author: CARPENETI, Justice.

text:
    Ralph COLLINS, Cornelia Collins, Ronald Collins, and Eric W. Collins, Appellants, v. Andrew BLAIR, Trina M. Blair, Ricky Blair, and F/V Predator, Inc., Appellees.
    No. S-9810.
    Supreme Court of Alaska.
    Aug. 9, 2002.
    Rehearing Denied May 20, 2003.

      Melvin M. Stephens, II, Kodiak, for Appellants.
    Paul D. Kelly, Kelly & Patterson, Anchorage, for Appellees.

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

CARPENETI, Justice.

I. INTRODUCTION

Andy Blair and Ralph Collins began their business relationship in 1987 when Blair chartered Collins's boat. Blair bought the boat two years later, along with an undetermined interest in prospective fishing rights. A dispute over these fishing rights arose in 1994 and the parties entered into a joint venture, forming a closely held corporation. After more problems with fishing rights and a general deterioration in the relationship, Blair petitioned the court for an involuntary dissolution of the corporation. The court dissolved the corporation and ordered a distribution of assets that followed a proposal submitted by Blair. Collins appeals from this order. Because the trial court's factual findings are not clearly erroneous, we affirm the order of dissolution. However, because Blair used corporate funds to pay both corporate and personal legal bills, we reverse the superior court's order awarding attorney's fees and remand for an allocation between corporate and personal services.

II FACTS AND PROCEEDINGS

A. Facts

In 1987 Andy Blair chartered the F/V Minky Way from Ralph Collins. Included in the charter was an option to purchase the vessel (option agreement). Paragraph 21 of the option provided for the transfer of fishing rights for halibut and/or black cod (sablefish) if a limited entry permit system were instituted by federal authorities. In 1989, when Blair purchased the F/V Minky Way from Collins, the purchase agreement referred to the option agreement as being the entire agreement of the parties, regardless of any collateral, prior, or contemporaneous agreements.

In 1995 the federal government adopted a program to regulate the halibut and black cod fisheries in Alaska through an Individual Fishing Quota (IFQ) system. To implement the IFQ program, applications were sent to each vessel owner or charterer who had a fishing history in the qualified fisheries for each of the years 1984 through 1990. Blair received an application for the F/V Miky Way for the years 1988 to 1990. Collins received an application for the F/V Minky Way that covered the years 1984 through 1987. The National Marine Fisheries Service (NMFS) awarded IFQs based on the F/V Mirzy Way's catch to Blair (based on his catch from 1988 to 1990) and to Collins (based on his catch from 1984 to 1987).

As paragraph 21 of the option agreement provided for the transfer of the F/V Minky Way's fishing rights, the court found at trial that there was conflict between Blair and Collins over the pre-1988 quota shares allocated to the F/V Miiky Way under the IFQ program. Blair contacted attorney Joe Sullivan to determine the best way to recover the pre-1988 shares to which he felt he was entitled. Sullivan suggested that, rather than contest his claim through expensive litigation, Blair pursue a joint venture with Collins.

In 1994 Blair and Collins entered into an agreement to begin a joint venture. The agreement, an intent to purchase drafted and signed without counsel, stated that Collins intended to purchase a 50% interest in the F/V Mixy Way and that Collins and Blair were to combine their halibut and sablefish shares. The parties approached attorney Sullivan to prepare the paperwork to implement their joint fishing venture. They chose to do this through F/V PrEDAror, Inc. (the corporation), a corporation previously formed by Collins that was eligible to hold IFQs. The corporation was chosen because the IFQ regulations required that IFQ transfers be made only to an entity that existed during the qualifying period, and the corporation met this requirement. Collins represented that the F/V PrEepator (a fishing boat, not the corporation) had companion fished with the F/V Miky Way. The boats' quota shares, Collins maintained, would therefore be about equal.

Blair agreed to transfer his post-1988 F/V Mirxky Way shares to the corporation. Collins had F/V Prepator shares that he was going to issue to the corporation. Neither party specified how many shares he would contribute. After the corporation received a loan from the bank, Collins purchased a 50% interest in the F/V Miky Way and the accompanying fishing rights. The F/V Micky War was then transferred to the newly-formed corporation.

Blair never transferred his F/V Minky Way quota shares to the corporation due to a dispute with NMFS over the division of shares between his catch on the F/V Minky Way and his catch on his other boat. Blair did, however, fish his F/V Miky Way shares on the F/V Minky Way in 1995 and deposited all proceeds into the corporation's bank account.

When Collins had his F/V PREDATOR shares issued to the corporation, he became ineligible to personally receive other quota shares (the lost shares) to which he would have been entitled. After talking with NMFS about a way to rectify the situation, Collins transferred to himself personally the F/V Prepator shares that had been issued to the corporation. NMFS then issued Collins his lost shares. Collins apprised Blair of his actions and gave him the F/V PrEDaTOR shares to fish on the F/V Miuky Way. Although Blair fished the F/V PrEpnaAtor shares in 1995, he had Sullivan contact Collins on behalf of the corporation and himself requesting that Collins return to the corporation the shares Collins had withdrawn. Sullivan eventually forced the transfer of Collins's shares back to the corporation. Upon the return of the shares to the corporation, NMFS revoked Colling's lost shares.

B. Proceedings

In September 1996 Blair filed suit in superior court alleging that Collins's action in withdrawing the F/V shares from the corporation was a breach of Collins's fiduciary duty. He requested an accounting and reimbursement and asked the court to dissolve the corporation under Alaska law. Collins counterclaimed alleging that Blair violated his fiduciary duty by failing to contribute his F/V Micky Way shares to the corporation. Collins also petitioned the court for a recision of the option and intent to purchase agreements entered into by Blair and Collins and the return of all assets Collins contributed to the corporation.

Because the case involved issues of dissolution and liquidation of a closely held corporation-issues that were complicated by IFQ contributions-a special master was appointed. In June 1998 Special Master Gregory L. White, a certified public accountant, prepared a report that reviewed transactions, rendered an accounting, and recommended alternate methods for dissolution, sale, or liquidation of the corporation.

In making his recommendations on the division of assets, Special Master White made several findings of fact. Most importantly, he found that neither the intent to purchase agreement nor the actual purchase of the F/V Mixy Way constituted a settlement of any claims of the parties. Although Blair's 1987 option agreement and 1989 purchase of the F/V Minky Way may have resulted in his acquiring the quota shares generated by Collins's fishing on the F/V Minky Way prior to 1988, the special master found that the joint venture was not entered into in order to settle Blair's claims to Collins's F/V Micky Way shares.

Special Master White also found that Blair had an obligation to contribute approximately 50,000 pounds of halibut shares to the corporation and that Collins did not agree to contribute additional shares to make up the difference between the pre-1988 F/V Minky Way shares and the F/V PrEpator shares actually contributed to the corporation. The special master then recommended that Blair's interest be redeemed by distributing certain assets of the corporation, including the F/V Mity Way and all its fishing rights, and that Collins be allowed to retain 100% of the stock of the corporation, including most of the fishing rights arising from the operation of the F/V PrEparor. The report also recommended that Blair be charged for his personal legal and professional fees that had been paid by corporate funds.

In May 1999 Superior Court Judge Michael L. Wolverton issued a decision and order dissolving the corporation. The court found that paragraph 21 of the option agreement (calling for the assignment of all fishing rights to Blair if a limited entry fishing permit system was instituted) indicated that the assignment of rights was "part and parcel of the purchase price of the vessel." The court found that when NMFS began allocating quota shares, Collins "flaunted" the fact that he had been awarded shares for his fishing of the F/V Mixy Way prior to the boat's lease and sale to Blair, which shares Blair thought he was entitled to under the option and purchase agreements.

The court found that Blair, rather than approaching Collins in a confrontational manner and asking for a formal settlement, proposed the joint venture as an informal settlement of the rightful ownership of the pre-1988 F/V Muy Way fishing rights. After trial the court found that Blair had proven his version of the facts by a preponderance of the evidence and that his proposed distribution of the assets was the most equitable.

The court found that neither Blair nor Sullivan acted improperly in obtaining for the corporation the F/V Prepator shares withdrawn by Collins, and that, because Blair had not acted improperly, he should not be charged for the legal fees paid by the corporation. The court also found that Collins had to account for the difference between the F/V Micky Way shares pledged to the corporation and the F/V Prepator shares actually contributed.

As for the dissolution, the court agreed with the master's recommendation that an equitable distribution was warranted. The court adopted Blair's proposal for the liquidation of the corporate assets and adopted all of the master's recommendations for adjustments to the corporate books, with the exception of the legal fees charged to the corporation by Blair. After the final master's report was issued and adopted and judgment entered, the court awarded Blair attorney's fees pursuant to Alaska Rule of Civil Procedure 82(b)(2), increasing the award under Rule 82(b)(8) because of the complexity of the issues, laws, and facts in the case and Collins's unjustified violations of his fiduciary duties.

Collins appeals from this order and award.

III STANDARD OF REVIEW

We accept a superior court's findings of fact unless they are clearly erroneous. A finding of fact is clearly erroneous "if it leaves [us] with a definite and firm conviction on the entire record that a mistake has been made."

Interpretation of a contract is a question of law. However, where extrinsic evidence is presented by the parties to clarify a contract's meaning, that evidence points to conflicting interpretations of the contract, and the contract is reasonably susceptible to either meaning, the proper interpretation of the contract becomes a question for the trier of fact. When an appellant challenges the trial court's findings relating to the intent and actions of the parties, we review those findings under a clearly erroneous standard.

We review an award of attorney's fees under an abuse of discretion standard. A superior court abuses its discretion "when, after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling."

