source: Caselaw Access Project

author: CARNEY, Justice.

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY and Kathy Berry, Appellants, v. Mary KENICK and Angelina Trailov, Appellees.
    Supreme Court No. S-16509
    Supreme Court of Alaska.
    January 25, 2019
    Gary A. Zipkin and Kristin E. Bryant, Guess & Rudd, P.C., Anchorage; Rebecca J. Hozubin, Hozubin Moberly Lynch & Associates, Anchorage; and Peter H. Klee, Sheppard, Mullin, Richter & Hampton, LLP, San Diego, California, for Appellant Allstate Insurance Company.
    Alfred Clayton, Jr., Clayton & Diemer, LLC, Anchorage, for Appellant Kathy Berry.
    Mark A. Sandberg, Law Office of Mark A. Sandberg, Anchorage; Dennis Mestas, Law Office of Dennis Mestas, Anchorage; and Myron E. Angstman, Angstman Law Office, Bethel, for Appellees Mary Kenick and Angelina Trailov.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

We are asked to determine the preclusive effect of a declaratory judgment in favor of an insurance company against its insured in federal court in a subsequent state court proceeding. The superior court concluded that the declaratory judgment had no preclusive effect on a negligent adjustment action brought in state court by the insured's assignees against the insurance company and its claims adjuster. The state action proceeded to an 11-day jury trial ending with a multi-million dollar verdict against the insurance company and its claims adjuster.

The insurance company and the adjuster raise a number of issues on appeal, but it is necessary for us to decide only one: the preclusive effect of the federal declaratory judgment. The declaratory judgment determined that the insurance company and the adjuster acted reasonably when they offered policy limits to settle the underlying claim against the insured. Because the insurance company's and adjustor's reasonableness in adjusting the insurance claim is a necessary element of a negligent adjustment tort, we hold that the assignees of the insured were precluded from relitigating this issue. The superior court therefore erred in denying the insurance company's and claims adjuster's motions for summary judgment, and we vacate the judgment against them.

II. FACTS AND PROCEEDINGS

A. Facts

In mid-September 2002 Charles Herron, who was under the influence of alcohol and not old enough to legally possess or consume it, was involved in a single-vehicle accident in Bethel. A 15-year-old passenger in Herron's vehicle, Angelina Trailov, was injured.

Herron was insured by Allstate Insurance Company. The policy provided liability coverage of up to $100,000 per person/$300,000 per occurrence, medical payments coverage of $25,000 per person, and underinsured motorist (UIM) coverage of up to $100,000 per person/$300,000 per occurrence.

Shortly after the accident Allstate was notified of Trailov's injuries and her liability claim against Herron. By the end of September Allstate received notice that attorney Michele Power represented Trailov in the matter. Allstate assigned Trailov's bodily injury claim to its in-house claims adjuster, Kathy Berry. Over the next few months Berry and Power corresponded regarding Trailov's claim; much of their communication related to obtaining medical records documenting Trailov's injuries.

Power made a "policy limits demand plus attorney's fees, costs and interest" for Trailov's claim in a February 14, 2003, letter to Berry. In the same letter Power also for the first time asserted a separate negligent infliction of emotional distress (NIED) claim on behalf of Mary Kenick, Trailov's mother. Power made "a policy limits demand plus attorney's fees, costs and interest" for Kenick's NIED claim.

In March Berry responded to Power's February demand letter. Berry requested additional information about any treatment Trailov had received since the accident. She also asked for information about Kenick's NIED claim.

Power responded in April that Kenick had taken a new job because of her emotional distress from the accident (and had taken a substantial pay cut); however, Power noted that Kenick had not sought counseling. Power asserted that Trailov had been absent-minded and forgetful since the accident and disclosed for the first time that Trailov was suffering back pain from the accident. In closing Power wrote: "While the offer dated February 14, 200[3], remains open, it will be revoked on May 16, 2003, and a complaint will be filed, unless there is some discussion regarding pre-filing resolution."

On May 9 Berry responded to Power that "[w]e are in the process of completing our evaluation of Angelina Trailov's claim and anticipate responding to your demand by your May 16, 2003 deadline." Berry stated she needed additional support for Kenick's NIED claim.

On May 15 Power sent Berry two pay stubs for Kenick as proof of her NIED claim;

there was no mention of the May 16 deadline in the letter. On May 16 Berry sent another letter to Power requesting additional information about Kenick's job change and its relationship to the NIED claim. Berry also advised that Allstate's evaluation of Trailov's claim was not complete: "Our evaluation will be completed by the end of the month, and I am hoping to respond to your demand sooner than that."

Berry referred the entire claim to a higher-ranking claims adjuster for evaluation. That adjuster directed Berry to open a UIM claim for Trailov because, based upon her knowledge of similar claims in the Bethel area, Trailov would likely receive the $100,000 policy limit on the UIM claim as well as the underlying liability limit of $100,000. But the second adjuster suggested offering $10,000 for the NIED claim because she did not believe there was sufficient information to determine its value.

