1999).

[¶ 22] Knowles first points to the fact that proven and uncontested funeral expenses were presented to the jury. Knowles argues that, at the very least, the jury should have awarded these funeral expenses and its failure to do so “denotes passion, prejudice, bias or some erroneous basis.” Under the unique facts of this case, however, we find no inconsistency with the jury’s verdict.

[¶ 23] Evidence exists supporting the jury’s determination not to award the funeral expenses. Under the statute, damages are not presumed. Each individual participating must bring and prove their respective claim for damages. See Farmers Ins. Exchange v. Dahlheimer, 3 P.3d 820, 823 n. 1 (Wyo.2000) (“each person entitled to participate must establish damages”). The funeral expenses were incurred by Knowles. At trial, the following exchange took place during the direct examination of Knowles:

Q. Mr. Knowles, you’re the personal representative in this lawsuit?
A. Yes, sir.
Q. Are any of Lynn’s brothers or sisters making a claim?
A. No, sir.
Q. Why not?
A. This is about my grandchildren, about Lynn’s children.
Q. How do you feel?
A. The same way.

[¶ 24] It is a reasonable inference from this testimony that Knowles, as the personal representative, was presenting the lawsuit solely for the benefit of his grandchildren. The jury is entitled to take Knowles at his word and consider the request for funeral expenses abandoned. Given this testimony, there is no error to be found in the jury not awarding funeral expenses.

[¶ 25] Finally, Knowles cites the general proposition that it is “incomprehensible” that the jury would not award even nominal damages to children who have lost their mother. Knowles provides no argument except one sentence and cites no legal authority for this proposition. As such, we decline to address the issue beyond repeating the statement above that there is no presumption of damages under Wyoming’s Wrongful Death statute. No damages can be awarded beyond those damages that are proven at trial.

[¶ 26] We are not unmindful of the seeming harshness of this verdict. A zero damages verdict, however, is not without precedence. As an example, this Court upheld a zero damages verdict in Woodbury v. Nichols, 797 P.2d 556 (Wyo.1990). In Woodbury, a wrongful death case, this Court determined that “appellate courts should interfere with such a verdict only where the evidence of damages is uncontradicted.” Id. at 558. During the Woodbury trial, conflicting evidence was presented regarding the personal relationship between the deceased and the individual family members involved in the action. Under the unique facts of that case, it ultimately was determined that “the conscience of this court is not shocked nor can we conclude that the zero damage award was inadequate as a matter of law.” Id. at 559.

[¶ 27] It is impossible to generalize the extent to which persons enjoy each other’s companionship and society. The value of such highly personal relationships must be decided on a case-by-case basis. In the present case, Lynn’s children were required to prove that they suffered a loss of probable future companionship, society and comfort because of the death of their mother. The facts of this case, however, show that the decedent, Lynn Knowles, had already voluntarily walked away from her children before her death. The jury was free to use their own experience and knowledge of human affairs in interpreting the evidence presented. It is not “incomprehensible” for the jury to determine that, under the peculiar facts of this case, Lynn’s children did not suffer any compensable loss.

[¶ 28] We find nothing in the arguments presented by Knowles to indicate that the jury’s verdict on damages resulted from passion, prejudice, bias or some erroneous basis. Evidence exists supporting an award of zero damages to Knowles and to Lynn’s children. No new trial is warranted.

CONCLUSION

[¶ 29] We continue to hold that damages for mental anguish — a person’s emotional response to a wrongful death — are not compen-sable under Wyoming’s Wrongful Death statute. It is the province of the legislature, not this Court, to expand the remedies available under the statute. The proffered testimony regarding feelings of abandonment suffered by Lynn’s children was properly categorized as mental anguish and was properly excluded. Under the unique facts of this case, we see no reflection of passion, prejudice, bias or any erroneous basis in the zero damages verdict.

[¶ 30] The verdict appealed from in appeal number 00-254 is affirmed in all respects. Because no damages were awarded, appeal number 00-255 is dismissed as moot.

      . Many of the facts are taken from the opinion in the first appeal, Corkill v. Knowles, 955 P.2d 438 (Wyo.1998).

      . Jury Instruction # 3 contained the following language: "The jury is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. In so doing, you may give it such weight as you think it is entitled in the light of your experience and knowledge of human affairs.”


source: Caselaw Access Project

author: LEHMAN, Chief Justice.

license: Public Domain

text:
    2002 WY 120
    The STATE of Wyoming, Petitioner, v. Richard E. CURTIS, Respondent.
    No. 00-196.
    Supreme Court of Wyoming.
    Aug. 12, 2002.
    Rehearing Denied Sept. 17, 2002.

      Representing Petitioner: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Scott A. Sargent, Special Assistant Attorney General. Argument by Mr. Sargent.
    Representing Respondent: James K. Lubing of James K. Lubing Law Office, Jackson, WY; and Heather Noble, Jackson, WY. Argument by Mr. Lubing.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Chief Justice.

[¶ 1] The State seeks review of a district court order reversing Curtis’ conviction on the ground that the method utilized by the circuit court for compiling the jury list and calling potential jurors from only the northern part rather than the whole of Lincoln County violated Wyoming Statute. We reverse, holding that the legislature has provided two alternative methods for compiling jury lists and that the method utilized by the circuit court in this ease falls within the second legislatively authorized method.

ISSUES

[¶ 2] The State presents the following issue:

Do Wyo. Stat. §§ 18-3-402, 1-11-129, 1-11-106, and 1-11-109 require the county (circuit) court to call potential jurors from a jury list comprised of residents from the entire county, without deviation, or may the county (circuit) court, if sitting in more than one location in the county, call names of potential jurors from different jury lists comprised of residents of the county residing closer to the place of trial?

FACTS

[¶ 3] Curtis was charged with two counts of reckless endangering after allegedly pointing a loaded firearm at two men in a vehicle parked along the edge of his property near Alpine in northern Lincoln County.

[¶ 4] Prior to trial, Curtis asked the court to select the pool of prospective jurors to hear the case from the entirety of Lincoln County, rather than from the northern half as was the court’s customary practice in cases arising in that part of the county. Citing the Wyoming Constitution and state statute, Curtis argued that potential jurors must be selected from the county as a whole and that the circuit court had no authority to restrict the pool from which jurors were selected to a smaller geographic area.

[¶ 5] The circuit court denied the motion, holding that the constitution guarantees only the right to trial by an impartial jury, that it is up to the legislature to determine the mechanism for compiling lists of potential jurors and that, pursuant to Wyo. Stat. Ann. § 1-11-129 (LexisNexis 2001), the legislature has given the courts broad discretion in compiling juror lists so long as the integrity of the system and a random selection process are preserved.

[¶ 6] The ease proceeded to trial, and Curtis was convicted on both counts. He appealed to district court, where he again raised the issue of the propriety of selecting the jury pool from only half the county. After briefing by the parties, the district court reversed the decision of the circuit court. While noting that the circuit court’s reasons for dividing the county in half were valid, the district court held that Wyoming statutory law requires that juror lists be comprised of persons from all parts of the county.

[¶ 7] The State timely filed a petition for writ of review of the district court’s order.

STANDARD OF REVIEW

[¶ 8] We review a district court’s statutory interpretation de novo. Basin Elec. Power Coop. v. Bowen, 979 P.2d 503, 506 (Wyo.1999). The primary objective in interpreting statutory language is to ascertain and effectuate legislative intent. US West Communications, Inc. v. Public Serv. Comm’n, 988 P.2d 1061, 1064 (Wyo.1999). Legislative intent is ascertained initially and primarily from the words used in the statute. Wyoming Cmty. College Comm’n v. Casper Cmty. College Dist., 2001 WY 86, ¶ 16, 31 P.3d 1242, ¶ 16 (Wyo.2001). We look first to the plain and ordinary meaning of the words used in the statute. Id. at ¶ 17, 31 P.3d 1242. When the words are clear and unambiguous, a court impermissibly risks substituting its own views for the intent of the legislature if it attempts to interpret or construe the statute on any basis other than the language used by the legislature. Id. at ¶ 16, 31 P.3d 1242. Where statutory language conveys a clear and definite meaning, this court neither faces the need nor acquires the license to construe the statute. US West, at 1064, citing Matter of SYM, 924 P.2d 985, 987 (Wyo. 1996).