IV. DISCUSSION

A. The Superior Court's Factual Findings Are Supported by the Evidence and Are Therefore Not Clearly Erroneous.

In arguing that the trial court erred in setting aside or ignoring the master's factual findings, Collins argues that the trial court erred in substituting its own factual findings for that of the master. Blair responds that whether the trial court made clearly erroneous findings was waived by Collins, in that Collins only challenged the trial court's setting aside of the master's findings, not the trial court's own factual findings. Collins counters by stating that if the trial court is allowed to disregard the master's findings, Judge Wolverton's findings must then be reviewed for clear error. Blair's waiver argument is unpersuasive. Collings specifically mentions in his brief that one of the trial court's findings was without evidentiary support and indicates in each instance where he argued that the trial court erred in setting aside the master's findings that he was also challenging the trial court's findings. Accordingly, he did not waive his challenges to Judge Wolverton's factual findings.

The testimony at trial and during the master's depositions was conflicting. In making his factual findings, Judge Wolverton does not cite to the record. He did say, however, that he found Blair's version of the events that transpired between Blair and Collins to be more valid than Collins's version. When determining whether a trial court has made a clearly erroneous finding, "[dJue regard shall be given to the opportunity of a trial judge to weigh the credibility of witnesses." As to each of Collins's claims of erroneous findings, there is testimony to support Judge Wolverton's findings.

1. The intent to purchase agreement reflected a settlement of a dispute between Blair and Collins.

In rejecting the master's finding that the joint venture was not a settlement of the dispute over the pre-1988 F/V Minky Way shares, the superior court stated that "[hlowever denominated, the July, 1994 agreement had a legal force and effect which, de-facto, settled the claims between the parties."

Blair testified at trial he had paragraph 21 of the lease and option agreement put in so that he could guarantee his right to fish if a limited entry system were ever implemented. He stated that when he applied for his quota shares, he sent NMFS the option and purchase agreements. NMFS told Blair that they were not going to get involved in litigation over who was the proper owner of the pre-1988 F/V Minky Way shares and that Blair should contact an attorney. Blair then contacted attorney Sullivan, who told him that to contest the contract would take a great deal of time and money. Sullivan suggested that Blair try to work it out with Collins personally.

In setting up the joint venture, Blair stated that he thought the deal favored Collins because Blair was not going to try to exercise his rights under the option and purchase agreements. Under the agreement, Blair would get only 55% of the pre-1988 F/V Mirxky Way shares to which he felt he was entitled. Though Collins could get less than what he had put into the corporation, Blair felt that the agreement was fair in light of the option agreement. If, Blair testified, he had not gone through with the joint venture, he feared that he would have been caught up in litigation and therefore unable to fish. Blair stated that the 1994 intent to purchase was a settlement before there was an overt dispute between Collins and himself. Blair's description of the transactions between himself and Collins supports the trial court's finding that the intent to purchase was, in effect, a settlement.

2. Collins agreed to contribute additional shares in order to make up the difference in landings between the F/V Miky War and the F/V PrEpaTOrR.

The order issued by the superior court stated that the evidence showed that Collins represented that the F/V Prrpator shares could be substituted for the F/V Micky Waxy shares because Collins thought they were identical, While the superior court did not find that Collins intentionally misrepresented the amount of shares he was going to contribute, the fact that he was to contribute all of his F/V Minky Way shares meant that he would need to make up any difference that resulted from his substitution of the F/V PrEpator shares.

Blair testified that the corporation was entitled, under the agreement, to Colling's F/V Minky Way shares. Blair testified that the F/V Prepator shares were used because the F/V Miky Way shares could not be contributed to the corporation. The corporation was entitled to an amount equal to Collins's F/V Mirky Way shares.

3. Blair did not agree to contribute approximately 50,000 pounds of halibut shares to the joint venture.

The superior court's decision does not indicate how many pounds of halibut shares Blair was to contribute to the joint venture. The special master, on the other hand, found that, although not explicitly pointed out by the parties, it seemed "reasonable to expect" that Blair would contribute approximately 50,000 pounds.

Blair testified that when he and Collins were discussing the joint venture, they figured they would need about 100,000 pounds of halibut shares in order to succeed. He also stated that they did not discuss how much each party was going to contribute to the corporation. They never mentioned that each party would contribute 50,000 pounds. Rather, they were going to combine all of their shares together, as the intent to purchase agreement indicated. As Blair's shares were unclear due to the dispute with his other vessel, he could not know how many shares he had to contribute.

4. Collins's actions to recover his lost sablefish shares were wrongful.

The trial court found that Collins never explained to Blair or attorney Sullivan his reasoning behind his withdrawal of the pre-1988 F/V Way corporate assets. The court found that had Collins advised Blair or Sullivan of his intentions, the relationship between the parties would not have deteriorated.

The lost shares at issue are sablefish shares from 1986 and 1987 landings on the F/V Miky War. To qualify for sablefish shares, a person (defined as an individual or a corporation) must have owned or leased a vessel that caught sablefish with fixed gear during any quota share qualifying year, which for these shares would have been 1988, 1989, 1990, or part of 1991.

In his initial application, Collins asked that his quota share be allocated to the corporations that owned the F/V PrEDATor and the F/V Miky Way, that is, the F/V PREDATOR, Inc. and the F/V Mity Way, Inc., respectively. However, this prevented Collins from receiving the lost sablefish shares: F/V Pre-pator, Inc. could not receive those shares because it was not a successor in interest to the F/V Micky Way, Inc., and F/V Muky Way, Inc. could not receive the shares because it was leasing the vessel to Blair during the qualifying years of 1988-1991. Blair was unable to receive the shares because he neither owned nor leased the vessel during 1986 or 1987. Collins could not receive the shares because he was not eligible, as the corporation owned the F/V Way. The shares, therefore, were lost.

NMFS, though, informed Collins that F/V Prepator, Inc. was a qualified person for sablefish shares as it had owned the F/V PrEpator during the qualifying years and had a qualifying landing of sablefish,. To obtain his lost shares, Collins asked NMFS to rescind the quota shares allocated to the F/V PrEDATOR, Inc. and F/V Miuky Way, Inc. and reallocate them to him personally. As F/V Przpator, Inc. was generally permitted to receive sablefish shares, personally receiving F/V Prepator shares enabled Collins to qualify under the regulations to obtain the previously lost F/V Mirky Way 1986 and 1987 shares.

However, the problem with this solution was that Collins was not permitted under the corporation's bylaws to unilaterally remove quota shares. NMFS thought at the time it transferred the F/V Prepator, Inc. shares to Collins that he was the sole stockholder of the corporation. When Blair informed NMFS of the true ownership and rights of F/V PrEDATOR, Inc., NMFS rescinded its action. The trial court's decision, then, that Collins acted wrongfully in removing the F/V PrEpaToOoR, Inc. quota shares is supported by the evidence.

B. The Superior Court Did Not Err in Ordering the Distribution.

Collins argues that the distribution ordered in the special master's final report does not reflect a 55:45 distribution when one considers the "hard assets" owned by the corporation and who contributed them. Collins claims that there were hard assets totaling approximately $1.6 million and that he had contributed at least 74% of that total. In the distribution, however, Collings received approximately $425,000, 26% of the hard assets. Blair argues that the distribution ordered by the court was consistent with the evidence presented at trial. Given that the pre-1988 F/V Minky Way shares were Blair's, Blair argues that Collins received 45% of the rights to which he had no viable claim.

The superior court ordered the distribution of assets according to the proposal presented by Blair. The court found that an equitable distribution was "the only sensible solution." It adopted Blair's proposal in order to "maximize the value of the assets available for distribution and to avoid dissipation by adverse tax consequences that may result from denominating the result as a recision."

In Blair's liquidation proposal, Blair received 54.96% of the corporation's assets and Collings received 45.04%. This comports with the 55:45 share of stock owned by each party. Before the superior court, Collins did not explain what constituted the hard assets he claimed. Without a clear indication of the assets Collins referred to and who contributed those assets, the trial court did not abuse its discretion in awarding a distribution based on each party's respective stock holdings.

C. The Superior Court Did Not Err in Finding that Blair Did Not Violate His Fiduciary Duties.

Collins states that Blair breached the covenant of good faith and fair dealing by intentionally deceiving Collins. He argues that this breach was ongoing during their relationship. Collins also argues that Blair, the majority and controlling shareholder in the corporation, had an obligation to treat Collins fairly. Blair argues that he acted properly in carrying out the intent to purchase and in the best interests of the corporation in his retrieval of the corporate quota shares withdrawn by Collins.

Stockholders in closely held corporations owe one another a fiduciary duty. The superior court found that Blair had done nothing wrong in petitioning NMFS for the return of the withdrawn quota shares. Given Collins's reticence in discussing his reasons for his withdrawal of the quota shares, the court found that, rather than breaching a fiduciary duty, Blair was acting in the best interests of the corporation in recouping the corporation's assets. Furthermore, the court stated that Blair, though in a dispute with NMFS over his own quota shares, fished those shares for the benefit of the corporation the first year and should contribute the earnings from the other years in the final distribution.

In petitioning NMFS for the return of the withdrawn shares, Blair made clear the corporation's reasons for seeking a return of the shares. Furthermore, the dispute with NMFS over the proper allocation of Blair's shares is well documented. Since the superi- or court ordered that Blair's failure to fish his shares for the corporation after 1995 be accounted for in the special master's final report, the court did not err in its decision that Blair had not violated his fiduciary duties.

D. The Superior Court Erred in Allowing Blair To Use Corporate Funds To Pay His Personal Legal Expenses.

Collins argues that the trial court erred in reversing the special master's decision to require Blair to pay his legal fees, rather than allowing him to pay his fees with corporate funds. Blair argues that the fees incurred were fees of the corporation as they were incurred during attempts to recover corporate assets converted by Collins and during the ensuing litigation over the corporation's accounting and liquidation.

The special master found that charging the corporation for counsel that primarily represented Blair and attempted to settle the dispute by having Collins contribute shares while Blair contributed nothing was not proper, especially because Collins was not able to charge the corporation for his legal fees. The superior court, though, finding that neither Blair or Sullivan had acted improperly, disagreed with the special master's conclusion. The superior court allowed Blair to recover all of his legal fees from the corporation.