On May 29, 2003, an attorney from the Law Office of Dennis Mestas wrote to Berry that he had been retained as co-counsel to file suit on behalf of Kenick and Trailov. The letter stated that the policy limits offer had lapsed on May 16 and that no further policy limits offers would be made or accepted. The following day Berry wrote to Power offering to settle Trailov's bodily injury claim for $112,500, encompassing policy limits plus attorneys' fees. Berry also offered to settle Kenick's NIED claim for $10,000 in an effort to resolve the matter expeditiously, but she advised that if the offer was not accepted she would need additional documentation for the claim.

B. Proceedings

Three pleadings, and the proceedings related to them, define the current appeal. The first pleading is Kenick's and Trailov's personal injury and NIED complaint against Herron filed in June 2003 in the superior court in Bethel. The second is Allstate's March 2004 federal complaint against Herron for declaratory relief. And the third pleading is the complaint filed by Kenick and Trailov as Herron's assignees against Allstate in April 2004 in the superior court in Bethel.

In their June 2003 personal injury complaint against Herron, Kenick and Trailov sought both compensatory and punitive damages for injuries and distress resulting from the September 2002 accident. Herron resolved Kenick and Trailov's personal injury action against him in early April 2004 by signing a consent to entry of judgment. Herron consented to judgment in favor of Kenick, on behalf of her minor daughter Trailov, for $1,750,000 on Trailov's liability claims and attorneys' fees and consented to judgment in favor of Kenick for $187,500 on her NIED claim and attorneys' fees. The total judgment entered against Herron was $1,937,500. He also assigned to Kenick and Trailov any and all legal claims he possessed against Allstate. Herron and Kenick, individually and on behalf of Trailov, also entered into a covenant not to execute on any of Herron's assets other than the potential proceeds from the assigned claims against Allstate.

Meanwhile in early March 2004 Allstate filed a complaint for declaratory relief in the U.S. District Court for the District of Alaska in anticipation of Herron confessing judgment in the accident-related personal injury suit. Allstate requested a declaration that "its good faith attempt to settle Trailov and Kenick's claims satisfied its obligation to its insured, and a further declaration that Allstate [wa]s not obligated to pay any portion of the confessed judgment that exceed[ed] the limit of the bodily injury coverage afforded Herron under the [p]olicy." In late May, due to Herron's April confession of judgment and assignment of claims, Allstate amended its federal complaint for declaratory relief. The only material addition was the statement that Herron had confessed judgment and assigned his rights against Allstate.

In April 2004, shortly after Herron's confession of judgment, Kenick and Trailov, as his assignees, filed a complaint against Allstate and Berry in the Bethel superior court. Kenick and Trailov asserted that Allstate and Berry had negligently and recklessly adjusted the claims arising from the accident and by doing so they had exposed Herron to a large nondischargeable liability. Kenick and Trailov argued that as Herron's assignees they were entitled to compensatory damages in the amounts agreed to in the confessed judgments and to punitive damages in an amount to be determined by a jury. The superior court action was stayed during the pendency of the federal declaratory action.

In late June 2004 Herron answered Allstate's declaratory complaint; Kenick and Trailov were not parties to that action. Herron asserted a number of affirmative defenses, including an allegation that "the plaintiff's damages, if any, are the result, in whole or in part, of its negligence, or that of others for whom the defendant is not responsible." He also alleged that Allstate had breached the insurance contract.

In early December 2004 Allstate filed a second amended complaint for declaratory relief, seeking declarations that Herron breached the insurance contract when he confessed judgment and assigned his rights and that his "breach was not excused by any prior material breach by Allstate" and thus "voided the insurance contract." Later that month Allstate filed a notice ratifying Berry's conduct and actions as an Allstate employee.

Berry was Allstate's first witness in the federal trial, held in June 2008. After describing her employment in 2002-03, she discussed her evaluation of Kenick's and Trailov's claims. She was cross-examined about actions she took relating to her determination of the claims' reserves, company standards and legal requirements for documenting her file, and the language of her communications with Power from February to May 2003. Berry was also questioned about alleged delays in obtaining medical records relevant to evaluating Trailov's claim; her delay in responding to Power's communications; the lack of documentation about when she evaluated Trailov's claim; and the lack of an apparent reason why Trailov's claim could not have been evaluated by May 16, Power's purported deadline to avoid a lawsuit. In response to questioning about the meaning of Power's April letter, Berry testified that she believed it required either that Allstate agree to settle for policy limits or that it engage in settlement discussions. Berry testified that she believed that discussion of settlement in her May 9 and May 16 letters satisfied the terms of the April letter.