[¶ 9] A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Wyoming Comty. College Comm’n, ¶ 17. A statute is ambiguous if it is vague, uncertain, or subject to •varying interpretations. Id. While differing opinions as to the meaning of a statute are not conclusive of ambiguity, they may be evidence of ambiguity. Id. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Id.

[¶ 10] In interpreting statutory language, we review all parts of the statute in pari materia, giving effect to each word, clause, and sentence so that no part will be inoperative or superfluous. Matter of Interest ofWJH, 2001 WY 54, ¶ 16, 24 P.3d 1147, ¶ 16 (Wyo.2001). We will not interpret statutes in a manner which renders any portion meaningless or produces absurd results. Id.

DISCUSSION

[¶ 11] The State argues that Wyoming law does not require juror lists to be comprised of residents from all parts of the county. Rather, the State contends, Wyoming law provides for two alternative methods of compiling juror lists: first, Wyo. Stat. Ann. § 18-3-402(a)(xix) (LexisNexis 2001) requires the clerk of court to compile a list of all registered voters in the county and, second, Wyo. Stat. Ann. § 1-11-129 (LexisNexis 2001) gives the courts discretion to modify the procedure set forth in § 18-3-402(a)(xix) and to compile a list by other means insuring the integrity of the system and a random selection process. The State contends that the method used by the court in this case falls within the latter statutory provision.

[¶ 12] The statutory provisions at issue here provide as follows:

§ 18-3-402. Duties generally.
(a) The county clerk shall:
(xix) Compile a list of all persons whose names appear on the official register of voters and who appear to have the qualifications to serve as trial jurors. The list shall state the name and address of each person, be made in triplicate, and be certified by the county clerk. Two (2) copies of the list shall be delivered to the clerk of the district court by the county clerk on or before March 1 of each year, and one (1) copy shall be filed by the county clerk as a permanent record. The lists certified to the clerk of the district court may be in such form as to enable the names to be separated into suitable ballots for use by the clerk of court as provided by law[.]

§ 1-11-129. Alternative procedure.

The procedures for compiling and maintaining jury lists, jury ballots and jury boxes, and for drawing jurors, may be modified by the court to permit the compilation and maintenance of jury lists and ballots and for the drawing of jurors by any manual, mechanical, electronic or other means calculated to insure the integrity of the system and a random selection process.

[¶ 13] Looking first at § 18-3-402(a)(xix), the language clearly and unambiguously states that the list compiled by the county clerk must contain the names of all persons who appear on the voter registration list. The voter registration list contains the names of all registered voters in the particular county (not just a portion of the county) so including all persons on that list on the juror list necessarily results in a countywide jury list. Thus, under this provision of Wyoming law, the list may not be restricted only to those persons on the voter registration list who reside in the northern half of the county. The statute clearly and unambiguously requires the inclusion of all registered voters in the county.

[¶ 14] However, § 1-11-129 authorizes the courts to modify the procedures for compiling and maintaining jury lists and seems to allow the selection of jurors by any means so long as the integrity of the system and randomness of the process are preserved. Read by themselves §§ 18-3-402(a)(xix) and 1-11-129 suggest that the legislature intended to provide two separate and distinct methods for compiling lists of potential jurors, one addressed to the clerk of court and another addressed to the courts themselves.

[¶ 15] Wyo. Stat. Ann. § 1-11-106 (Lexis 1999) supports this conclusion. That section provides in pertinent part as follows:

(a) The list of persons qualified to serve as trial jurors, certified and delivered to the clerk of the district court in accordance with W.S. 18-3-402 or a list of persons compiled under an alternate procedure pursuant to W.S. 1-11-129, is the base jury list for the district court, the county court and justice of the peace eourts[.]

(Emphasis added.)

[¶ 16] This provision clearly and unambiguously states that there are two alternative methods for compiling juror lists— the list compiled by the county clerk in accordance with § 18-3-402 (all registered voters in the county) or a list compiled according to procedures established by the courts in accordance with § 1-11-129. Juror lists compiled in compliance with either one of these alternatives constitute the base jury list for all courts in the particular district.

[¶ 17] Curtis concedes that these statutory sections provide alternate methods of selecting juries in Wyoming courts. He contends, however, that Wyoming law does not give courts the discretion to limit juror lists to residents of only one part of the county because such a limitation destroys the randomness of the selection process. In support of this contention, he quotes the definition of “random” contained in Webster’s Third International Dictionary (1971)— lacking or seeming to lack a regular plan; marked by absence of bias; chosen at random; a true sample of the whole list; having the same probability of occurring as every other member of a set. At 1880.

[¶ 18] We are not persuaded that the circuit court’s method of drawing jurors from either the northern or the southern half of the county, depending upon where the case arose, destroys the randomness of the selection process. Nothing in the record before the court suggests the existence of any bias or regular plan in how the names of potential jurors are drawn from each half of the county. The record likewise is devoid of any evidence showing that the final list is not a true sample of the whole list of potential jurors from the particular half of the county. There is no evidence that the name of one potential juror in the particular half of the county has more probability of occurring than any other. Nor is there evidence of any improper motive in drawing the line between north and south, a line that has been drawn not just for this case but for all cases arising in Lincoln County. It is not as if there are people in Lincoln County who are systematically eliminated from jury service forever under the circuit court’s method. All registered voters in the county are still potential jurors, they simply serve in the circuit court nearest their home. In a large county, like Lincoln County where there are two circuit courts located one hundred miles apart, this selection process makes practical sense. Absent some evidence to support the assertion that the circuit court’s method for drawing jurors destroys the randomness of the process, it appears that randomness remains intact although selection is from a smaller pool.

[¶ 19] No claim is made in this case that anyone in the pool or on the eventual jury was not qualified to serve. This is not a situation where the defendant was tried by a jury made up of jurors from outside the area where the offenses were alleged to have been committed — both the defendant and the jurors who heard the case reside in the northern half of Lincoln County. There is no evidence, nor is it even really argued, that the selection process failed to provide Curtis with a jury drawn from a source representative of a fair cross section of the community in which the offenses were alleged to have occurred. Under these circumstances, we find no error in the selection process.

CONCLUSION

[¶ 20] The order of the district court is reversed.

GOLDEN, J., dissenting, in which HILL, C.J., joins.

[¶ 21] In a criminal prosecution in the County Court of Lincoln County, over his objection, Richard E. Curtis was tried by a jury the members of which were initially gathered from only the northern half of that county. Curtis maintains that the Wyoming Legislature requires that the jurors be gathered from the entirety of that county.

[¶ 22] Having carefully read the pertinent statutes in the manner required by this Court’s rules of statutory construction, I have concluded that the Wyoming Legislature requires the courts to gather trial jurors from the entire county. All agree that we are to find the answer to the question by reading Wyo. Stat. Ann. § 18-3-402(a)(xix), Wyo. Stat. Ann. § l-ll-106(a), and Wyo. Stat. Ann. § 1-11-129.

[¶ 23] Let us first read § 18-3-402(a)(xix). Title 18 concerns counties; chapter 3 concerns county officers; article 4 concerns county clerks, and section 402 concerns the duties of a county clerk. Specifically, § 18-3^102(a)(xix) reads in pertinent part that the county clerk shall

[c]ompile a list of all persons whose names appear on the official register of voters and who appear to have the qualifications to serve as trial jurors. The list shall ... be certified by the county clerk.... [T]he list shall be delivered to the clerk of the district court by the county clerk.... The lists ... may be in such form as to enable the names to be separated into suitable ballots for use by the clerk of court as provided by law.