By the time the dissolution came before the trial court, however, many of the issues being litigated involved Collins and Blair personally. Blair filed suit on behalf of the corporation and himself. As Blair's actions benefitted not only the corporation but also benefitted him personally, the trial court's decision to allow Blair to use corporate funds to pay for all of his legal fees was error. On remand, an allocation should be made to determine which of Blair's fees were incurred in pursuit of corporate goals, which the corporation shall pay, and which were incurred in pursuit of personal goals, which Blair shall pay.

E. The Superior Court Did Not Err in Awarding Blair Enhanced Attorney's Fees.

The superior court ordered Collins to pay attorney's fees totaling $87,704 to Blair under Civil Rule 82. Blair incurred $83,782 in fees. His award, therefore, totaled 45% of his incurred fees. Collings alleges that this award resulted in Collins paying 90% of Blair's actual fees. As Blair paid his fees with corporate funds, Collins argues that he (Collins) had already contributed $37,702 towards Blair's fees.

In awarding Blair attorney's fees, the court stated that the award was based on "the complexity of the issues, law and facts of the case which the court has found to be one of the most complex it has seen." Furthermore, the court stated that Collins's "conduct in removing corporate assets without justification, violation of fiduciary duties, the failure to offer a credible explanation of his actions constituted unreasonable conduct within the criteria of Civil Rule 82(b)(8) justifying" an enhanced award.

As there was no money judgment awarded in this case, attorney's fees are governed by Rule 82(b)(2). A prevailing party is entitled to 30% of the party's fees when the case goes to trial. The trial court justified the higher percentage award of 45% after a consideration of the factors in Rule 82(b)(8), allowing for variance in a fee award. We have affirmed awards of up to 75% of attorney's fees. As Blair was the prevailing party, the court's findings that the law and facts were complex and that Collins pursued unreasonable claims and defenses in the suit supports the conelusion that an award of 45% of Blair's fees was not an abuse of discretion. However, on remand, this award should only be applied to those fees personally incurred by Blair.

v. CONCLUSION

Because the trial court's findings are not clearly erroneous, we AFFIRM its order of dissolution of the corporation. However, because the trial court erred in allowing Blair to use corporate funds to pay for personal legal expenses, we REMAND for an allocation of Blair's legal fees.

      . Paragraph 21 states:
      Limited Entry Permits:
      It is agreed that if a limited entry fishing permit system is instituted with respect to halibut and/or black cod in Alaska, the Owner shall assign any and all rights he may have with respect to his usage of the vessel in those fisheries to Charterer to enable Charterer to obtain such limited entry permits.

      . Alaska Statute 10.06.628 generally provides that certain persons may seek the involuntary dissolution of an Alaska corporation. It sets out the grounds for involuntary dissolution and provides that certain interested persons may intervene in an action for involuntary dissolution.

      . State, Dep't of Revenue v. Merriouns, 894 P.2d 623, 625 (Alaska 1995).

      . City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska 1993) (internal quotation marks omitted).

      . Little Susitna Constr. Co., Inc. v. Soil Processing, Inc., 944 P.2d 20, 23 (Alaska 1997).

      . Id.

      . Oaksmith v. Brusich, 774 P.2d 191, 195 (Alaska 1989).

      . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001).

      . Id. (citing Stosh's I/M v. Fairbanks N. Star Borough, 12 P.3d 1180, 1183 (Alaska 2000)).

      . This argument is made explicitly only in regards to the trial court's finding that the intent to purchase and purchase agreements were a settlement of the dispute over who owned the pre-1988 F/V Micky Way shares. The rest of Collins's arguments are phrased in terms of the trial court error in setting aside or ignoring the master's findings, with no reference to the trial court's findings.

      . In making his findings of fact, Special Master White stated that he "had to reach an understanding of the facts. This was complicated by conflicting testimony." Where Collins's and Blair's testimony conflicted, Special Master White "considered whose explanation was more plausible given the circumstances at the time, and knowledge of how the fishing industry operates."

      . Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085 (Alaska 2001).

      . At trial, Blair testified as follows:
      Q: Now do you believe the deal you made that day and the deal we're talking about today [the joint venture agreement], favored you or Mr. Collins?
      A: -I think it favored Mr. Collins.
      Q: Why do you say that?
      A: Because I wasn't exercising my-the 1987 agreement, we were combining everything together, so actually I was-yeah, that's why.

      Q: And if you hadn't made this deal, what would 1995 have looked like to you?
      A: I don't think it would have been good for-no, we would've been tied up in conflict so [his quota shares] would've been tied up.
      Q: Did Mr. Collins ever ask you for a better deal than the one that you think is described in that intent to purchase agreement?
      A: No. No.

      Q: And that's why you think this offer was fair?
      A: According to our 1987 agreement ... I think it was fair, yes.

      A: Like I said, Ralph and I never had any dis-actual dispute because I think we-we settled it in the 1994 agreement.

      . At trial, Blair testified:
      Q: So you were entitled to what?
      A: Milky Way shares.
      Q: An amount equal to the Milky Way shares, is that right?
      A: Yes. Yeah, that's what we both talked about.
      A: Well, that we'd-we had to put Predator shares in the Predator, Inc. because he couldn't put Milky Way shares in the Predator, Inc.; it wasn't allowable, I guess.
      Q: Okay.
      A: So-so, that's-that was the big-that's what they were talking about.
      Q: Was there any discussion that resolved any question about the amount of quota shares that would be put in an order to comply with the July 5 agreement?
      A: Well, Ralph said, well, we'll have to put the Predator in, but it's about equal to the Milky Way because-because they fish right along side each other for all those years. It's got about the same amount of fish, so it'll-it'll be the same anyway, so no big deal.
      Q: So at that point you were no longer talking about putting in Milky Way shares into a business, you were talking about putting Predator shares into a business, is that right?
      A: That's correct.
      Q: And the amount of shares, in your mind, was satisfied by a representation that the Predator shares equaled the Milky Way shares?
      A: That's correct.
      Q: Correct?
      A: That's correct.
      Q: And Mr. Collins was telling you-how did he explain to you that they were approximately the same?
      A: He said they fished the same years and....
      Q: They meaning what, please?
      A: The Predator boat and the Milky Way, he owned them both at the same time. They fished right along side each other that they-they'll have the same amount of shares so shouldn't be a-any big deal, any problem, should be the same, should be equal.

      . 50 C.F.R. § 679.40(a)(2)(i) (2001).

      . Collins was the sole stockholder of F/V Muxy Way, Inc.

      . Alaska Plastics, Inc. v. Coppock, 621 P.2d 270, 276 (Alaska 1980).

      . Collins argues that the funds used to pay Blair's fees would have otherwise been distributed to him in the assets available for distribution. Collins, therefore, would have been entitled to 45% of the funds used by Blair, or $37,702. The court's additional award under Rule 82 results in Collins's share of Blair's fees totaling 90%.

      . Stevens ex rel. Park View Corp. v. Richardson, 755 P.2d 389, 396 (Alaska 1988).


source: Caselaw Access Project

author: MATTHEWS, Justice.

license: Public Domain

text:
    Jerry L. CONNER, Appellant, v. Margaret CONNER, Appellee.
    No. S-10273.
    Supreme Court of Alaska.
    April 18, 2003.

      William T. Ford, Anchorage, for Appellant.
    Maurice N. Ellis, Law Offices of Maurice N. Ellis, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. FACTS AND PROCEEDINGS

After a marriage of twenty-nine years, Jerry and Margaret Conner separated on August 18, 1999. Their divorcee trial was held on December 14, 2000.

The main issue in this appeal is the division of retirement benefits. During the marriage, Jerry worked as an air traffic controller for the Federal Aviation Administration. He became disabled in 1995 at the age of forty-two. Jerry initially took a disability retirement, but in 1996 he began collecting federal workers' compensation benefits instead, because the workers' compensation benefits were greater and were tax free. Retirement benefits were $2,428 per month, whereas the workers' compensation benefits were approximately $4,100 every four weeks. Upon divorce, Jerry's workers' compensation benefits were reduced to approximately $3,850 every four weeks.

In the divorce trial, the superior court allocated to Margaret what would have been her monthly share of the retirement benefits from the day of separation to the day of the divorce trial. This was $19,424, one-half of $2,428 times the sixteen months between separation and trial. But this amount appears not to have been used in the trial court's ultimate property division calculations. In addition, the court awarded half of Jerry's workers' compensation payments to Margaret for the next four years. After the four-year period the award to Margaret was reduced to $1,214, one-half of the imputed retirement payments.

During the parties' separation, Margaret was awarded exclusive use of the couple's house. Jerry was ordered to continue to make payments of $1,288 on the home equity loan that was secured by both the house and by their truck. The court also ordered Jerry to pay interim spousal support of $750 per month. In the property division, the court refused to credit Jerry for the loan payments. Jerry was awarded the truck and Margaret the house, but the court allocated the entire remaining $50,000 debt to the house, thus reducing Margaret's net assets by $50,000 and showing Jerry's truck as free and clear. The trial court also ordered Jerry to designate Margaret as the sole beneficiary of any life insurance he carries, and ordered the parties to split the cost of obtaining survivor benefits for Margaret, should Jerry ever elect to receive his retirement benefits.

Jerry challenges these actions on appeal.

II. STANDARDS OF REVIEW

A. Property Division

The trial court has broad discretion to make a property division in the manner it determines to be most equitable; this court will not overturn a property division unless it is clearly unjust. A three-step process is used to divide marital assets. First, the court determines what specific property is available. Second, the court values that property. Finally, the court equitably allocates the property. The division of property is reviewed for abuse of discretion except that any legal questions that might be involved are reviewed de novo. An equal division is presumed to be most equitable absent findings that warrant an unequal division.

B. Findings of Fact

Findings of fact will only be set aside if they are clearly erroneous, that is, if this court is left with "a definite and firm conviction on the entire record that a mistake has been made."