Allstate called Charles Bean as an expert in handling insurance claims. Bean testified that Allstate's claims handling from February 14 to May 31, 2003, met industry standards. Bean also testified to his understanding of the communications between Berry and Power, including the meaning of Power's April letter. Bean opined that Berry's evaluation of Trailov's claim was of a high quality and that Berry's documentation in the claims log was acceptable. Bean also believed Allstate had acted appropriately to protect Herron's interests. On cross-examination Bean agreed that Allstate had a duty to protect Herron and conduct an investigation. He conceded that it was unclear when Berry performed her evaluation of Trailov's claim and that Allstate "could" have done the evaluation prior to May 16.

Allstate also called Power as a witness. Power conceded that her April letter was too imprecise for Berry to rely on and that the letter's meaning was unclear.

At the close of evidence, after instructing the jury that Allstate had the burden of proof in the matter, the court further instructed that:

An insurer is bound to exercise that degree of care which an insurer of ordinary prudence would exercise. Insurance is a profession with skill in the investigation and settlement of liability claims. It is not an extraordinary degree of care, but the care that a reasonable insurer is required to exercise under the circumstances.

The court next instructed the jury:

In response to a policy limits demand, an insurer owes a duty to its insured to offer the full policy limits available when the insurer knows or should know that there is a substantial likelihood of an excess verdict against that insured.

These were the only substantive legal instructions given to the jury in the 13 closing instructions.

Only a single question was submitted to the jury: "Considering all the facts and circumstances contained in the evidence submitted to you, did Allstate act reasonably by offering policy limits on May 30, 2003?" The jury answered the question "yes" and returned the verdict in favor of Allstate.

The federal court entered judgment that "Allstate did act reasonably by offering policy limits on May 30, 2003." Allstate moved to amend the judgment; the federal court granted Allstate's motion in February 2009. The amended judgment stated:

1. The jury returned a verdict in favor of Allstate on June 11, 2008, finding that under all the facts and circumstances Allstate acted reasonably by offering policy limits on May 30, 2003.
2. It is undisputed that Herron breached the insurance contract by consenting to entry of judgment and assigning his rights without Allstate's consent.
3. Pursuant to the jury's verdict, Herron's breach was not excused by any prior breach by Allstate.
4. Herron's breach voided the insurance policy's liability coverage.
5. Herron's assignment of rights to Trailov and Kenick is null and void because Herron had no rights to assign as of the date of the assignment.

Herron appealed to the Ninth Circuit Court of Appeals in March 2009. He argued that the district court's exercise of jurisdiction was improper, the court erred in not granting Herron's motions for summary judgment or directed verdict, the court erred in excluding evidence concerning other claimed breaches by Allstate, and the judgment was improperly amended.

The Ninth Circuit ruled in March 2011 that the district court had not improperly exercised its jurisdiction over Allstate's suit for declaratory relief. After addressing Herron's argument that the district court had improperly exercised jurisdiction, the Ninth Circuit stated:

The issues in this suit and the tort suit overlap solely because Kenick and Trailov's rights against Allstate are entirely derivative of Herron's rights under his insurance agreement. The jury's declaration of Allstate's reasonableness pertains to Alaska law defining an insurer's contractual obligations to its insured, not tort law. That declaration may well be fatal to Kenick and Trailov's tort claims against Allstate, but only because an unexcused breach of the contract by Herron may have thus prevented him from assigning any rights against Allstate to Kenick and Trailov in the first place. At bottom, Allstate's suit sounds in contract, not tort, regardless whether the merits of this action have become entwined with a defense Allstate may potentially raise to Kenick and Trailov's derivative tort action.[ ]

The Ninth Circuit held that the district court had abused its discretion by amending the judgment to include paragraphs 4 and 5. The jury had not considered whether Herron's breach prejudiced Allstate enough to void the insurance policy's liability coverage. And without a finding of prejudice, Allstate was not relieved of its liability up to the policy limits. The appeals court then found that entering paragraph 5 of the judgment was an abuse of discretion, stating: "[B]ecause Allstate remains liable to Herron within the insurance policy's limits, Herron retained assignable rights against Allstate to the extent of that liability."

On remand the district court granted partial summary judgment on the issue of prejudice in favor of Herron. The district court found that, as a matter of law, Herron's confession of judgment had not prejudiced Allstate and thus had not voided Allstate's obligation to indemnify him up to the policy limits. The court entered a second amended final judgment in July 2012. It removed paragraphs 4 and 5 of the first amended final judgment and added a new paragraph 4: "Herron's breach did not prejudice Allstate, therefore it did not void the liability portion of the insurance policy."

Following the conclusion of the federal case, the superior court lifted its stay of the state proceedings. In July 2012 Allstate moved to dismiss the state court case, arguing that Herron's assignment of claims to Kenick and Trailov was invalid and that Kenick's and Trailov's claims had been conclusively determined in the federal case. Berry joined Allstate's motion. Kenick and Trailov responded that the federal court's holding that Allstate was not prejudiced by Herron's breach meant that the assignment had not been voided. They filed a cross-motion for summary judgment, arguing they were not precluded from litigating their negligent adjustment claim because this claim had not been adjudicated on the merits to a final judgment in the federal declaratory action.