As the majority opinion correctly observes, the list compiled by the county clerk under this section must contain the names of all persons who appear on the voter registration list. And, further, the voter registration list contains the names of all registered voters in the particular county (not just a portion of the county) so including all persons on that list on the juror list necessarily results in a eountywide jury list. Thus, under this section, the list may not be restricted only to those persons on the voter registration list who reside in the northern half of the county. The section requires the inclusion of all registered voters in the county.

[¶24] Let us next read § l-ll-106(a). Title 1 concerns the Code of Civil Procedure; chapter 11 concerns Trial by Jury; article 1 concerns Qualifications, Selection and Empaneling of Juries; and section 106 is entitled “Jury list, preparation of ballots for jury box, drawing jury panel, certificate and summons.” Specifically, § l-ll-106(a) reads in pertinent part that the county-wide list delivered by the county clerk to the district court clerk

in accordance with W.S. 18-3-402 or a list of persons compiled under an alternate procedure pursuant to W.S. 1-11-129, is .the base jury list....

[¶25] Let us now quickly read § 1 — 11— 129 so we know about this “list ... compiled under an alternate procedure pursuant to W.S. 1-11-129.” Section 129 entitled “Alternate procedure” reads

The procedures for compiling and maintaining of jury lists, jury ballots and jury boxes, and for drawing jurors, may be modified by the court to permit the compilation and maintenance [of the items mentioned above] and for the drawing of jurors by any manual, mechanical, electronic or other means calculated to insure the integrity of the system and a random selection process.

(emphasis added). The only meaning this provision conveys to me is that the court may modify compilation and. maintenance procedures and juror drawing procedures to permit those procedures to be physically performed by manual means, or mechanical means, or electronic means or other means calculated to insure the integrity of the system and a random selection process. The section obviously focuses on “procedures” and performing those “procedures” manually, mechanically, electronically or some other similar way. Webster’s Dictionary defines “procedure” as “a particular way of accomplishing something or of acting.” Webster’s Collegiate Dictionary 926 (10th ed.2000). It defines “means” as “something useful or helpful to a desired end.” Id. at 718. In other words, the sense of this section concerns simply the physical act of compiling and maintaining jury lists and jury ballots and boxes and the physical act of jury drawing. So read, this section contains no authorization for a court to compile a juror list from a geographical area less than the entire county as provided in § 18-3-402(a)(xix).

[¶26] Returning, then, to § l-ll-106(a) in which reference is made to the list compiled under an alternate Section 129 procedure, we clearly understand that the base jury list is one physically compiled by any means manually, mechanically, electronically, or otherwise calculated to insure system integrity and a random selection process and is from the entire county.

[¶ 27] I would reverse and remand to the circuit court for further proceedings in accordance with this dissenting opinion.


author: CARPENETI, Justice.

text:
    Daniel DeNARDO, Appellant, v. ABC INC. RVS MOTORHOMES, and Harvey Yates, Appellees.
    No. S-9980.
    Supreme Court of Alaska.
    July 26, 2002.

      Daniel DeNardo, pro se, Anchorage.
    Cheryl L. Graves and Laura L. Farley, Le Gros Buchanan & Paul, Anchorage, for Ap-pellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

■ “It is precisely because outright failures to respond to discovery halt the case development process dead in its tracks, and threaten the underpinnings of the discovery, system, that [Rule 37] authorizes ... courts, in responding to this kind of misconduct, ... to impose in the first instance any of a wide range of sanctions.” Such power, however, does not go unchecked and is the subject of this appeal. Daniel DeNardo claims the superior court abused its discretion in dismissing his complaint for failure to comply with a court order compelling discovery. DeNardo also makes constitutional as well as other claims in regards to the superior court’s order. However, because DeNardo was given multiple chances to comply with discovery but each time refused, we affirm the decision of the superior court.

II. FACTS AND PROCEEDINGS

Daniel DeNardo was an employee of ABC, Inc. RVs Motorhomes (ABC). DeNardo applied for a position as a recreational vehicle (RV) salesperson advertised in a newspaper by submitting his resume. On March 8, 1999, ABC alleges that John and Jay Mar-quardt interviewed DeNardo and offered him the position. DeNardo, however, argues only John Marquardt was present during the interview.- The employment agreement was oral; no written document verified the terms of DeNardo’s employment. On March 12, 1999, while DeNardo was filling out an employment form designed to verify his identity and work eligibility, ABC alleges that De-Nardo displayed his passport, but did not show his driver’s license. ABC claims De-Nardo was informed a valid driver’s license was necessary for the position because he was occasionally required to drive the RVs. DeNardo claims his driver’s license was never requested and that he was told he would not have to drive the RVs as a part of his employment.

DeNardo was terminated on March 25, 1999 for his failure to provide a driver’s license and his hostile behavior.

DeNardo filed a complaint in superior court in May 1999 alleging breach of an oral employment contract, interference with contractual relations, and emotional distress. In response to the complaint, ABC contended that, although DeNardo was employed by the company, there was no employment contract because he was an at-will employee. ABC argues that DeNardo’s dismissal was justified.

In October 1999 DeNardo filed a motion to compel production of documents, generally seeking employment information about other salespeople employed by ABC. This motion was denied by Superior Court Judge Brian Shortell. DeNardo moved for reconsideration of the issue. This motion was denied in November 1999.

Also in November 1999 ABC filed a motion to compel. The motion claimed DeNardo had failed to provide requested information regarding his prior residences and employers, his criminal and litigation history, and his subsequent employment. The motion also requested pertinent background information such as a copy of his driver’s license, social security card, tax records, and signed release authorizations. Judge Shortell granted the motion and awarded $100 to ABC as attorney’s fees for having to bring the motion to compel. Judge Shortell also ordered DeNardo to respond to the order compelling discovery by December 27. De-Nardo moved for reconsideration, but reconsideration was denied.

DeNardo failed to comply with Judge Shortell’s order compelling discovery. ABC then filed a second motion to compel requesting ' dismissal of DeNardo’s complaint or, in the alternative, additional sanctions. The alternative ABC proposed was that “the presumption should be drawn in favor of the Defendants.” ABC asked that DeNardo be prohibited from offering any of the information requested into evidence and that a presumption be established that DeNardo was an at-will employee hired on a commission basis, “thereby presuming no contract existed.” DeNardo opposed ABC’s motion and filed a second motion to compel on February 14, 2000. On February 15 Judge Shortell issued a second order against DeNardo compelling discovery, but he declined to dismiss DeNardo’s lawsuit. Instead, Judge Shortell stayed any action in the lawsuit for sixty days, waiting for DeNardo to comply with the order and warning that failure to comply now might result in dismissal.

On April 7 ABC wrote to DeNardo advising him of the imminent deadline and its intent to renew the motion to dismiss if he did indeed fail to comply. No response was received. Sixty days passed and DeNardo again failed to comply. ABC again moved to dismiss. On May 9 DeNardo filed a motion for discovery, alleging he needed information from ABC in order to respond to ABC’s motion to dismiss. By this time, because of Judge Shortell’s retirement, Superior Court Judge Stephanie E. Joannides had been assigned the case. Upon review of the pleadings, Judge Joannides dismissed the lawsuit under Alaska Rule of Civil Procedure 37(b)(2)(C) for DeNardo’s failure to comply with the court’s previous discovery orders. DeNardo subsequently moved for reconsideration and renewal of his previous discovery motions. ABC opposed reconsideration and reconsideration was denied.

DeNardo now appeals the superior court’s order of dismissal.

III. STANDARD OF REVIEW

We review a trial court’s imposition of sanctions under Alaska Rule of Civil Procedure 37(b) for a party’s failure to comply with a discovery order for an abuse of discretion. However, a “trial court’s discretion is limited when the effect of the sanction it selects is to impose liability on the offending party, establish the outcome of or preclude evidence on a central issue, or end the litigation entirely.”

Whether a trial court weighed the appropriate factors in issuing a discovery order is reviewed de novo. Factual findings by the trial court are reviewed under the clearly erroneous standard.

“When interpreting the Civil Rules we exercise our independent judgment, adopting the rule of law that is most persuasive in light of reason, precedent, and policy.” Constitutional questions are reviewed de novo.