III. DISCUSSION

A. The Superior Court Erred in Its Treatment of Jerry's Retirement Benefits.

1. Only a portion of Jerry's workers' compensation benefits replaces his retirement benefits and only that portion should be classified as marital property.

Jerry argues that his workers compensation benefits are his separate property and that the superior court erred when it awarded one-half of these benefits to Margaret. He is partly correct. Workers' compensation payments or disability retirement payments represent income replacement. After divorce, they are regarded as the separate property of the spouse to whom they are paid. In contrast, retirement benefits earned during the marriage are marital property subject to equitable division. But onee Jerry's pension matures, Margaret will be entitled to one-half of his retirement benefits. Until then, Jerry's workers' compensation award is a form of income replacement in which Margaret has no interest. Because a portion of Jerry's workers' compensation income will be a substitute for Jerry's regular retirement benefits after maturity of his pension, this portion should be viewed as marital property and divided. Otherwise, when Jerry takes workers' compensation benefits in lieu of matured retirement benefits, Margaret will be deprived of a valuable marital asset.

We thus hold that the imputed retirement portion of this income stream must be separated from the disability-related portion, with the former divided as marital property and the latter left as the employee spouse's separate property. Other courts are in accord. For example, the Washington Court of Appeals has stated that if the employee spouse "would be receiving retirement benefits but for a disability, so that disability benefits are effectively supplanting retirement benefits, the disability payments are a divisible asset to the extent they are replacing retirement benefits."

Likewise, the Supreme Court of Rhode Island held:

[Where the employee spouse elects to receive disability benefits in lieu of a matured right to retirement benefits, only the net amount thus received over and above what would have been received as retirement benefits constitutes compensation for personal anguish and loss of earning capacity and is, thus, the employee spouse's separate property. The amount received in lieu of matured retirement benefits remains ... property subject to division on dissolution.[]

It follows that the court's allocation of $19,424 to Margaret, representing one-half of the retirement benefits from the time of separation to the time of trial, was erroneous because the pension had not yet matured. However, this error appears to be harmless because no order ever effectuated the award of $19,424. To the extent that the award of one-half of the workers' compensation benefits for four years following the date of trial represents an award of Margaret's share of pension benefits, the award is also erroneous until the date of maturity. But for the reasons discussed below, it is possible that some or all of this award may be justified on other grounds. At the end of four years, the trial court required Jerry to begin paying Margaret $1,214, half of his imputed monthly retirement benefits. This was proper because Jerry's pension will have matured when this aspect of the order becomes effective.

2. Jerry's fiftieth birthday is an appropriate maturity date.

Jerry contends that the applicable maturity date of the retirement benefits should be July of 2009, when he turns fifty-six. He contends that this was his earliest reasonably expected retirement date because air traffic controllers cannot serve beyond the age of fifty-six. Margaret argues that Jerry's retirement benefits should be considered to be mature as of Jerry's fiftieth birthday.

The statute governing Jerry's retirement age is 5 United States Code $ 8412(e), which provides that an employee is entitled to retirement benefits (1) after completing twenty-five years of service as an air traffic controller, or (2) after becoming fifty years of age and completing twenty years of service as an air traffic controller.

Because of the disability that Jerry suffered beginning in 1995, he will never have twenty years of service as an air traffic controller. But he would have had twenty years of service as an air traffic controller before reaching the age of fifty had he not been disabled. Therefore the earliest date that the parties could have been expected to begin receiving the pension-again absent the disability-would have been on Jerry's fiftieth birthday. This should mark the earliest possible maturity date and thus, the earliest point at which Margaret had any expectation of realizing benefits from the pension.

The trial court found that Jerry could have elected to receive retirement benefits in 1995, after he became disabled. But Jerry could only receive retirement benefits if he did not receive workers' compensation. Jerry was not eligible for regular retirement at the age of forty-two when he became disabled, or at the time of trial when he was forty-seven. Until the maturity of his pension-20083 at the earliest-Jerry's retirement benefits are wage replacement payments.

Use of the earliest maturity date has been found to be proper in order to protect the nonemployee spouse. While choosing the earliest maturity date may not be required, it is not an error to make such a choice and it is evident that here the trial court intended to choose the earliest possible date. We conclude therefore that the maturity date that should be used in this case is Jerry's fiftieth birthday. This is the date when the workers' compensation payments should be considered to include pension payments that are subject to division.

3. The award to Margaret may be justified as rehabilitative spousal support.

Margaret argues that the superi- or court's award of one-half of the workers compensation benefits for four years may be justified as rehabilitative alimony. Rehabilitative alimony may be appropriate when one spouse is exiting the marriage with few job skills and limited earning capacity. An award of rehabilitative alimony should be designed to support the spouse while she receives the training and education necessary for her to become self-supporting.

A number of the findings made by the trial court suggest that the court in making the award in question was motivated at least in part by considerations relevant to rehabilitative alimony. The court noted that Margaret did not pursue a career during the marriage and instead raised the parties' two children. Her earning capacity at the time of trial was roughly $10,000 per year, and she was unable to find satisfactory year-round employment. Margaret is currently enrolled in an engineering program from which she should graduate in 2005, and Jerry was ordered to pay her one-half of his workers compensation benefits until then.

In this case, the award was explicitly a part of the property division ordered by the court and the court referred to it as such. The needs analysis typically required as an accompaniment of an award of rehabilitative alimony is not reflected in the court's findings. We therefore conclude that the four-year award cannot be affirmed based on the current findings. On remand the court may consider whether rehabilitative alimony is appropriate and, if so, may make an award accompanied by appropriate findings.

B. The Superior Court Did Not Err in Failing To Separately Allocate the Debt on the Truck and the House.

Jerry argues that the trial court erred by failing to divide the liability between the house and the truck. The trial court made Margaret responsible for paying the entire amount of the note and allocated it entirely to the house. Jerry contends that this has the effect of distorting the value of the truck which was awarded to him. In the court's calculation the truck was valued at $23,000 free and clear. Jerry contends that in reality the truck is encumbered and eannot be sold.

Although Jerry is correct that his truck will not be saleable until the note is paid, and although it would have been preferable to have allocated a part of the note to the truck and a part to the house, he did not demonstrate that this could actually be done. The security holder would not necessarily agree to a novation releasing part of the security or one of the jointly responsible parties. Further, vehicles have value even if they are not saleable, as the popularity of long-term leasing of vehicles illustrates. Finally, the trial court found that the note should be paid off within three and one-half years of the hearing. If this is done, Jerry's truck will then be free and clear. We conclude based on these considerations that the court did not err in failing to allocate some portion of the debt to the truck.

C. The Superior Court Did Not Err by Refusing To Credit Jerry for His Post-Separation Payments on the Parties' Mortgage.

Jerry also argues that the trial court erred in failing to give him credit for his interim house payments when he was already required to pay interim spousal support. Trial courts are required to consider payments made from one party's post-separation income to preserve marital assets, but are not required to give credit for such payments in the final property division. This court has stated that "no fixed rule requiring credit in all cases should be imposed. Instead ... payments from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property."

In this case, the trial court specifically considered Jerry's post-separation house payments. The court found that due to the parties' disparate incomes the payments were fair and it refused to give Jerry any credit for the payments. We have routinely upheld decisions where the trial court has denied eredit for post-separation house payments because of the disparity in the parties' incomes. Thus, the trial court did not err in refusing to give Jerry credit for the interim house payments.

D. The Superior Court Erred in Requiring Jerry To Name Margaret as the Sole Beneficiary of His Life Insurance.

The trial court ordered "to the extent that [Jerry] currently maintains life insurance, he must designate [Margaret] the sole beneficiary of his life insurance. The reason for this is to protect [Margaret] in the event that [Jerry] passes away before her right to collect the retirement benefits kicks in." No evidence was presented at trial regarding Jerry's life insurance. Jerry contends that this requirement is unnecessary because he has already made an election with the pension administrator that Margaret shall receive a survivor annuity which exceeds her current calculated share of the retirement amount in the event of his death. In his motion for reconsideration, Jerry submitted a letter from the federal office of personnel management which appears to verify his position that Margaret is adequately protected in the event of his death.

This court has held that survivor benefits are an "intrinsic part of the retirement benefits earned during the marriage." Accordingly, when dividing retirement benefits as part of the marital estate, trial courts must protect a spouse's interest in the retirement benefits either by requiring life insurance or by including a clause in the qualified domestic relations order (QDRO) requiring that survivor benefits be paid to that spouse.

In this case, the trial court ordered both life insurance and survivor benefits to protect Margaret's share of Jerry's retirement benefits without adequate findings to support such an order. It would be inappropriate to require Jerry to name Margaret as the sole beneficiary of any life insurance policy if she is already adequately protected by the survivor annuity. On remand, we believe that the court should reconsider requiring life insurance in view of the evidence that indicates that it is not needed.

IV. CONCLUSION

REVERSED and REMANDED for further proceedings in light of this opinion.

      . The trial court made its calculations based on the sixteen months between the separation and divorce (1,214 x 16 = 19,424) but mistakenly said it was basing its calculations on a fourteen-month period.

      . Broadribb v. Broadribb, 956 P.2d 1222, 1225 (Alaska 1998) (quoting Cox v. Cox, 882 P.2d 909, 913-14 (Alaska 1994)).

      . Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

      . Id.

      . Id.

      . Id.

      . Johns v. Johns, 945 P.2d 1222, 1225 (Alaska 1997) (quoting Lundquist v. Lundquist, 923 P.2d 42, 47 (Alaska 1996)); Cox, 882 P.2d at 913.

      . McDougall v. Lumpkin, 11 P.3d 990, 993 (Alaska 2000).

      . Alaska R. Civ. P. 52(a).

      . Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (internal citation omitted).

      . Miller v. Miller, 739 P.2d 163, 165 (Alaska 1987).

      . Id.

      . Edelman v. Edelman, 3 P.3d 348, 356 (Alaska 2000).