In March 2013 the superior court denied Allstate's motion-which it treated as a summary judgment motion -and granted Kenick and Trailov's cross-motion for summary judgment. The court found that identical issues had not been decided in the federal declaratory action; it therefore held that issue preclusion did not preclude litigation of the negligent adjustment claim. The court stated that the federal court had not "decide[d] any issues of Alaska law outside of that defining Herron and Allstate's contractual relationship" and that the issue of negligence was not identical to any issue decided in the federal declaratory action.

Allstate and Berry both appeal the superior court's ruling; they argue that the determination of their reasonableness-and by implication whether they were negligent-was precluded by the federal declaratory judgment. Because we hold that Kenick and Trailov were precluded from relitigating the issue of Allstate and Berry's reasonableness as it relates to the negligent adjustment claim, we do not discuss any later superior court proceedings.

III. STANDARD OF REVIEW

The applicability of issue preclusion "is a question of law subject to independent review." "We therefore review de novo whether the elements of [issue preclusion] are met."

IV. DISCUSSION

Issue preclusion "bars the relitigation of issues actually determined in [earlier] proceedings." Issue preclusion prohibits a party from relitigating an issue of fact if the following four factors are met:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action;
(2) the issue precluded from relitigation is identical to the issue decided in the first action;
(3) the issue was resolved in the first action by a final judgment on the merits; and
(4) the determination of the issue was essential to the final judgment.[ ]

A. Kenick And Trailov Are In Privity With Herron, Who Was A Party To The Federal Action.

Kenick and Trailov concede that they are in privity with Herron as his assignees and that he was a party to the federal declaratory judgment action. The first factor is therefore satisfied. Their concession is also in accord with the approach adopted by the Restatement (Second) of Judgments.

B. The Issue Of "Reasonableness" Is Identical In Both The Federal And State Proceedings.

We now consider the second issue preclusion factor: identity of the issue. In the federal proceeding, the jury was asked to determine whether Allstate and Berry acted reasonably by offering policy limits on May 30. The jury was instructed on the standard of care for an insurer in adjusting claims and on an insurer's duties to respond to a policy limits demand and protect its insured. The jury made a factual finding that Allstate acted reasonably by offering the policy limits on May 30. The question before us is whether this determination of reasonableness is identical to the determination of reasonableness required in the state court action.

In evaluating this factor we have applied the analysis suggested in commentary to the Restatement (Second) of Judgments for resolving identity issues. To determine whether the issue resolved in the federal action is identical to the issue in the state action, we weigh a number of considerations, including:

Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? Could pretrial preparation and discovery relating to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? How closely related are the claims involved in the two proceedings? [ ]

No party has identified, nor can we discern, any difference between the pretrial preparation and discovery for the federal action and what could reasonably be expected in the state court action.

The federal jury was tasked with deciding a single issue of fact: it found that Allstate had acted reasonably by offering the policy limits on May 30. This factual finding allowed the federal court to conclude that Herron's breach of the contract was not excused. But the jury instructions indicate that the determination of reasonableness foreclosed any possibility of a claim that Allstate had breached the covenant of good faith and fair dealing.

As we discussed in Lockwood v. Geico General Insurance Co. , all contracts carry an implied duty of good faith and fair dealing. This gives the insured both a cause of action that sounds in contract and one that sounds in tort. In Lockwood we stated that "our precedent makes clear that the element of breach at least requires the insured to show that the insurer's actions were objectively unreasonable under the circumstances." The parties do not appear to dispute that the federal jury's determination that Allstate acted reasonably in offering a policy limits demand on May 30 forecloses Kenick and Trailov from pursuing a tort claim based on a breach of the duty of good faith and fair dealing.

But the jury's finding that Allstate acted reasonably likewise forecloses any claim for negligent adjustment. To find that Allstate or Berry committed the tort of negligent adjustment, a fact finder would need to find that Berry had been negligent-that she had breached the tort duty of reasonable or ordinary care -by not agreeing to settle for policy limits before May 30. A finding that she was negligent would be inconsistent with the federal jury's determination that Allstate, which had ratified its employee Berry's conduct, acted reasonably by offering policy limits on May 30.

While the evidence and argument for each involve application of different rules of law, Kenick's and Trailov's two claims and legal theories remain entwined. The tort of negligent adjustment is an independent cause of action that may be separate from a claim based on the insurance contract, but a negligent adjustment claim stems in part from the contractual relationship between an insured and an insurance company. An adjuster's duties to the insured do not arise from an insurance contract because an adjuster is not a party to the contract. But for the adjuster to owe the insured a duty to act with reasonable care, a contractual relationship must exist. Absent a contractual relationship between an insurance company and an insured, an adjuster would owe no duty. Kenick and Trailov focus on the fact that Berry was not a party to the federal action, but they ignore that Allstate ratified Berry's conduct and that Berry's actions as Allstate's in-house adjuster were at issue in the federal action. It was her conduct on Allstate's behalf that the federal jury found to be reasonable.