IV. DISCUSSION

A. The Superior Court Was Within Its Discretion in Dismissing DeNardo’s Complaint.

DeNardo argues that Judge Joan-nides was not within her discretion in dismissing his complaint for violation of a discovery order. We disagree.

Alaska Rule of Civil Procedure 37 “affords trial courts broad power to enforce discovery orders by the use of sanctions.” Rule 37(b)(2)(C) provides in relevant part that when a party fails to obey an order to provide discovery, the court may enter an order dismissing the action. However, the sanction of dismissal is only allowed in extreme cases because “ ‘a party should not be barred from his or her day in court where an alternative remedy would suffice to make the adverse party whole.’ ”

Because of the extreme nature of dismissal, the Rules of Civil Procedure require that before a case is dismissed the trial court must first find (1) that the non-complying party acted willfully to violate the order in question, (2) that there is resulting prejudice to the opposing party, and (3) that the imposed dismissal is sufficiently related to the violation at issue. In addition, the court must consider a reasonable exploration of alternatives to dismissal and whether those alternatives would adequately protect the opposing party as well as deter other discovery violations.

1. DeNardo’s failure to comply with Judge Shortell’s discovery order was willful.

DeNardo claims that the superior court’s order deleting six categories of discovery from ABC’s original motion to compel shows that his failure to comply with the court’s order was not willful. Moreover, he argues that, if he had been allowed to answer ABC’s motion to dismiss with the discovery material he sought from ABC, it would show that ABC had committed many misrepresentations. ABC responds that DeNardo willfully disobeyed the court’s order. Willfulness in this context is defined as a “conscious intent to impede discovery, and not mere delay, inability or good faith resistance.”

Although the court did limit the amount of discovery that ABC had originally requested, this order in itself does nothing to show that the remaining discovery requests that were allowed were unwarranted, or that DeNar-do’s actions in failing to comply with the court’s order were in good faith. If anything, the limiting order shows the superior court’s effort to ensure that DeNardo was not being harassed through the discovery process, not that the remaining discovery was irrelevant.

DeNardo also argues that if the court had granted his motion to compel he could have obeyed the court’s order. However, we rejected this argument in Hikita v. Nichiro Gyogyo Kaisha, Ltd. In Hikita we held that a discovery request cannot be satisfied by a party claiming “it is ‘attempting to ascertain the answers,’ and putting off its obligation to a later date.” And, as in Hughes v. Bobich, DeNardo’s argument here “misallocates the applicable burden of proof on the issue of willfulness. Once noncompliance has been demonstrated, the noncomplying party bears the burden of proving that the failure to comply was not willful.” DeNardo fails to meet this burden. Rather than showing that his failure to comply was not willful — for example, by showing that the requested material was lost — DeNardo repeatedly claimed that ABC had no right to the answers or documents. But the superior court had previously decided that ABC had precisely that right (and DeNardo has not appealed that finding).

DeNardo also claims that his actions were not willful because the information could be found in the public record or because ABC was already in possession of the relevant information. However, “we do not require a complying party to devise creative ways to obtain information that the noncomplying party controls and refuses to produce.” In Hughes, we found that “[bjecause the evidence established a substantial and continuing violation ... and because the Hughes failed to meet their burden of disproving willfulness, the court could properly find that the Hughes’ noncompliance was willful.” Similarly here, the evidence establishes a continuing violation of the court’s order. While the violation may not be as egregious as violations in other eases, DeNardo distin-

guishes himself by showing no intention of ever complying with the court’s orders.

In addition, ABC is correct that it is illogical for DeNardo to argue that he needs discovery from ABC in order to complete a discovery order compelling information from him. Additional discovery from ABC would, in no way, make DeNardo’s driver’s license or his prior work history easier for him to produce and DeNardo does not explain in his briefing why such discovery would help.

Although he does not argue it, we also note that DeNardo’s pro se status does not provide an excuse for his noncompliance with the court’s order. In her order, Judge Joannides specifically found DeNardo to be familiar with the litigation process based on other previous and pending actions with which he was involved. And, as we found in Coffland v. Coffland, pro se litigants “must make some attempt to comply with the court’s procedure before receiving the benefit of the court’s leniency.” DeNardo has made no effort to comply and therefore is not entitled to any special allowances based on his pro se status.

The burden was on DeNardo to show his conduct in not answering ABC’s discovery was not willful, but instead was good faith resistance. Because DeNardo did not meet this burden, we find his conduct to evidence a willful intent to impede discovery.

2. ABC suffered prejudice as a result of DeNardo’s failure to comply.

ABC argues it suffered prejudice as a result of DeNardo’s failure to produce the requested information. Analysis of each category of requested information supports ABC’s position.

a. Prior residences and employers

ABC argues that it was prejudiced by De-Nardo’s failure to provide information regarding his prior residences and employers, information that might go towards DeNar-do’s credibility. A listing of DeNardo’s prior residences, ABC claims, might have aided in determining jurisdictions to search for his criminal and litigation history.

ABC is correct that information regarding DeNardo’s prior residences and employers might have been helpful in determining which jurisdictions to search for his criminal and litigation history. In addition, it may have been helpful in determining DeNardo’s credibility; credibility would likely be particularly important in resolving the underlying dispute here, which concerns an oral contract. Knowledge of prior residences would allow ABC to contact past neighbors of De-Nardo’s who might give further information regarding credibility. Speaking to past employers would allow ABC to determine if DeNardo had had previous work-related, problems and might also go towards determining his credibility in work-related situations.

Because DeNardo’s prior residences and employment history would have been helpful in determining how to uncover other relevant evidence as well as issues involving DeNar-do’s credibility, Judge Joannides did not err in finding ABC was prejudiced by DeNardo’s failure to provide the information.

b. Criminal and litigation history

ABC claims that information regarding DeNardo’s criminal and litigation history was necessary because it could have affected De-Nardo’s credibility, a necessary factor in resolving a disputed oral contract. DeNardo claims that such information is generally irrelevant, that character evidence is not admissible in a civil trial, and that, in any event, such information is available in the public record.

As noted above, credibility is a necessary factor in resolving a dispute over an oral contract. DeNardo’s criminal history is thus possibly relevant as it might affect the fact-finder’s view of DeNardo’s credibility. DeNardo’s previous litigation history is potentially relevant as well, and it might lead to the discovery of admissible evidence.

c. Subsequent employment and tax records

ABC argues that in order to properly determine damages, information regarding De-Nardo’s subsequent employment is required. DeNardo responds that ABC already possesses information regarding his subsequent employment and that his tax records are “protected.”

We have held that “[w]ithholding materials relating to a party’s damages may seriously prejudice the adverse party by making it difficult or impossible to adequately assess the strength of the opponent’s case, thereby leaving the opponent in a weakened position for settlement negotiations or other purposes.” That appears to have been the case here.

In his complaint, DeNardo requested compensatory damages. However, as DeNardo knows from his own previous litigation, “ ‘a plaintiff alleging breach of contract must present evidence sufficient to calculate the amount of the loss caused by the breach.’ ” DeNardo argues that ABC has all of the information it needs because it knows he was subsequently hired by Alaska Economy RVs. However, “[t]he purpose of awarding damages for a breach of contract is to put the injured party in as good a position as that party would have been had the contract been fully performed.” Therefore, by analogy to wrongful discharge cases, an employee is generally entitled to the amount of the agreed-upon salary for the unexpired term of his employment minus what he could earn by making diligent efforts to obtain similar work. ABC has no way of knowing, absent DeNardo providing it, the salary information necessary to litigate or settle the issue of damages. Therefore, despite ABC possibly having some knowledge regarding where DeNardo was working shortly after he left ABC, DeNardo was required to provide the information ABC requested.

Because whether DeNardo obtained subsequent employment and because information involving that employment was relevant to any damages regarding his claim for breach of contract, ABC was prejudiced by his failure to provide the requested information.

d. DeNardo’s driver’s license

One of the alleged reasons for DeNardo’s termination was his failure to provide a copy of his driver’s license upon being hired by ABC, which claimed that driving RVs was a requirement of DeNardo’s employment. ABC thus argues that whether DeNardo had a valid driver’s license is at the very heart of this dispute. DeNardo claims this information is irrelevant because driving was not a requirement.