      . Maturity refers to the earliest point at which the worker can receive retirement benefits. See Laing v. Laing, 741 P.2d 649, 655 n. 8 (Alaska 1987)

      . We refer here to the payment-upon-receipt method for dividing pension payments. This method was used by the trial court. The other method is to calculate the marital property portion of a pension's present value and take that into account in the property division. Id. at 656-57.

      . See Levy v. Office of Pers. Mgmt., 902 F.2d 1550 (Fed.Cir.1990) (applying California law and holding that the component of a disability pension that is based on longevity of service is subject to division but the remainder is the disability component and is separate property); Villasenor v. Villasenor, 134 Ariz. 476, 657 P.2d 889 (Ariz. App.1982) (separating the "disability component" from the "retirement component" of a civil service disability retirement annuity); In re Marriage of Castor, 249 Mont. 495, 817 P.2d 665, 669 (1991) (civil service disability pensions can have both a "retirement" component and a "disability" component, here the annuity was characterized as "retirement" benefits); Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1988) (where part of the disability pension represents retirement benefits, that part remains marital property subject to distribution); Allard v. Allard, 708 A.2d 554 (R.I.1998) (a disability pension that serves to replace a retirement pension is divisible to the extent that it replaces the retirement portion). Allard lists additional jurisdictions in accord. Id. at 558.

      . In re Marriage of Geigle, 83 Wash.App. 23, 920 P.2d 251, 255 (1996).

      . Allard, 708 A.2d at 558 (quoting In re Marriage of Stenquist, 21 Cal.3d 779, 148 Cal.Rptr. 9, 582 P.2d 96, 101 (1978)).

      . See discussion infra A.2.

      . See discussion infra A.3.

      . A Massachusetts court stated:
      [The nonemployee spouse] argues that for purposes of computing present value in the context of divorce proceedings, a court should assume the earliest possible retirement date for the spouse with the pension. Some courts have thought this a sound principle. See In re Marriage of Gillmore, 29 Cal.3d 418, 174 Cal.Rptr. 493, 629 P.2d 1 (1981). The point, adverted to in the Gillmore opinion at 424-425 [174 Cal.Rptr. 493, 629 P.2d 1], is that the spouse with the retirement benefits should not be able to manipulate them to impair the other spouse's benefits.
      Dewan v. Dewan, 30 Mass.App.Ct. 133, 566 N.E.2d 1132, 1134 (1991) (citations omitted).

      . See id. "In general, fair value analysis assumes norms.... There is no distortion if a judge chooses a retirement age that is the norm" rather than "the earliest possible retirement age." Id.

      . See Myers v. Myers, 927 P.2d 326, 329 (Alaska 1996).

      . Id. at 329 (citing Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994)).

      . See AS 25.24.160(a)(2). See, e.g., Dixon v. Dixon, 747 P.2d 1169, 1174 (Alaska 1987) (remanding case for specific findings because spouse's "vague education plans" did not support trial court's award of rehabilitative alimony); Miller v. Miller, 739 P.2d 163, 165 (Alaska 1987) (rejecting alimony award absent specific findings as to whether wife intended to use alimony for job training); Carlson v. Carlson, 722 P.2d 222, 225 (Alaska 1986) (requiring trial court to reconsider alimony award and to state reasons for its decision); see also Jones v. Jones, 835 P.2d 1173, 1178-79 (Alaska 1992) (requiring superior court to make specific findings regarding spouse's financial needs when awarding spousal support).

      . Jerry asserted at trial that he had researched dividing the note and that it could be done, but he failed to provide the court with a practical method to accomplish the division.

      . Ramsey v. Ramsey, 834 P.2d 807, 809 (Alaska 1992).

      . Id.

      . Dodson v. Dodson, 955 P.2d 902, 912 (Alaska 1998) (upholding trial court's refusal to grant credit to husband for post-separation house payments because the parties had highly disparate incomes); Harrelson v. Harrelson, 932 P.2d 247, 253 (Alaska 1997) (same).

      . Zito v. Zito, 969 P.2d 1144, 1147 (Alaska 1998) (internal quotations and citation omitted).

      . See McDougall v. Lumpkin, 11 P.3d 990, 996 (Alaska 2000) ("Here, [the wife] either needs life insurance to protect her interest ... or a clause in the QDRO [ensuring her the survivor benefits].").

      . First, the trial court's order dividing the federal retirement plan awards Margaret the maximum former spouse survivor annuity, plus 100% of the balance of any retirement funds if Jerry should die, plus the maximum death benefit as allowed by law. The court's order and findings also state that if and when Jerry elects to receive his retirement pay, Margaret and Jerry will split equally the costs of obtaining survivor benefits for Margaret.
      Second, the trial court also ordered Jerry to designate Margaret as the sole beneficiary on any life insurance Jerry maintains "to protect [Margaret] in the event that [Jerry] passes away before her right to collect the retirement benefits kicks in."


text:
    Trudy TUSH, Appellant, v. John C. PHARR, Thomas P. Owens, Jr., and Owens & Turner, P.C., Appellee.
    No. S-10229.
    Supreme Court of Alaska.
    April 25, 2003.

      Kristi Nelson Pennington and Richard D. Pennington, Pennington & Associates, Anchorage, and Gary Eschbacher, G.R. Esch-bacher Law Offices, Anchorage, for Appellant.
    David Karl Gross and Timothy J. Petume-nos, Birch, Horton, Bittner and Cherot, Anchorage, for Appellee John C. Pharr.
    James D. Gilmore, Gilmore & Doherty, Anchorage, for Appellees Thomas P. Owens, Jr. and Owens & Turner, P.C.
    Before: MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Trudy Tush appeals the trial court's grant of summary judgment against her on four separate motions. Because genuine issues of material fact remain on all four, we reverse the order of the superior court granting summary judgment on each motion and we remand the case to the superior court for further proceedings.

II. FACTS AND PROCEEDINGS

A. Facts

Trudy Tush and her former husband Larry Tush sued Hector Perez to evict him. Tush owns numerous rental properties and has been involved in real estate investment for over twenty years. Perez was one of her tenants.

On August 23, 1993 Tush, acting pro se for herself and Larry, sued to eviet Perez from her rental property at 1201 Chugach Way in Anchorage, a single family residence (Chu-gach property). Perez obtained legal representation from Alaska Legal Services. Perez answered Tush's complaint and filed numerous counterclaims against Tush alleging intentional infliction of emotional distress, willful diminution of essential services, breach of the covenant of good faith and fair dealing, harassment, retaliatory eviction, unlawful termination of utilities, and failure to maintain and repair the premises. Tush then hired attorney John C. Pharr to represent her and Larry's interests.

Throughout her real estate investments, Tush and her spouse managed the properties by themselves. To obtain insurance for the properties, Tush would normally telephone an insurance broker and attempt to purchase whatever her bank required her to carry, while investigating to find the cheapest price. "I would tell them what I wanted and ... they would get it for me."

Tush had rental property insurance, including liability coverage, for the Chugach property. Tush purchased this policy from the Umialik Insurance Company. Umialik covered a number of Tush's properties After the policy was obtained, certain tenants filed claims against Tush. One tenant from 1117 Chugach Way, which Tush also owned, alleged improper notice of eviction and intentional infliction of emotional distress. Tush notified her insurance broker, who notified Umialik of the claim. Umialik hired Tush an attorney, provided her a defense, and settled the elaim for $5,000.

Umialik subsequently refused to renew the policy. Tush then sought coverage for her properties from other companies. She eventually decided on State Farm Fire and Casualty Company (State Farm). Tush applied for insurance from State Farm over the telephone. Tush obtained a separate policy for the Chugach property from other properties she owned on Chugach Way. Tush's application was filled out by an insurance agent speaking with Tush over the phone. Tush never signed the application. The application states that Tush had not had a loss in the last three years, had never had an insurance carrier deny renewal, and that Tush's last insurance company was Liberty National. All of these statements are false. State Farm issued Tush a policy including, among other things, liability coverage with limits of $1,000,000 per occurrence.

Tush was deposed on September 15 and September 20, 1998. At the deposition, Tush was asked questions regarding her insurance coverage for the Chugach property. Pharr objected as to relevance, and Tush largely refused to respond. Later, Tush was marginally more forthcoming on the subject of insurance, but she answered the question whether she had liability insurance on the premises at 1201 Chugach with, "No, it's just the value of the house."

In November Pharr received a settlement offer from Perez for $25,000, including attorney's fees and costs. Pharr alleged that he discussed the offer with Tush in his office and then mailed it to her for documentation purposes. Pharr further claimed that when he showed it to Tush she laughed "and tossed it down on the desk." According to Pharr, no further discussion was held regarding this settlement offer. Tush denied that the $25,000 settlement offer was ever communicated to her.

There was then no action in the Perez lawsuit until October 1994, when Dan Fitzgerald entered his appearance on behalf of Perez by filing a second amended answer and additional counterclaims. Pharr claims that, at around this time, he discussed the new counterclaims filed by Fitzgerald with Tush. Pharr recounted their conversation at his deposition:

it's been my experience that insurance actually draws lawsuits because the claimant is after the insurance. It's more of a fat easy target than trying to execute on somebody's property, for example. So they may-you know, the other side may have been under some impression that there was insurance, and that they were going to go after that insurance. And once they found out there wasn't any insurance, they'd be discouraged from pursuing it.

On December 28, 1994 Fitzgerald successfully had the case removed to the superior court.

Tush and Larry divorced in 1995. Tush believed the divorcee created a conflict of interest in Pharr's representation. Because of this perceived conflict of interest, Tush terminated Pharr's services on January 4, 1995, instructing him to do nothing further in her case. There was no other reason why Pharr's services were terminated; Tush was generally happy with the work he had done in the case. At no time during Pharr's representation of Tush did Pharr ever ask to see any of Tush's insurance policies, nor did he himself investigate or direct Tush to investigate whether her insurance would cover any of Perez's claims.