The evidence and argument to be advanced in the state proceeding overlap significantly with that which was advanced in the federal declaratory action. The focus of the litigation in both proceedings, as shown by the available record of the federal proceeding and as outlined in the underlying complaint, is Berry's actions or omissions in evaluating Trailov's bodily injury claim and Kenick's NIED claim, with particular focus on what Berry did after receiving Power's February demand letter and the letter with the May 16 deadline.

Weighing all of these considerations, we hold that the federal jury's determination that Allstate acted reasonably in offering policy limits on May 30 encompasses the issue of fact that Berry, as Allstate's employee, acted reasonably in offering policy limits on May 30.

C. The Issue Of Allstate's Reasonableness Was Resolved In A Final Judgment On The Merits.

Kenick and Trailov argue that "no tort issues were decided in the federal case, [only] a series of contract issues were decided." But this argument seemingly conflates the identity of issues factor with the final judgment factor for determining whether issue preclusion applies. The relevant inquiry here is whether the issue had "actually be[en] litigated." We have identified the issue of fact-that Allstate acted reasonably. Because this issue was determined by a federal jury, "the issue was resolved in the first action by a final judgment on the merits."

D. The Determination Of Allstate's Reasonableness Was Essential To The Final Judgment.

The fourth and final factor in determining whether issue preclusion applies is whether the issue was essential to the final judgment in the federal case. Allstate's reasonableness was the only issue of fact resolved by the federal jury. It therefore was essential to the federal court's declaration that Allstate had not breached the insurance contract and that Herron's breach was not excused. If the federal jury had returned a verdict that Allstate had not acted reasonably, Allstate would have been in breach and Herron's breach would have been excused.

Because all four factors of issue preclusion are met, Kenick and Trailov are precluded from relitigating the issue of reasonableness. An essential element of the tort of negligent adjustment is the lack of reasonable care; the federal jury found that there was no such lack. The superior court erred in denying Allstate and Berry's motion to dismiss.

V. CONCLUSION

We VACATE the jury's verdict and resulting judgment. We REVERSE the superior court's order denying the motion to dismiss and REMAND for dismissal of the complaint consistent with this opinion.

      Allstate Ins. Co. v. Herron , 634 F.3d 1101, 1108 (9th Cir. 2011).

      Id. (citing Cont'l Ins. Co. v. Bayless & Roberts, Inc. , 608 P.2d 281, 293 (Alaska 1980) ).

      Id. at 1112-13.

      Id.

      Id. at 1113.

      Id.

      The court noted that because matters outside of pleadings were presented in Allstate's motion to dismiss, it was treating it as a motion for summary judgment. See Alaska R. Civ. P. 12(b).

      Allstate and Berry continued to raise arguments throughout the subsequent state court proceedings that Kenick and Trailov's negligent adjustment claim was precluded by the federal decision. None of the court's later rulings disturbed the reasoning outlined in the court's order denying Allstate's motion to dismiss and granting Kenick and Trailov's cross-motion for summary judgment.

      Lane v. Ballot , 330 P.3d 338, 341 (Alaska 2014).

      Id.

      Latham v. Palin , 251 P.3d 341, 344 (Alaska 2011) (alteration in original) (quoting Jeffries v. Glacier State Tel. Co. , 604 P.2d 4, 8 n.11 (Alaska 1979) ).

      Id . (quoting Midgett v. Cook Inlet Pre-Trial Facility , 53 P.3d 1105, 1110 (Alaska 2002) ).

      "A judgment in an action that determines interests in ... personal property ... [h]as preclusive effect upon a person who succeeds to the interest of a party to the same extent as upon the party himself." Restatement (Second) of Judgments § 43 ( Am. Law Inst . 1982). "A judgment in an action by either the assignee or the assignor against the obligor of an obligation that has been assigned precludes a subsequent action on the obligation by the other of them if the person maintaining the action had power to discharge the obligation." Id. § 55.

      Powercorp Alaska, LLC. v. Alaska Energy Auth. , 290 P.3d 1173, 1182 (Alaska 2012), as amended on reh'g (Jan. 7, 2013) (citing Restatement (Second) of Judgments § 27 cmt. c ( Am. Law Inst . 1982) ).

      Id. (quoting Restatement (Second) of Judgments § 27 cmt.c ( Am. Law Inst . 1982) ).

      Cf. id. at 1182-83. During the state court trial it was clear there was a tremendous amount of overlap of discovery and the evidence that was presented. However, in analyzing this issue, we place ourselves in the same position as the superior court at the time of the motion to dismiss and cross-motion for summary judgment.

      323 P.3d 691, 697 (Alaska 2014).

      Id. at 697 n.19.

      Id. at 697.

      See C.P. ex rel. M.L. v. Allstate Ins. Co. , 996 P.2d 1216, 1220 (Alaska 2000) (quoting Cont'l Ins. Co. v. Bayless & Roberts, Inc. , 608 P.2d 281, 287 (Alaska 1980) ) (stating that an insurance adjuster "could be held liable for negligence arising out of a breach of the general tort duty of ordinary care").