This factual dispute was not susceptible to resolution during the pretrial period when discovery occurs. But ABC was entitled to discovery of information pertinent to the claim so that it could prepare for the litigation. Had the ease proceeded to trial, and had the fact-finder concluded that a driver’s license was a requirement of the job, it would clearly have been important to know if De-Nardo possessed a license.

3. The sanction chosen was sufficiently related to DeNardo’s violation of the order.

“The trial court must be allowed to enforce its discovery orders with sanctions tailored to fit the circumstances.” “The test for the validity of a discovery sanction that dismisses claims or orders facts or issues to be taken as established under [Rule 37(b)(2) ] is whether these claims or issues are ‘elements of the dispute that cannot be determined on the merits without disclosure of the evidence the Court has ordered the party to produce.’ ” If the dismissed claims are unrelated to the information the party refuses to supply, the discovery sanction constitutes punishment and is impermissible.

The credibility of a party is relevant to the issue of how to interpret an oral contract. Evidence of DeNardo’s credibility, which could be influenced by information gained from prior residences, and prior employment, was highly relevant to the dismissed claims. And subsequent employment, as well as tax information, are relevant to the issue of damages. Because the information requested was directly relevant to the claims at issue, the dismissal sanction was sufficiently related to the violation.

4. A lesser sanction would not adequately protect the opposing party while deterring other discovery violations.

DeNardo claims Judge Joannides did not consider meaningful alternatives to the sanction of dismissal in her order as required by law. ABC contends that a lesser sanction in this instance would not have sufficed.

“While we have recognized that the trial court need not make detailed findings or examine every alternative remedy, we have held that litigation ending sanctions will not be upheld unless ‘the record clearly indicate^] a reasonable exploration of possible and meaningful alternatives to dismissal.’ ” A conclusory rejection of all sanctions short of dismissing an action does not suffice as a reasonable exploration of meaningful alternatives. “ ‘[A] party should not be barred from his or her day in court where an alternative remedy would suffice to make the adverse party whole.’ ” “[B]efore a court may impose litigation ending sanctions for discovery violations the record must clearly indicate a reasonable exploration of possible and meaningful alternatives to dismissal.”

In her order, Judge Joannides stated, “Lesser sanctions than dismissal have been attempted and have been unsuccessful. Plaintiffs violations are so numerous [that] sanctions other than dismissal will not adequately protect defendants.” We agree. No alternate remedy would serve to make ABC whole.

Prior to Judge Joannides taking over the case, Judge Shortell gave DeNardo ample chances to comply. First, he imposed a monetary sanction. Second, he issued a stay on proceedings. Each time, DeNardo responded with the same outright refusal. And finally, after DeNardo did not act within the sixty-day period allowed by the court, Judge Joannides granted ABC’s motion to dismiss.

DeNardo claims Judge Joannides did not consider lesser sanctions. At this point, though, she was not required to consider lesser sanctions. The record already indicated that lesser sanctions had been attempted unsuccessfully. DeNardo’s violations had become so egregious, Judge Joannides acted well within her discretion in determining that no lesser sanction would deter DeNardo from future violations.

B. The Imposition of Sanctions Did Not Deny DeNardo Any Constitutional Rights.

1. DeNardo’s due process rights were not violated by the dismissal of his complaint.

DeNardo claims that, because he was not afforded an opportunity to respond to the motion to dismiss, his due process rights were violated. ABC argues that De-Nardo was afforded full due process before his complaint was dismissed.

In Sandstrom & Sons, Inc. v. State, Sandstrom argued that the superior court’s dismissal of his complaint denied him due process because the superior court did not hold a dismissal hearing. We held that due process was properly afforded by the superi- or court’s warning to Sandstrom in advance that dismissal with prejudice would occur if Sandstrom did not comply with the discovery order. “This order afforded Sandstrom no.tice and an adequate opportunity to be heard on the dismissal issue.” In Sandstrom, the time between the court’s warning and the actual dismissal was almost two months. Similarly, DeNardo was given sixty days to comply with the court’s order, an order which also warned dismissal would be a consequence of noncompliance. Although De-Nardo requested an extension of time to respond on May 9, 2000, the superior court was within its discretion in denying the request, as the request stated that the need for additional time was for DeNardo to complete his own discovery, not to gather materials to comply with the court’s orders. DeNardo could have requested a hearing on the issue of whether dismissal was an appropriate sanction for his failure to comply. As in Sandstrom, however, no such hearing was requested.

Because the superior court adequately warned DeNardo dismissal would occur if the court’s order was not complied with, DeNar-do’s right to due process was not violated by the dismissal of his complaint.

2. DeNardo’s right to a trial by jury was not violated.

The Alaska Constitution guarantees the right to jury trial. “The Alaska Constitution, however, preserves the right to a jury trial in civil cases only to the ‘same extent it existed at common law.’ ” In Christensen, Christensen argued that his right to a jury trial was violated by the court’s grant of summary judgment. But we held that because a trial court had the right at common law to remove factual issues from the jury’s consideration where there was insufficient evidence to raise a question of fact for the jury, a party’s right to a jury trial could only be violated by a summary judgment motion when it was improperly granted.

A party willfully refusing to comply with a discovery order risks ultimate loss of its case, whether through dismissal (if the recalcitrant party is the plaintiff) or imposition of liability (if the non-complying party is the defendant).

Because DeNardo was given adequate notice that he risked dismissal if he continued to violate the superior court’s discovery order, dismissal did not violate his right to a jury trial.

C. DeNardo Failed to Show that Alaska Rules of Civil Procedure 11, 26, 34, 37, and 56 Are Unconstitutional.

“The burden is on the party who challenges a statute or rule on constitutional grounds to demonstrate unconstitutionality, for there is a presumption of constitutionality which attaches to such enactments.” De-Nardo claims Rules 11, 26, 34, and 37 of the Alaska Rules of Civil Procedure are unconstitutional. However, he makes no mention of these rules after his statement of issues. DeNardo therefore does not meet his burden to rebut the presumption of constitutionality that the rules enjoy.

DeNardo claims Rule 56 is unconstitutional. But his lawsuit was -dismissed on a motion to dismiss, not a Rule 56 motion for summary judgment. For this reason, and because his briefing is so cursory as to constitute a waiver of the argument, we reject this claim.

D. The Information Requested by ABC Does Not Violate DeNardo’s Constitutional Right to Privacy.

“The right to privacy is not absolute; it protects ‘intimate’ or ‘sensitive personal information ... which, if disclosed even to a friend, could cause embarrassment or anxiety.’ ” But it does not shield a party who brings a lawsuit from having to reveal information that' is relevant to his or her claims, even though the information may otherwise be.private.

Moreover, the information at issue here is background information routinely requested in civil litigation. Although DeNar-do claims his tax returns are not relevant, they provide evidence of his earning potential, information useful in any damages determination. DeNardo has no privacy defense to the discovery information relevant to the lawsuit he instituted.

V. CONCLUSION

DeNardo willfully disobeyed court orders regarding discovery. Therefore, the superior court decision dismissing his complaint for his repeated failure to comply with those orders is AFFIRMED.

      . Hikita v. Nichiro Gyogyo Kaisha, Ltd.., 12 P.3d 1169, 1175 (Alaska 2000) (quoting 7 James Wm. Moore et al., Moore’s Federal Practice § 37.90, at 37-141 (3d ed.1997)) (alteration in original).

      . Coffland v. Coffland, 4 P.3d 317, 320 (Alaska 2000).

      . Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998).

      . Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska 1999).

      . Coffland, 4 P.3d at 320.

      . Peter, 986 P.2d at 867 (internal citations omitted).

      . Id.

      . Hughes v. Bobich, 875 P.2d 749, 752 (Alaska 1994).

      . Id. (quoting Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647 (Alaska 1992)).