On January 24, 1995 Pharr received Per-ex's second set of requests for production. Two requests asked for production of Tush's insurance policies. Although these requests for production arrived in Pharr's office after Tush had terminated his services, Pharr accepted service of the document because he was the attorney of record and had not re-

ceived notice of who Tush's new attorney would be. Pharr, however, did not attempt to answer the discovery request, mailing it to Tush with an explanation of when her responses were due. On February 6, 1995 Pharr sent a letter to Fitzgerald attempting to discourage him from pursuing the case based on his belief that there was no insurance coverage involved. This letter was copied to Tush. Pharr also answered Perez's new counterclaims (filed by Fitzgerald on February 20) to protect Tush's interests while she was obtaining new representation.

Robert Reiman entered his appearance as Tush's attorney in February 1995. In May 1996 Perez made an offer of judgment to Tush for $50,000. Reiman alleged that Tush was informed of this offer but refused to accept it. In January 1997 the parties had a settlement conference and Tush offered $20,000 in an attempt to settle the case. This offer was refused. At a second settlement conference Perez offered to settle for $450,000. Tush countered with a piece of property worth approximately $50,000 and $20,000 in cash paid out over a period of time. Perez then made a counteroffer of $400,000. This offer was not accepted and settlement negotiations between the parties ended.

While Reiman represented Tush, Fitzgerald moved to compel the answers to the second set of requests for production. Rei-man alleges he produced the declaration page from the State Farm policy. Although Reiman thought "it may provide coverage on one or more of the claims," he did not attempt to contact State Farm and tender the claim. Reiman alleges he suggested to Tush that she tender the claim to State Farm and that she told him in response that she did not want to do so.

Tush fired Reiman and replaced him in January 1997 with attorney Tom Owens. Owens accepted representation in the matter after a continuance of the trial date was obtained by Reiman.

The Perez lawsuit went to trial. In November 1997 a jury found in favor of Perez and awarded a verdict, including punitive damages, in excess of $1,600,000.

On April 8, 1998 Tush received notice that State Farm would no longer be insuring her other properties under a separate policy "due to misrepresentation regarding prior cancellation or refusal to issue or renew similar insurance by an insurer."

Tush again retained new counsel. Counsel then tendered the Perez claim to State Farm on February 4, 1999. State Farm undertook an investigation to determine coverage. On February 22, 1999 State Farm disclaimed coverage under Tush's primary insurance policy because the claim was not tendered "on a timely basis," prejudicing its ability to defend and breaching the policy's "prompt reporting" requirement. State Farm further investigated and concluded that the Tushes were not covered under any of their other insurance policies for the Peres judgment, because of both the delay in tendering the claim and the policy's intentional acts exclusion.

B. Proceedings

In October 1999 Tush filed the present case alleging that her attorneys, Pharr, Reiman, Owens and Owens & Turner P.C., acted below the standard of care during the course of the Perez: lawsuit by failing to tender her claim to State Farm. She alleged causes of action for professional negligence, breach of fiduciary duty, and breach of contract. Tush contended that had State Farm been given notice of the counterclaims, it would have acted on them under Tush's insurance policy and provided a defense and either settled the claim or paid any verdict.

Four motions for summary judgment were filed by the defendants in this matter. The first was filed by Pharr on June 830, 2000, arguing that because Tush testified the Chu-gach property did not have coverage, he was under no duty to further investigate whether or not such a policy existed. The second raotion for summary judgment was filed September 21 by Reiman. In his motion Reiman argued that not only did he not have a duty to tender the claim, but also that even if such a duty existed, he was not the cause of Tush's injury as the misrepresentations in her application for coverage to State Farm voided the policy ab initio. The third motion for summary judgment was filed October 5, also by Pharr. In it, Pharr joined in Rei-man's motion and further argued that even if Tush was correct that a duty existed, any negligence on the part of the defendants was not the cause of Tush's harm as State Farm would have denied coverage under the intentional acts exclusion. The final motion for summary judgment was filed by Owens and Owens & Turner P.C. In it, Owens argued that regardless of his or his firm's actions State Farm would have denied the claim because of Tush's failure to tender it in a timely fashion. Owens also joined in Rei-man's motion for summary judgment and Pharr's second motion for summary judgment.

Superior Court Judge John E. Reese granted each motion for summary judgment, specifically adopting as to each the arguments made by defendants.

Tush now appeals.

III. STANDARD OF REVIEW

We review a trial court's grant of summary judgment de novo and affirm if the record presents no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. All reasonable factual inferences are drawn in favor of the non-moving party.

Contract language interpretation is a question of law, subject to our de movo review. Insurance contracts are interpreted "by looking to the language of the disputed policy provisions, the language of other provisions of the policy, and to relevant extrinsic evidence. In addition, we also refer to case law interpreting similar provisions."

IV. DISCUSSION

A claim of legal malpractice consists of four elements: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (8) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.

A. Summary Judgment Was Improperly Granted on Pharr's First Motion for Summary Judgment Because Material Facts Were in Dispute as to Pharr's Duty To Investigate.

Pharr argues he did not breach his duty of care to Tush by failing to further investigate the issue of insurance. Tush responds that reasonable minds could differ on whether or not Pharr had a duty to further investigate, creating a genuine issue of material fact in dispute. We agree with Tush.

Because the question of whether a tort duty exists is usually a question for the trier of fact and therefore not susceptible to summary adjudication, summary judgment on the question of a tort duty is only appropriate "when the undisputed facts support only one reasonable inference."

But the facts pertinent to Pharr's initial motion for summary judgment supported more than one inference. The question before the court concerned the first element of a legal malpractice claim: Did Pharr have a duty to investigate Tush's insurance? For several reasons we conclude that material facts concerning this issue were in dispute.

First, Tush's deposition testimony on the question of what type of insurance she carried on her rental properties was ambiguous. She testified that all of her properties were covered, but then she answered the question, "Is it Hability insurance?" by saying, "No, it's just the value of the house," a statement that implies, but does not clearly state, that the insurance covers only loss of premises. But then, when asked if her other policies strictly insured the value of the house, she responded "I really don't know." Finally, when asked if she knew the extent of her insurance coverage and other information pertaining to her policies, Tush responded, "I leave that up to the insurance agent and I talk to him about it." Pharr contends that Tush's sworn testimony that she did not have liability insurance relieved him of the duty to inquire further. But given the ambiguous nature of Tush's deposition responses, Pharr's defense that he was entitled to rely on his client's deposition testimony raises disputed issues of fact.

Second, Pharr relies on his assertion that Tush told him in a separate conversation that she had no liability insurance on the subject property. But Tush denied that such a conversation ever took place, creating a further material factual dispute.

Third, Tush offered substantial expert opinion to support the proposition that an attorney faced with the situation facing Pharr had a duty to obtain and inspect the insurance policies so as to competently advise his client. Expert Robert Wainscott opined, "It has been my experience that it is the standard and essential practice of the attorney to immediately seek out all insurance policies that may possibly provide coverage for a date of event and tender the claims or counterclaims to the carrier or carriers who wrote the policies." Expert James A. Hanson offered the opinion that, after Tush's deposition, "prudence required a full review of her insurance policies by her counsel." Expert Roger Holmes added, "It is the standard of care for a lawyer representing a client in a personal injury, bodily injury or property damage claim to help the client ascertain the availability of insurance coverage which might provide for a defense and/or indemnity to the client. This should be done as soon as possible after the commencement of the case." To be sure, there was contrary expert testimony. But at the least, a material fact dispute existed on the attorney's duty."

Finally, Pharr admitted that he adopted the position that Tush was better off without liability insurance, because in his experience the existence of such insurance attracted plaintiffs.

Pharr cites a number of cases for the proposition that a lawyer has no duty to investigate the truth or falsity of his or her client's representations. But these cases involved unambiguous situations, and Pharr's argument assumes that Tush's deposition testimony stating she does not have lability insurance was unequivocal. As noted above, this is far from the case. The rule that an attorney can rely on a client's factual representations absent cireumstances indicating otherwise provides seant support for Pharr, because there are numerous circumstances indicating otherwise here: the ambiguity of Tush's deposition statements, her denial that she told Pharr outside of the deposition that she had no liability insurance, and expert opinion to the contrary. As stated in Milliner v. Elmer Fox & Co., one of the cases upon which Pharr relies, "(als a general rule, an attorney is not required to investigate the truth or falsity of facts and information furnished by [a] client, and his failure to do so would not be negligence ... unless facts and circumstances of the particular legal problem would indicate otherwise." The court in Harline v. Barker, applying Milliner, looked to see if there were any "special circumstances" indicating that the client's representation could not be relied on and found there were. Here too, the circumstances of Tush's testimony arguably should have alerted Pharr that her single representation that she did not have liability insurance might have required further investigation. A review of Tush's testimony shows that the issue of what insurance she had was far from clear. When asked if she knew the extent of her insurance coverage or other information pertaining to her policies, Tush answered "I leave it up to the insurance agent and I talk to him about it." Also, Tush's testimony clearly stated that she was in possession of other insurance policies as well. Given that Pharr knew this, there is a material fact dispute as to whether he should have inquired as to whether any of these policies might have provided possible coverage for the Perez claim.

Because reasonable minds could differ as to whether Pharr had a duty to further investigate whether Tush had Hability insurance for the Chugach property, summary judgment on Pharr's first motion was inappropriate.

B. Summary Judgment Was Improperly Granted on Pharr's Second Motion for Summary Judgment Because Material Facts Were in Dispute as to Whether State Farm Would Have Denied Coverage or Could Have Done So Successfully.

To make out a prima facie claim for attorney malpractice, Tush must show that the defendants were the cause of her injury. Pharr's second motion for summary judgment argued that Tush is unable to do this because regardless of the defendants' actions, State Farm would have denied Tush's claim due to misrepresentations in her application or under the intentional acts exelusion of her policy. Tush claims that any argument as to what State Farm would or could have done had the claim been tendered is speculative and that there are genuine issues of material fact in dispute with regard to both her alleged misrepresentations in obtaining her State Farm policy and the intentional acts exclusion of that policy. Again we agree with Tush.