      Id. at 1220-22 (Alaska 2000) ("[W]e recognize[ ] that an insurance adjuster owes a duty of care to the insured which is independent of any contractual obligation arising out of the insurance policy, and that a breach of this duty is actionable." (quoting Sauer v. Home Indemn. Co. , 841 P.2d 176, 184 (Alaska 1992) ) ); Cont'l Ins. Co. , 608 P.2d at 287-88, 288 n.10 (stating adjuster "could not be held liable for a breach of the fiduciary duty of good faith arising out of the insurance contract, but he could be held liable for negligence arising out of a breach of the general tort duty of ordinary care").

      Cf. C.P. ex rel. M.L. , 996 P.2d at 1220-21.

      See Powercorp Alaska, LLC v. Alaska Energy Auth. , 290 P.3d 1173, 1182 (Alaska 2012), as amended on reh'g (Jan. 7, 2013).

      Cf. id. at 1182-83.

      As we noted, the second factor of the four-factor issue preclusion test is whether the precluded issue is "identical to the issue decided in the first action"; the third factor is whether that issue "was resolved in the first action by a final judgment on the merits." See supra 944 (quoting Latham v. Palin , 251 P.3d 341, 344 (Alaska 2011) (quoting Midgett v. Cook Inlet Pre-Trial Facility , 53 P.3d 1105, 1110 (Alaska 2002) ) ).

      In re Adoption of A.F.M. , 15 P.3d 258, 268 n.46 (Alaska 2001).

      Id.

      Cf. Powercorp Alaska, LLC. , 290 P.3d at 1183.

      See C.P. ex rel. M.L. v. Allstate Ins. Co. , 996 P.2d 1216, 1220-21 (Alaska 2000) ; Cont'l Ins. Co. v. Bayless & Roberts, Inc. , 608 P.2d 281, 287 (Alaska 1980).


text:
    STATE of Alaska, Petitioner and Cross-Respondent, v. Dana R. THOMPSON, Respondent and Cross-Petitioner.
    Supreme Court Nos. S-16624/16643
    Supreme Court of Alaska.
    January 25, 2019
    Tamara E. DeLucia, Chief Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Petitioner and Cross-Respondent.
    Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Respondent and Cross-Petitioner.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   CARNEY, Justice.

I. INTRODUCTION

Dana Thompson was convicted of 13 counts of first degree sexual abuse of a minor and 4 counts of second degree sexual abuse of a minor stemming from a 4-year sexual relationship with the daughter of a family friend. The first degree sexual abuse of a minor convictions were based on the alternative theories that Thompson either (1) occupied a "position of authority" over the victim or (2) resided in the same household as the victim and had authority over her.

Thompson argued to the court of appeals that Wurthmann v. State , the leading case interpreting the phrase "position of authority," was wrongly decided. He alternatively argued that the jury was improperly instructed about the meaning of the phrase "position of authority" under Wurthmann . The court of appeals rejected both arguments.

Thompson also argued to the court of appeals that the superior court erred by failing to merge many of his convictions. The court of appeals rejected his argument that the rules for merger in sexual abuse of a minor cases should be different than the rules for merger in sexual assault cases. The court reaffirmed that for both types of cases the unit of prosecution is the distinct act of sexual penetration of different bodily orifices. But the court of appeals found that the superior court had misapplied the rules for merger and held that Thompson's convictions for digital penetration, penis-to-genital penetration, and penetration with an object during the same time period merged because the same orifice was involved and the evidence was ambiguous as to whether each act "accompanied" the other acts.

The State petitioned for review of the court of appeals' merger ruling, advocating a rule allowing separate convictions for penetration with different objects or body parts, regardless of the time period. Thompson cross-petitioned. He argues that the court of appeals' rulings on "position of authority"-affirming Wurthmann and concluding that the jury was properly instructed-were erroneous; he also argues that the unit of prosecution for merger purposes should be the "sexual episode" and that many of his convictions should therefore merge.

We affirm the court of appeals' decision on both "position of authority" issues. We reject Thompson's argument that the unit of prosecution for sexual abuse of a minor cases and sexual assault cases should be different, and that more of his convictions should therefore merge. We extend our recent decision in Johnson v. State and hold that separate convictions and sentences may be imposed for each distinct act of penetration when either the penetrating object or body part or the penetrated orifice has changed. We reverse the court of appeals' holding that Thompson's convictions for digital penetration, penis-to-genital penetration, and penetration with an object during the same time period merged.