      .Alaska R. Civ. P. 37(b)(3); Hughes, 875 P.2d at 753.

      . Hawes Firearms Co. v. Edwards, 634 P.2d 377, 378 (Alaska 1981).

      . 12 P.3d 1169, 1175 (Alaska 2001).

      . Id.

      . 875 P.2d 749 (Alaska 1994).

      . Id. at 753.

      . In granting the motion to compel, the superi- or court implicitly affirmed the likelihood that the answers or documents will lead to the discovery of admissible evidence. Alaska R. Civ. P. 26(b).

      . Coffland v. Coffland, 4 P.3d 317, 321 (Alaska 2000).

      . Hughes, 875 P.2d at 753.

      . See, e.g., Coffland, 4 P.3d at 320-21 (Alaska 2000) (holding that sanctions were proper after husband failed to answer any interrogatories, failed to timely file witness list, and failed to timely provide information for valuation of family business); Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489, 492-93 (Alaska 1988) (affirming declaration of liability for various discovery violations against party after oral and written warnings, extended deadlines, and less drastic sanctions were imposed).

      .ABC, however, does argue against the application of a more lenient standard to DeNardo as a result of his pro se status.

      . 4 P.3d 317 (Alaska 2000).

      . Id. at 321.

      . See Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 490 (Alaska 1975) (holding that oral contacts are, "by their very nature, dependent upon an understanding of the surrounding circumstances, the intent of the parties, and the credibility of witnesses.”).

      . Id.

      . Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 354 (Alaska 1987).

      . DeNardo v. GCI Communication Corp., 983 P.2d 1288, 1290 (Alaska 1999) (quoting Ben Lomond, Inc. v. Schwartz, 915 P.2d 632, 636 (Alaska 1996)).

      . Guard v. P & R Enterprises, Inc., 631 P.2d 1068, 1071 (Alaska 1981).

      . City of Fairbanks v. Rice, 20 P.3d 1097, 1111 (Alaska 2000).

      . Rohweder v. Fleetwood Homes of Oregon, Inc., 767 P.2d 187, 191 (Alaska 1989).

      . Hazen v. Municipality of Anchorage, 718 P.2d 456, 460 (Alaska 1986) (quoting Bachner v. Pearson, 479 P.2d 319, 324 (Alaska 1970)).

      . Id.

      . Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486, 490 (Alaska 1975).

      . Hughes v. Bobich, 875 P.2d 749, 753 (Alaska 1994) (alteration in original) (quoting Power Constructors, Inc. v. Acres Am., 811 P.2d 1052, 1055 (Alaska 1991)).

      . Id.

      . Sandstrom & Sons, Inc. v. State, 843 P.2d 645, 647 (Alaska 1992) (quoting Power Constructors, Inc., 811 P.2d at 1055 (remanding dismissal of lawsuit for reasonable exploration of alternate sanction to dismissal where no evidence existed on record of such exploration prior to dismissal)).

      . Underwriters at Lloyd’s London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993).

      . 843 P.2d 645 (Alaska 1992).

      . Id. at 648.

      . Id.

      . Id.

      . Alaska Const, art. I § 16.

      . Christensen v. NCH Corp., 956 P.2d 468, 477 (Alaska 1998) (quoting Alaska Const, art. I, § 16).

      . Id.

      . Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350 (Alaska 1987).

      . Honda Motor Co., Ltd. v. Salzman, 751 P.2d 489 (Alaska 1988).

      . A. Fred Miller Attorneys at Law, P.C. v. Purvis, 921 P.2d 610, 618 (Alaska 1996).

      . A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (arguments given only cursory treatment in briefing are considered waived on appeal).

      . Int’l Ass'n of Fire Fighters, Local 1264 v. Municipality of Anchorage, 973 P.2d 1132, 1134 (Alaska 1999) (alterations in original) (quoting Doe v. Alasita Superior Court, Third Judicial Dist., 721 P.2d 617, 629 (Alaska 1986)).

      . See, e.g., Langdon v. Champion, 745 P.2d 1371, 1372-73 (Alaska 1987) (restating rule that commencement of action for personal injuries constitutes plaintiff's waiver of physician-patient privilege); Trans-World Investments v. Drobny, 554 P.2d 1148, 1151 (Alaska 1976) (holding “that the filing of a personal injury action waives the physician-patient privilege as to all information concerning the health and medical history relevant to the matters which the plaintiff has put in issue.”).

      .DeNardo’s claims that the superior court erred in denying his discovery motions are moot: Because we affirm the dismissal of DeNardo’s complaint, even resolving his claims in his favor would provide him no relief. "A claim is moot 'if the party bringing the action would not be entitled to any relief even if they prevail[ed].' " Nickels v. Napolilli, 29 P.3d 242, 254, n. 60 (Alaska 2001) (alterations in original) (quoting Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n. 2 (Alaska 1995)).


author: EASTAUGH, Justice.

text:
    UNITED AIRLINES, INC., Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.
    No. S-9672.
    Supreme Court of Alaska.
    July 26, 2002.

      See also, 939 P.2d 788 and 944 P.2d 453.
    William F. Brattain II, Baker Brattain, LLC, Anchorage, for Appellant.
    Rod R. Sisson, Sisson & Knutson, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Adrian Sanders sued the State of Alaska and United Airlines, Inc. (UAL) for injuries he suffered when his motorcycle struck a UAL baggage cart train. The baggage train originated from premises subleased to UAL. The state had leased the premises to the Krogstads, who had subleased them to UAL. Does the Krogstad/UAL sublease require UAL to indemnify and hold harmless the Krogstads and their subrogated liability insurer, State Farm, against claims arising from Sanders’s injuries? Because Sanders’s claims against the state and the state’s claim against the Krogstads were “in connection with ... personal injury arising from or out of any occurrence” at UAL’s subleased premises “or from [UAL’s] use” of those premises, the sublease required UAL to indemnify the Krogstads’ insurer for amounts the insurer paid to discharge Sanders’s claims. We therefore affirm the superior court’s grant of summary judgment against UAL.

II. FACTS AND PROCEEDINGS

The present appeal arises out of Adrian Sanders’s July 1992 motorcycle accident. We addressed legal disputes resulting from the accident on two prior occasions. Sanders was riding his motorcycle on Old International Airport Road in Anchorage when he struck the rear of a slow-moving baggage train comprised of a baggage tug and five baggage carts. The accident occurred near Anchorage International Airport, a facility operated by the State of Alaska. The state condoned UAL’s practice of operating baggage trains on the road without warning lights. When the accident occurred UAL was transporting cargo to the airport ramp area from nearby property it leased from Rebecca Fox-Krogstad and Sam Krogstad. The Krogstads leased the property from the state and subleased it to UAL.

The state informed the Krogstads in July 1993 that the state had received a letter from Sanders threatening litigation. The state told them it expected the Krogstads to indemnify and defend the state against Sanders’s claims. The Krogstads’ potential liability to the state arose from the lease agreement between the Krogstads, as lessee, and the state, as lessor; we refer to this agreement as the state/Krogstad lease. In an August 1993 letter the Krogstads informed UAL of the state’s claim against the Krog-stads, and invoked UAL’s “obligations to ‘indemnify, defend and hold [the Krogstads] harmless’ for and from any claim, loss, liability, and expense ... arising out of [Sanders’s accident].” UAL’s potential liability to the Krogstads arose from the sublease between UAL, as lessee, and the Krogstads, as lessor; we refer to this agreement as the Krog-stad/UAL sublease. UAL rejected the Krogstads’ tender.

The Krogstads also informed State Farm, their insurer, of Sanders’s potential claim against the state and the state’s potential claim against the Krogstads. State Farm acknowledged that the Krogstads’ insurance policy covered claims arising from Sanders’s accident, but expressed its belief that UAL was the proper party to handle the investigation and potential claims.