1. There are disputed issues of material fact as to whether the misrepresentations in Tush's insurance application would have caused or permitted State Farm to void the policy ab initio.

Tush argues that by ruling that regardless of whether the claim was promptly tendered to State Farm, that company would have denied coverage due to the material misrepresentations in Tush's application, the superior court improperly resolved a genuine issue of disputed material fact and misapplied the applicable law. Pharr responds that the superior court correctly decided this causation issue. Causation issues such as this are normally left for the trier of fact where unresolved fact questions remain, although the court may decide the matter where the evidence is such that reasonable minds cannot differ.

Tush's policy for the Chugach property contains a provision dealing with concealment, misrepresentation, and fraud. Under it, the policy is void in any case of fraud by the insured as it relates to the policy. The policy is also void if the insured intentionally conceals or misrepresents a material fact concerning the policy or the covered property.

Under AS 21.42.110,

All statements and descriptions in an application for an insurance policy or annuity contract, or in negotiations for the policy or contract, by or in behalf of the insured or annuitant, shall be considered to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements may not prevent a recovery under the policy or contract unless either
(1) fraudulent;
(2) material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(3) the insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount, or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

Tush's application for insurance was made by telephone and, as a result, she did not sign the application. Tush denied that she had been asked about prior losses or cancellations, testified that she had told the State Farm agent that her previous insurance had just been canceled, and testified that she did not understand "prior losses" to mean insurance claims. Tush offered expert opinion to the effect that because of the uncertainty introduced by Tush's testimony, State Farm might not have denied coverage or might have defended Tush under a reservation of rights. Under these circumstances, the question whether State Farm would have voided the policy ab initio-a question that required speculation as to what another would have done-was one for the jury. Moreover, although State Farm has maintained that even an unsigned application can be canceled, summary judgment would still be inappropriate. Simply because State Farm had the option to cancel the policy does not mean that it would have done so had the claim been promptly tendered under these circumstances.

Further, what State Farm might have done in response to a tender of defense is by no means the complete inquiry. Even if State Farm would have denied coverage or refused to defend, the question whether such actions would have been legally sustainable if challenged must also be decided.

Pharr relies on Bennett v. Hedglin, but that case is distinguishable factually from the present case. In Bennett, we upheld the superior court's grant of summary judgment against Bennett's claim for insurance coverage because it was clear that Bennett made the misrepresentation on the application. Even though Tush's actions in this case and in the Peres lawsuit may cast her credibility into question, summary judgment is unavailable where credibility issues are to be resolved.

Because how the misstatements on Tush's application came about and what actions State Farm would or could have taken after discovering the misstatements are unclear and in dispute, summary judgment should not have been granted on these grounds.

2. There are disputed issues of material fact as to whether the intentional acts exclusion in Tush's policy would have precluded coverage.

Pharr contends that the intentional acts exclusion would have precluded coverage for the Peres claims under Tush's State Farm policy. Tush argues in opposition that State Farm could not properly have denied a defense based on the policy's intentional acts exclusion under Alaska law.

Tush's rental dwelling policy provides business liability coverage where State Farm agrees to "pay up to our limit of liability for the damages for which the insured is legally liable ..." including malicious prosecution and wrongful eviction. (Emphasis in original.) However, this coverage does not extend to "bodily injury, personal injury, or property damage ... which is either expected or intended by an insured; or ... to any person or property which is the result of willful and malicious acts of an insured[.]" (Emphasis in original.)

" 'An insurer's duty to defend and its obligation to indemnify are separate and distinct contractual elements'" The duty to defend is broader than the duty to provide coverage. A duty to defend arises whenever a complaint sufficiently alleges an issue of liability covered by the policy on its face, "even if the allegations of the complaint are false or groundless." "The insurer may therefore be obligated to defend even where it has no ultimate liability under the policy." And, the "presence of other allegations in the complaint which are not within policy coverage does not relieve [an insurer] of its duty to defend."

Pharr is correct that the Peres counterclaims have as their basis intentional conduct. However as even Pharr's own expert, Daniel T. Quinn, opined, State Farm might have agreed to defend in any event. First, while Counts I and III through VI of the Perez complaint allege intentional misconduct, Count II alleges in part that "[pJlain-tiffs deliberately or negligently failed to provide essential services to the rental premises." (Emphasis added.) Quinn opined that although the majority of the complaint pleads intentional acts, in such a situation he would advise the insurer to defend, possibly under a reservation of rights. Wainscott opined that even more of the counts might have been accepted for coverage by State Farm, and that the remainder would be accepted by State Farm under a reservation of rights. Disputed questions of fact precluded summary judgment here.

Finally, although Tush's policy excludes intentional acts, the policy explicitly covers injuries "arising out of" wrongful eviction, a tort that may be committed either as intentional or " 'unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.'" Tush's policy does not differentiate between intentional and negligent wrongful eviction. Accordingly, because the policy includes wrongful eviction, it must be deemed to be excluded from the intentional acts ex-elusion.

In sum, disputed issues of material fact preclude summary judgment on Pharr's see-ond motion for summary judgment concerning whether State Farm would or could have denied coverage because of misrepresentations in the application. These include whether Tush was responsible for the misrepresentation and whether State Farm would have denied coverage and a defense under the facts of this case. Summary judgment was also inappropriate on the question of whether the intentional acts exclusion of the policy barred coverage, because at least one of the counts of the original Peres counterclaims alleged negligence by Tush, and the policy specifically included wrongful evietion. Thus, reasonable minds could differ as to whether the defendants' failure to tender the claim was the cause of Tush's injury, making the question of causation one for the jury.

C. Summary Judgment Was Improperly Granted on Owens's Motion Because Whether Tush's Claim Would Have Been Untimely Had Owens Tendered it to State Farm Involves Disputed Questions of Fact.

Owens claims that regardless of whether it was negligent for him to have failed to tender Tush's claim to State Farm, Tush suffered no damage as the claim would have been deemed untimely. Owens bases this argument on the fact that by the time Owens had agreed to represent Tush, three and one-half years had passed and the case had escalated from one in which plaintiff offered to settle for $25,000 to one where plaintiff demanded $450,000 to settle. Tush argues that the question of whether State Farm would have denied coverage is a question of fact for a jury, making the superior court's entry of summary judgment improper.

We have recognized "the strong societal interest in preserving insurance coverage for accident victims so long as the preservation is equitable for all parties involved." Therefore, absent prejudice, "regardless of the reasons for the delayed notice, there is no justification for exeusing the insurer from its obligations under the policy,"

The burden of showing prejudice from a delay in notice rests with the insurer, not the insured. "Generally proof of prejudice to the insurer is a question of fact."

Tush's State Farm policy requires the insured to promptly notify the insurer in the event of any occurrence that might result in a claim. The policy also states, "If a claim is made or suit is brought against any insured, you must see to it that we receive prompt written notice of the claim or suit." It is undisputed that notice of the Perez judgment against Tush was not made "promptly." The parties dispute the existence of any issues of genuine material fact as to whether State Farm was prejudiced by Tush's delay and whether State Farm might have accepted the claim regardless.

Owens cites many cases for the proposition that a delay of three and one-half years constitutes prejudice, arguing that State Farm would have denied the claim even if he had tendered it. However, in those cases the plaintiffs were suing their insurance companies. Here, State Farm is not a party to this appeal. Therefore, whether three and one-half years is "untimely" is irrelevant if no prejudice resulted to State Farm or if State Farm would have accepted the claim anyway.

1. There is no factual dispute that State Farm was prejudiced by the delay.

The parties agree that Tush delayed over three years in tendering the case to State Farm. Owens claims the delay in tendering the claim was unreasonable and every expert retained in the matter agrees, primarily because the delay prejudiced State Farm from being able to properly investigate and possibly settle the matter. Tush argues that the denial of participation in the settlement process is not sufficient to constitute prejudice and that even if it was, whether State Farm might have accepted the claim is a genuine issue of material fact in dispute.

The evidence of prejudice to State Farm is overwhelming. Wainscott, an expert retained by Tush's counsel, opined that "[i}t is clear that State Farm was prejudiced by the late notice since the opportunity to settle the claim for as little as $25,000 existed early in the case." In his supplemental report Wainseott stated further that "(there can be no question that State Farm's rights were prejudiced by the late notice. In 48 years of insurance experience, I don't believe I've ever seen a case with more evidence of prejudice to a carrier." And, Holmes, another of Tush's retained experts, also agreed: "In my mind, the fact that they could have possibly settled for a lesser amount than when they came into the case is prejudice." Reiman's expert agreed, noting State Farm suffered "extreme prejudice" and that the timely reporting requirement would have entitled them to deny that coverage if they so desired.

2. Whether State Farm would have denied a defense of the claim, even if prejudice did exist, is a disputed issue of material fact.

Owens argues that "State Farm's conduct is not relevant to Tush's legal malpractice case against Owens because this is not a coverage dispute between an insurer and an insured." However, because Owens is making a causation argument, in order to prevail on summary judgment he must show not only that State Farm was prejudiced but also that there is no genuine issue of material fact that State Farm would have denied the claim because of the prejudice. Owens has not met this burden.

To bolster his position, Owens produced an expert opinion from William Marr, a team manager for State Farm. In Marr's opinion, had Owens tendered the claim to State Farm six to eight months before trial, when he first agreed to represent Tush, State Farm likely would have denied the claim as untimely and as prejudicial to its ability to properly investigate. Tush responded with the expert opinion of Roger Holmes, who opined that Marr's prediction of how State Farm would have reacted was wrong: "I read what Mr. Marr said would have happened. And, in my opinion, that isn't what would have happened. They would have defended the case under a reservation of rights, or they would have defended it without a reservation of rights, if they decided that CHI counsel was too expensive." Expert witness Robert Wainscott also testified that State Farm would have most likely proceeded with a defense had Owens tendered the case, especially after the trial date was continued: "And at the point in time where Tom Owens had an extension of time ... I would have, I would have proceeded with the coverage." "I believe they would have accepted the tender, probably, under reservation of rights, I would guess. I'm just guessing. I'm guessing what I would have done if I was in their shoes."