II. FACTS AND PROCEEDINGS

We adopt the facts outlined in the court of appeals' opinion. We reproduce here the facts most relevant to the petitions before us:

When Dana Thompson was in his mid-forties, he maintained a sexual relationship with a teenage girl, J.C., from the time she was 14 years old (June 2005) until close to the time she was 18 (in the fall of 2008). Thompson was able to do this because he was living with, and taking care of, his mother Rita, and because J.C.'s mother Laura[ ]... often entrusted J.C. to Rita's care and, later, to Thompson's care for various purposes.
....
Despite their lack of familial relation, J.C. would call Rita "Grandma Rie," and she would call Thompson "Uncle Dana."
In 2004, Laura and J.C. moved to a remote cabin in Trapper Creek.... J.C. was home-schooled, and after this move she rarely interacted with children her own age.
Also in 2004, Thompson moved in with his mother Rita. They lived in Rita's trailer, where Thompson had his own room.
In 2004 and 2005 (when J.C. was 13 and 14 years old), she would stay in Rita's trailer from one to five times per month .... Sometimes, Laura would drop J.C. off at Rita's trailer and return to Trapper Creek. During this time, Laura came to view Thompson as J.C.'s "personal bodyguard[,"] and she entrusted him with making sure that no harm came to J.C. while the girl was staying in Anchorage.
....
When J.C. turned 14, Thompson began talking to J.C. about pornography and master-slave relationships. Thompson also showed J.C. adult pornography.
Beginning in 2005, Thompson's mother Rita began to experience a series of health problems that made it difficult for her to walk, so Thompson became Rita's caregiver. Thompson also became the person who was primarily in charge of maintaining the residence and looking after J.C. ...
In June 2005, while J.C. was staying at the trailer, she and Thompson had their first sexual encounter. Thompson pulled J.C. onto his lap, shoved his hand down J.C.'s pants, and touched her genitals. J.C. started crying, and she curled up in a ball. When J.C. returned home to Trapper Creek the next morning, she did not tell anyone what happened because she was scared.
A week later, J.C. returned to Anchorage to stay at Rita's trailer for about two months (without her mother). J.C.'s home schooling program required her to obtain a job to earn "life skills" credit. To enable J.C. to fulfill this requirement, Thompson arranged a job for her at an Anchorage store.... J.C. also enrolled in a computer camp during this two-month stay in Anchorage.
On June 27, 2005, during the time that J.C. was staying at the trailer, Thompson's mother Rita was hospitalized. When Thompson returned to the trailer from the hospital, Thompson woke J.C. and demanded that she perform oral sex on him. Thompson also digitally penetrated J.C. and rubbed his penis against her body.
After the events of June 27, 2005, Thompson began engaging in more sexual activity with J.C. ...
On J.C.'s [15th] birthday, she and Thompson went to Planned Parenthood so that J.C. could obtain birth control. After leaving Planned Parenthood, J.C. and Thompson had multiple types of sexual intercourse.
After J.C. turned 15, she started staying more often at Rita's trailer without her mother, because her school work often required her to be in Anchorage. J.C.'s mother Laura would often communicate with Thompson to make sure that J.C. was completing her course work. During this time, J.C. and Thompson talked about getting married and having a family.
In the summer of 2006, J.C. spent approximately one continuous month living at the Anchorage trailer in order to prepare for a backpacking trip.... Thompson helped J.C. with her school work and he also helped her physically train for her backpacking trip. During this time, J.C. and Thompson repeatedly had sex.
After J.C. returned from the backpacking trip, Thompson began renovating his room in the trailer to isolate it from the main part of the trailer, thus making it easier to hide his sexual relationship with J.C.
By the time J.C. was 16 years old, she was alternating every two weeks between living with her mother in Trapper Creek and living at the Anchorage trailer with Thompson and Rita.
Thompson's relationship with J.C. came to light in the summer of 2008.... J.C. eventually told her mother all that had happened between her and Thompson in Anchorage. Laura called the police, and this initiated the criminal investigation.
....
... [T]he State charged Thompson with [18] counts of sexual abuse of a minor in the first degree (covering the time when J.C. was under the age of 16), based on the alternative theories that Thompson was either in a position of authority over J.C. or residing in the same household with her (or both).
The State also charged Thompson with [10] counts of second-degree sexual abuse of a minor (covering the time when J.C. was between 16 and 18 years old), based on the theory that Thompson was in a position of authority over her.[ ]

Thompson's case was tried in late May and early June 2010. In its closing argument the State emphasized that whether Thompson had knowingly engaged in sexual penetration with J.C., and whether she was under 16 and he was over 18 at the time, were not in dispute. The parties disputed only whether Thompson, at the time of the offense, either was in a position of authority in relation to J.C., or resided in the same household as her and had authority over her.

The relevant statute, AS 11.41.434(a)(3), provides:

An offender commits the crime of sexual abuse of a minor in the first degree if ... being 18 years of age or older, the offender engages in sexual penetration with a person who is under 16 years of age, and
(A) the victim at the time of the offense is residing in the same household as the offender and the offender has authority over the victim; or
(B) the offender occupies a position of authority in relation to the victim.[ ]

Another statute, AS 11.41.470(5), defines "position of authority" as: "an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter, or a substantially similar position, and a police ... or probation officer [in certain circumstances]."