Sanders filed a complaint against UAL, the state, and others in June 1994. The complaint alleged a number of causes of action against the state, including negligence, defective product or systems, negligent design of the roadway system, and breach of duties owed by a landlord to a tenant. As an insured under the Krogstads’ State Farm policy, the state tendered its defense and demand for indemnity to State Farm. State Farm rejected the state’s tender, reasoning that the policy did not cover Sanders’s claims. State Farm later agreed to defend the state subject to a reservation of rights to disclaim coverage.

The state filed a third-party complaint in October 1996 against the Krogstads based on the indemnity provision of the state/Krogstad lease. The complaint claimed that the indemnity provision covered any damages awarded against the state arising out of Sanders’s complaint, including all expenses incurred by the state in defending itself. Invoking the terms of the Krogstad/UAL sublease, the Krogstads then asked UAL to indemnify and defend them against the state’s claims. UAL again rejected the Krogstads’ tender.

We held in May 1997 that State Farm had a duty to defend the state because the accident arose out of the use of the leased premises for their authorized purpose. The Krogstads sought judgment in November 1997 requiring UAL to pay for the Krog-stads’ defense against the state’s third-party complaint. The state resolved its third-party claim in April 1998 following our decisions in State, Department of Transportation v. State Farm; and State, Department of Transportation v. Sanders. Sanders settled with the state on April 21, 1998 for $2.09 million. On the same date the state released, upon receipt of $1.77 million, the Krogstads and their insurers from any third-party liability related to Sanders’s accident and the resulting litigation. State Farm paid the $1.77 million. UAL settled with Sanders for $2,275,000.

The superior court permitted State Farm to substitute for the Krogstads in their complaint against UAL in June. 1998. State Farm’s fourth-party complaint stated that “UAL is liable under the [Krogstad/UAL sublease] for the $1,770,000 paid to the State by State Farm to settle the State’s third-party complaint against the Krogstads ... [and] for all fees and costs incurred by State Farm in defending the Krogstads against the State’s third-party complaint.” UAL moved and State Farm cross-moved for summary judgment. The superior court denied UAL’s summary judgment motion and granted State Farm’s cross-motion in February 2000. Final judgment was entered for State Farm in April 2000 for: $1.77 million, representing the settlement amount between the Krog-stads and the state; $31,641.01, representing the reasonable attorney’s fees and costs State Farm incurred in the summary judgment proceedings against UAL; and $31,954.55, representing the reasonable attorney’s fees and costs the Krogstads incurred in defending against the state’s third-party claim.

UAL appeals.

III. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo. A summary judgment movant must establish that there “are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” We will draw all reasonable factual inferences in favor of UAL, the party opposing summary judgment. But “[w]hen there is no dispute about the factual circumstances surrounding [a] contract, the interpretation of an indemnity provision presents a question of law.”

B. The Superior Court Did Not Err in Granting Summary Judgment to State Farm.

1. The plain language of the indemnity clause in the Krogstad/UAL sublease requires UAL to indemnify and defend the Krogstads against the state’s third-party claim.

UAL argues that the indemnity provision, section 7.5(b) of the Krogstad/UAL sublease, does not require it to indemnify or defend the Krogstads against the state’s third-party claim. The provision requires UAL to indemnify the Krogstads “from all suits, actions, damages, liability, and expenses in connection with ... personal injury ... arising from or out of any occurrence at the Premises, or from the use by [UAL] ... of the Premises_” (Emphasis added.) UAL argues that the Krogstads’ potential liability — on a claim asserted by Sanders against the state and tendered to the Krog-stads for defense and indemnity — did not “aris[e] from or out of’ any occurrence at or UAL’s use of the premises. We are unpersuaded. The state’s third-party complaint against the Krogstads clearly arose from UAL’s operation of the baggage cart in connection with UAL’s use of the premises subleased to UAL by the Krogstads.

UAL argues that the indemnity provision of the state/Krogstad lease is broader than that of the Krogstad/UAL sublease because “the Krogstads contracted to indemnify the State for any and all claims related to the property, even for the State’s own negligence. UAL assumed no such broad obligations to the Krogstads.” UAL is correct that it owes the Krogstads no duty to indemnify them for their own negligence. But the Krogstads’ liability to the state was not due to the Krogstads’ negligence.

UAL also argues that the term “Lessor” in section 7.5(b) of the Krogstad/UAL sublease includes the state. The relevant portion of section 7.5(b) exempts UAL from liability “caused by the negligence of Lessor, its agents, contractors, employees, servants, invitees, or licensees.” UAL states in a parenthetical comment in its brief that this passage includes “the Krogstads and the Krog-stad[s’] lessor-the State of Alaska....” This reading would excuse UAL from its indemnity duty, but we reject UAL’s interpretation. The Krogstad/UAL sublease clearly defines “Lessor” to be Sam and Rebecca Fox-Krog-stad. There is no support in the record for UAL’s interpretation of the term “Lessor.” And UAL’s interpretation is at odds with the plain meaning of the term “Lessor” as it appears in the Krogstad/UAL sublease.

2. The facts of this case do not require us to address UAL’s status as an insurer or non-insurer.

UAL urges us not to treat it as an insurer. It argues that insurance contracts can and often are construed as contracts of adhesion, while commercial leases and commercial contractual indemnity provisions are seldom construed in this manner. UAL correctly notes that commercial leases frequently do not involve parties in “disparate bargaining positions,” as is often the case with insurance contracts. But the fact that UAL and the Krogstads are both sophisticated parties does not assist UAL’s claim that the state’s third-party claim falls outside the coverage of the Krogstad/UAL sublease. Indeed, to the extent the two parties are sophisticated commercial entities, UAL could reasonably expect the broad indemnity provision of section 7.5(b) of the sublease to cover claims exactly like this one — i.e., claims arising out of UAL’s routine, authorized use of the premises.

Furthermore, section 13 of the Krog-stad/UAL sublease gave UAL notice of the Krogstads’ relationship with the state and the duties the Krogstads undertook to the state: “[UAL] hereby accepts the Premises subject to the terms and provisions of the prime lease between the State of Alaska and the [Krogstads].” The sublease UAL signed with the Krogstads contained undertakings equivalent to those undertaken by the Krog-stads to the state. UAL could reasonably expect that it faced potential liability arising from the Krogstads’ contractual relationship with the state.

Finally, we have stated that “the cost of insurance to cover indemnification” can be incorporated into the costs of conducting business. Any uncertainty relating to UAL’s potential liability due to the indemnity clause should properly have been reflected in the price UAL paid to sublease the premises. In any event, we do not need to treat UAL as an insurer to give reasonable effect to the plain language of the Krogstad/UAL indemnity clause.

UAL also urges us not to treat its obligation under the Krogstad/UAL sublease as we might treat the obligation of a similarly situated insurer. We have held that “where an insurer breaches its contract, it is liable for the amount of a reasonable settlement reached by the insured which falls within the coverage provided by the policy.” UAL cites Rogers & Babler, Division of MARCO Alaska v. State in arguing that this court has not imposed such “penalties]” on non-insurers, particularly under simple indemnity agreements. But MARCO does not require us to determine whether the indemnity clause puts UAL in the position of an insurer. In the MAPCO passage UAL cites, we were primarily addressing whether an indemnity clause stating that “[t]he contractor shall indemnify and save harmless [the indemnitee]” also implied a duty to defend. We held that it did not and that nothing else in the clause suggested that it did. We did not address issues relating to treating non-insurers as insurers.

In any event, the plain language of the Krogstad/UAL sublease imposes duties on UAL with respect to lawsuits arising from its use of the premises. Because UAL could reasonably expect to cover under the Krog-stad/UAL sublease the state’s third-party claim against the Krogstads, there is no need to consider whether an indemnity clause issued by a commercial non-insurer should be given the same interpretation as an indemnity clause issued by an insurer. Our determination that UAL’s liability extends to the state’s third-party claim against the Krog-stads turns on interpretation of the plain language of the indemnity clause of the sublease. It does not, as UAL argues, require all future “contractual indemnitors, in all commercial settings, [to] become insurers.”