In sum, even if State Farm suffered prejudice by the delay in tender, there is a genuine question of material fact as to whether State Farm might have accepted the tender of the Perez claim. In these circumstances, summary judgment on Owens's motion was improper.

v. CONCLUSION

Because genuine issues of material fact remain with regard to each of the four summary judgment motions, we REVERSE the decision of the superior court granting summary judgment and we REMAND this case for further proceedings.

FABE, Chief Justice, not participating.

      . Tush v. Perez, 3AN-93-7673 CI, 1997 WL 867786.

      . The following colloquy ensued:
      Q: Are any of the rental properties insured?
      A: Yes.
      Q: And with whom?
      A: -I'm not going to answer.
      Q: Do you have an agent-you're not willing to state who your agent is?
      A: No.
      .Q: Do you have an agent?
      Mr. Pharr: I think we've already answered this to the extent that we are going to answer it.
      Ms. Hood: This is the first time I've asked that particular question.
      Mr. Pharr: Go ahead and answer-ask your question.

      Q: My question is, do you have an insurance agent?
      A: I guess this is the fourth time you've asked me that.
      Q: And your answer is?
      A: I'm not going to answer.
      Q: Okay. Is your property particularly at 1201 Chugach insured?
      A: Yes.
      Q: And with whom is that insured?
      A: I'm not going to answer.

      . Pharr did answer these requests on behalf of Larry whom he still represented at this time. However, Pharr claims that because Larry was out of town and "hel had to do something" regarding the discovery, he "simply said [Larry] does not have any of these documents you want" and objected to the requests as overbroad. Pharr eventually withdrew from his representation of Larry as well.

      . Fitzgerald stated in an affidavit that no insurance policy was ever produced by Tush or any of her lawyers during the course of the Perez lawsuit.

      . Reiman subsequently settled with Tush and the court dismissed the cause of action against him with prejudice.

      . Lincoln v. Interior Reg'l Hous. Auth., 30 P.3d 582, 585-86 (Alaska 2001).

      . Id. at 586.

      . Cox v. Progressive Cas. Ins. Co., 869 P.2d 467, 468 n. 1 (Alaska 1994).

      . Id. (internal citation omitted).

      . Doe v. Hughes, Thorsness, Gantz, Powell & Brundin, 838 P.2d 804, 806 (Alaska 1992) (quoting Belland v. O.K. Lumber Co., 797 P.2d 638, 640 (Alaska 1990)).

      . Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1203 (Alaska 1998).

      . The complete exchange was as follows:
      Q: Miss Tush, do you have insurance for the rental properties?
      A: Yes.
      Q: And who is your agent, or do you have an agent?
      A: Yes.
      Q: And who is your agent?
      A: Conrad with State Farm.
      Q: Conrad at State Farm?
      A: Uh-huh.
      Q: And is he a local agent?
      A: Yes.
      Q: And does he insure all of your rental properties?
      A: No.
      Q: Which ones are uninsured?
      A: I don't have anything uninsured.
      Q: Oh, I see. Who else insures your rental properties?
      A: It used to be Home State, I don't know what they are called now.
      Q: So you have insurance policies with Conrad at State Farm and Home State?
      A: Yes.
      Q: Are there any other insurance agents with whom you have policies?
      A: No.
      Q: Are there any other insurance policies that you have with regard to the rental properties?
      A: No.
      Q: Okay. And you've already stated that you don't have copies of policies, are you aware of your coverage limits or any other information pertaining to those policies?
      A: I leave that up to the insurance agent and I talk to him about it.
      Q: Do you have insurance for 1201 Chugach?
      A: Yes.
      Q: Do you know the extent of the insurance, what type of insurance it is?
      A: It's valued at $20,000, if that's what you're referring to.
      Q: Is it liability insurance?
      A: No, it's just the value of the house.
      Q: Okay. Are your other insurance policies strictly insuring the value of the house?
      A: I really don't know.
      Q: Who has your policy on 1201 Chugach, Conrad or Home State?
      A: State Farm.
      Q: Have you ever dealt with an adjuster regarding your rental properties?
      A: No.
      Q: So you wouldn't know the name of the adjuster that you would deal with if there were to be an issue regarding your rental properties?
      A: No.
      Q: Okay.
      A: I've never had to contact one.
      Q: Okay. Have you ever had to make a claim on any of your policies for liability to tenants of any kind?
      A: No.

      . Haisley v. Grant, 486 P.2d 367, 370-71 (Alaska 1971) (holding that "the weight to be accorded to an expert's opinion is, for all practical purposes, exclusively within the province of the jurors as triers of the facts.").

      . Loyd v. Paine Webber, Inc., 208 F.3d 755, 760 (9th Cir.2000) (holding that in certain circumstances attorney had no duty to independently investigate whether clients were engaging in fraudulent conduct); Heine v. Newman, Tannenbaum, Helpern, Syracuse & Hirschtritt, 856 F.Supp. 190, 195 (S.D.N.Y.1994) (holding that attorney was not negligent in relying on representations made by client); Parksville Mobile Modular, Inc. v. Fabricant, 73 A.D.2d 595, 422 N.Y.S.2d 710 (N.Y.App.Div.1979) (noting that attorney generally should not be held liable for ignorance of facts client neglected to state); Milliner v. Elmer Fox & Co., 529 P.2d 806, 808 (Utah 1974).

      . 529 P.2d 806 (Utah 1974).

      . Id. at 808 (emphasis added).

      . 854 P.2d 595 (Utah App.1993).

      . Id. at 599-600 (reversing grant of summary judgment for defendant attorneys because a reasonable juror could have found that attorneys breached duty to Harline by failing to ask him about court orders needing attention or to investigate ongoing bankruptcy proceedings).

      . Pharr's second motion for summary judgment and Reiman's motion for summary judgment, in which Pharr and Owens joined, will be considered together in this section as both deal with similar issues of causation.

      . Sharp v. Fairbanks N. Star Borough, 569 P.2d 178, 183-84 (Alaska 1977).

      . Tush offered the expert opinion of David G. Sever, who worked for over thirty years in the insurance industry as a claims adjuster and an underwriting manager, for the proposition that the misrepresentations in the application would not provide a basis for State Farm to void coverage. Because Tush did not sign the application, according to Sever, she "made no written representations to the insurance company of any type or kind." Sever's opinion supports the conclusion that what action State Farm would have taken on discovering the misrepresentations is a question of fact for a jury. Pharr claims what State Farm would have done is immaterial, arguing that what is important is whether the policy could have been voided. This argument is unpersuasive, for in making his causation argument, Pharr must show that State Farm would have voided the policy to prevail. If State Farm might not have voided the policy, given the uncertainty of Tush's responsibility for the misstatements in the application, Pharr's alleged malpractice could have been the cause of loss to Tush.

      . See, e.g., Hawaiian Life Ins. Co., Ltd. v. Laygo, 884 F.2d 1300, 1303 (9th Cir.1989) (holding that insured who allegedly made misrepresentations is entitled to opportunity to explain actions and that relationship between insured and agent in filling out application should be developed on record). If the matter was to be determined by this court, however, each of these factual inferences would have to be resolved in favor of Tush as the nonmoving party.

      . 995 P.2d 668 (Alaska 2000).

      . For example, it is uncontested that similar misrepresentations appear on insurance applications Tush made from 1993 to 1998. Tush claimed that each time the insurance agent failed to ask her the pertinent questions.

      . Fejes v. Alaska Ins. Co., Inc., 984 P.2d 519, 522 (Alaska 1999) (quoting Sauer v. Home Indem. Co., 841 P.2d 176, 180 (Alaska 1992)).

      . 1d.

      . Allstate Ins. Co. v. Roelfs, 698 F.Supp. 815, 817 (D.Alaska 1987).

      . Fejes, 984 P.2d at 522.

      . Sauer, 841 P.2d at 181.

      . See Barkett v. Brucato, 122 Cal.App.2d 264, 264 P.2d 978, 986 (1953) (listing elements of wrongful eviction tort) (quoting RestaremEnt or Torts § 822 (1939)).

      . E.g., Stanback v. Westchester Fire Ins. Co., 68 N.C.App. 107, 314 S.E.2d 775, 779 (1984) (finding that policy covering "personal injury" which defined "personal injury" to include intentional torts that also had an exclusion for all intentional acts ambiguous and that such ambiguity should and would be resolved in insured's favor).

      . Weaver Bros., Inc. v. Chappel, 684 P.2d 123, 125 (Alaska 1984).

      . Id. (reversing grant of summary judgment in favor of insurer due to insurer's failure to offer no more than mere allegations of prejudice from insured's six-year delay in tendering claim under policy).

      . Id. at 126 (noting that "[the insurer is in a better position to demonstrate that its ability to investigate, defend or settle a claim has been impaired").

      . Id.

      . See, eg., AVCO Corp. v. Aetna Cas. & Sur. Co., 679 A.2d 323, 328 (R.I.1996) (holding that delay of two and one-half years did not constitute "immediate notice" as required by policy, as "no judicial holding or legal authority ... would equate immediate as meaning within two and one-half years thereafter"); Martinson v. Mass. Bay Ins. Co., 947 F.Supp. 124 (S.D.N.Y.1996) (holding two-year delay from notice of claims and fourteen-month delay from time action commenced untimely and upholding insurer's denial of coverage). Under New York law, however, "an insured's failure to comply with a notice-of-claim provision is generally a complete defense to actions against the insurer for coverage." Id. at 128 (citing Olin Corp. v. Ins. Co. of N. Am., 966 F.2d 718, 723 (2d Cir.1992)). Because Alaska law requires a showing of prejudice in addition to an insured's failure to comply, see Weaver Bros., 684 P.2d at 126 and supra text accompanying n. 33, New York law is generally inapplicable on this issue.