3. UAL’s remaining arguments do not require us to reverse the superior court’s grant of summary judgment to State Farm.

UAL argues that State Farm would have no subrogation claim against UAL had State Farm not breached duties it owed to the state. UAL cites Alyeska Pipeline Service Co. v. H.C. Price Co. as support for the proposition that the remedy for breach of contract is to place the non-breaching party in the same legal position it would have occupied but for the breach. Alyeska differs from the current dispute because the party bringing suit in Alyeska was a party to the contract. UAL is simply a third party requesting relief for an alleged breach of an agreement — the State Farm insurance policy covering the state — to which UAL is not a party. It cannot rely on any breach of duty State Farm owed the state. Because the State Farm policy covering the state and the Krogstads imposed no duty benefitting UAL, any possible breach by State Farm is irrelevant to UAL’s duties to the Krogstads.

UAL further argues that it should only be forced to pay some pro rata share of the indemnity and defense obligation and that UAL and State Farm were “joint insurers.” The plain language of section 7.5(b) of the Krogstad/UAL sublease dooms these arguments. The Krogstads were contractually required to indemnify the state for losses arising from UAL’s use of the subleased premises, and the Krogstads simply transferred that Lability to UAL via the sublease indemnity clause. The settlement paid by State Farm arose out of UAL’s use of the premises. UAL’s obligation to indemnify the Krogstads under the indemnity clause does not depend on State Farm’s actions as the state’s or the Krogstads’ insurer.

In its reply brief UAL questions the reasonableness of the settlement. The issue was not before the superior court and is therefore not now properly before us.

IV. CONCLUSION

Because we hold that the plain language of the indemnity clause requires UAL to indemnify the Krogstads, we AFFIRM the superi- or court’s final judgment in favor of State Farm.

      . State, Dep't of Transp. v. State Farm (State Farm I), 939 P.2d 788 (Alaska 1997); State, Dep't of Transp. v. Sanders, 944 P.2d 453 (Alaska 1997).

      . State Farm I, 939 P.2d at 789.

      . Sanders, 944 P.2d at 455 & n. 1.

      . State Farm I, 939 P.2d at 789.

      . State Farm I, 939 P.2d at 789-90.

      . Id. at 789.

      . Section 16 of the state/Krogstad lease required the Krogstads to indemnify tire state for liability relating to the leased property:
      The [Krogstads] shall indemnify, defend, and hold the [state] harmless from any liability, action, claim, suit, loss, property damage, or personal injury of whatever kind resulting from or arising out of any act of commission or omission by the [Krogstads], [their] agents, employees, or customers or arising from or connected with the [Krogstads'] use and occupation of the Premises or the exercise of the rights and privileges granted by this lease. Section 17 of the state/Krogstad lease obliged the Krogstads to obtain insurance to protect the state and the Krogstads:
      (a) At no expense to the [state], the [Krogstads] shall secure and keep in force during the term of this lease adequate insurance to protect both the [state] and the [Krogstads] against comprehensive public liability and property damage in no less than the following amounts: (i) Property damage arising from one occurrence in the amount of not less than $50,000. (ii) Personal injury or death in an amount of not less than $100,000 per person and $300,000 per occurrence .... (b) ... All insurance required by this covenant must ... (iii) include a waiver of subrogation by which the insurer waives all rights of subrogation against the [state] for payments made under the policy.

      .Section 7.1 of the sublease sets out UAL’s obligation to acquire insurance and to include the Krogstads as an additional insured.
      At no expense to [the Krogstads], [UAL] shall obtain and keep in force and effect during the term of this Lease, a policy of comprehensive public liability insurance insuring [UAL] against any liability arising out of the ownership, use, occupancy, or maintenance of the Premises and all areas appurtenant thereto, and naming [the Krogstads] as an additional insured to the extent of the liability assumed by [UAL] under Paragraph 7.5 herein. Such insurance shall be in an amount of not less than $500,000 for injury to or death of one person in any one accident or occurrence and in an amount of not less than $1,000,000 for injury to or death of more than one person in any one accident or occurrence. Such insurance shall further insure [UAL] against liability for property damage of at least $100,000. The limits of said insurance shall not, however, limit the liability of [UAL] hereunder. If [UAL] shall fail to procure and maintain said insurance, [the Krogstads] may, but shall not be required to, procure and maintain the same at the expense of [UAL],
      Section 7.5(b) of the sublease sets out UAL's duty to indemnify for injuiy or property loss:

        [UAL] shall indemnify, defend, and hold harmless [the Krogstads] from all suits, actions, damages, liability, and expenses in connection with loss of life, bodily or personal injury, or property damage arising from or out of any occurrence at the Premises, or from the use by [UAL] or [UAL's] agents, contractors, employees, servants, invitees, or licensees of the Premises and the Complex including, but not limited to, sidewalks, common areas, and facilities within the Complex, unless caused by the negligence of [the Krogstads], [their] agents, contractors, employees, servants, invitees, or licensees.

      . State Farm I, 939 P.2d at 793.

      . Id.

      . 939 P.2d 788 (Alaska 1997).

      . 944 P.2d 453 (Alaska 1997).

      . The state also paid $110,000 to Sanders’s minor son.

      . State Farm I, 939 P.2d at 790 (citation omitted).

      . Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1134 (Alaska 1996) (citing Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) (citation omitted)).

      . Id. (citation omitted).

      . Duty Free Shoppers Group Ltd. v. State, 777 P.2d 649, 652 (Alaska 1989) (citation omitted).

      . See supra note 8.

      . Id.

      . The relevant provision is section 1 of the Krogstad/UAL sublease:
      PARTIES. This lease ... is made by and between SAM KROGSTAD and REBECCA FOX-KROGSTAD, as husband and wife ("Lessor") and UNITED AIRLINES ("Lessee”).
      UAL does not argue, and the record does not establish, that the contract language "agents, contractors, employees, servants, invitees or licensees” applies to the state.

      . Bering Strait Sch. Dist. v. RLI Ins. Co., 873 P.2d 1292, 1294-95 (Alaska 1994).

      . UAL's vice president of airport affairs signed the Krogstad/UAL sublease.

      . Manson-Osberg Co. v. State, 552 P.2d 654, 659 (Alaska 1976) (giving effect to plain language of indemnity clause as "reasonably construed” in commercial cases because insurance is increasingly used as means of allocating risk); see also Burgess Const. Co. v. State, 614 P.2d 1380, 1383 (Alaska 1980) (holding anticipated costs of obtaining insurance to cover indemnification included as part of bid on project); but cf. Kissick v. Schmierer, 816 P.2d 188, 191 n. 4 (Alaska 1991) (refusing to adopt unambiguous-language-of-an-indemnity-clause-as-reasonably-construed approach for non-commercial setting because non-commercial cases are distinguishable: for example, commercial entities are usually in essentially equal bargaining positions, unlike noncommercial entities; also, commercial entities can incoiporate cost of insurance to cover indemnification).

      . Manson-Osberg, 552 P.2d at 659.

      . E.g., C.P. ex rel. M.L. v. Allstate Ins. Co., 996 P.2d 1216, 1222 (Alaska 2000) ("[W]here a clause in an insurance policy is ambiguous in the sense that it is reasonably susceptible to more than one interpretation, we accept the interpretation that most favors the insured.”).

      . Grace v. Ins. Co. of N. Am., 944 P.2d 460, 464 n. 7 (Alaska 1997) (citing Afcan v. Mut. Fire, Marine & Inland Ins. Co., 595 P.2d 638, 646-47 (Alaska 1979)).

      . 713 P.2d 795, 800 n. 4 (Alaska 1986) (reasoning that because contractual indemnitor had no duty to defend in that case, court need not reach issue whether contractual indemnitor was liable for whole settlement where it refused to tender defense).

      . Id. at 800.

      . Id. at 799-800.

      . In addition, nowhere in MAPCO were we called upon to decide whether to treat non-insurers as insurers. See id. at 800 n. 4 (declining specifically to address this issue in context of liability flowing from breach of duty to defend).

      . 694 P.2d 782, 787 (Alaska 1985) (citations omitted).

      . Id. at 784.

      . Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997) (citation omitted).