The State pointed out to the jury that "[t]here are two theories, the first is that she resided with him and he had authority over her, ... [and the second is] that he occupied this position of authority that's set out in the definitions." In its consideration of the position of authority requirement, the State suggested that the jury "think of what ... a position substantially similar to a babysitter would be"; it revisited this theme throughout closing arguments.

Thompson's argument recited the examples of position of authority from the statute and then urged the jury to focus on the fact "that each and every one of these positions is a professional or a quasi professional role. These aren't laypeople. You notice that parent [or] relative isn't included in here. These are people who have some position of authority by virtue of the title that they hold." Thompson argued that the evidence showed that Laura would not have entrusted J.C. to Thompson's care; that J.C. did not believe that Thompson was her babysitter or had authority over her; and that Rita, not Thompson, was the authority in the home when J.C. was at the trailer.

During deliberations the jury asked three substantive questions. The jury's first question was: "Instruction #31 could you please clarify 'substantially.' If someone though[t] 'slightly' similar to one or more examples would this qualify?" After discussing the question with parties, the superior court responded: "Please refer to Instruction 31." A few hours later the jury asked: "Does 'substantially similar position' pertain to the listed titles, or does it leave it open to our consideration of a broader list of authority figures/roles." After again discussing the question and the statute's legislative history with the parties, the court responded: "The jury may consider a broader list of authority figures/roles in its deliberation but the roles must be substantially similar, not slightly similar, to the list in instruction #31." The next day, the jury asked a question about the definition of the term "residing." After discussing the question with the parties, the court responded: "The definition of residing is a question of fact for the jury. Please refer to instruction number 2. Sorry I could not be of more assistance."

The jury convicted Thompson of 13 of the 18 counts of first degree sexual abuse and 4 of the 10 counts of second degree sexual abuse.

Thompson appealed the trial court's decision regarding the meaning of "position of authority" and related jury instructions, its refusal to merge some of his convictions for sentencing, and his sentence. The court of appeals declined to revisit its interpretation of "position of authority" and affirmed the trial court's jury instructions, but reversed some of the merger decisions and remanded for resentencing.

The State petitioned for our review of the court of appeals' treatment of the merger issues, urging us to define the unit of prosecution in sexual abuse cases as penetration by a distinct object or body part regardless of whether the same orifice was penetrated. Thompson opposed the State's petition and filed a cross-petition, asking us to reexamine both the court of appeals' interpretation of "position of authority" and the trial court's and court of appeals' application of merger principles to his convictions. We granted both petitions.

III. STANDARD OF REVIEW

Statutory interpretation involves questions of law to which we apply our independent judgment. We review "[t]he correctness of jury instructions ... de novo." "Whether two convictions should merge on double-jeopardy grounds is a mixed question of law and fact." We review de novo "[t]he ultimate legal question of merger under the double-jeopardy clause"; we review for clear error "the questions of fact underlying the conviction for the specific counts of statutory violations."

IV. DISCUSSION

A. The Facts Of Thompson's Case Do Not Implicate Wurthmann v. State .

Thompson first asserts that Wurthmann v. State was wrongly decided and that we should "hold that 'position of authority' is limited to people in professional or quasi-professional roles that are either listed in the statute or are substantially similar to the professional or quasi-professional positions listed in the statute."

In Wurthmann the defendant was convicted under former AS 11.41.438(a)(2) of third degree sexual abuse of a minor for having sexual intercourse with the daughter of the woman with whom he lived when the victim was 16 and 17 years old. Wurthmann argued that his convictions should be reversed because he did not occupy a "position of authority" over the victim, as required by the statute. The court of appeals, however, noted that Wurthmann had "assumed the role of [the victim's] stepfather" and "primary caretaker." Under these circumstances, the court of appeals determined that a "live-in boyfriend who assumes the position of a stepfather" might exert enough influence over the victim to occupy a position of authority as it applies to the sexual abuse context.

In contrast, Thompson was charged under alternative theories of first degree sexual abuse of a minor for engaging in sexual penetration with J.C. when she was under the age of 16. The indictment alleged that at the time of the offenses, either she resided in the same household with Thompson and he had authority over her, or else he occupied a position of authority in relation to her. The State did not allege, as in Wurthmann , that Thompson's authority was based upon his assuming "the role of [the victim's] stepfather."

Thompson argues that Wurthmann was wrongly decided and should be overturned, asserting that "position of authority" under AS 11.41.434(a)(3)(B) should be limited to professional or quasi-professional adults who have authority over an underage person by virtue of their profession. But AS 11.41.470(5) defines the term to mean "employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter , or a substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor." The statute does not require the adult to occupy a professional or quasi-professional position.

We do not find it necessary to revisit Wurthmann , as doing so would not invalidate Thompson's convictions. First, the State argued that, as J.C.'s "city guardian," Thompson filled a role in her life substantially similar to that of a babysitter pursuant to AS 11.41.470(5). The court of appeals noted that the evidence showed that Thompson "effectively functioned as J.C.'s surrogate parent or full-time sitter for weeks, and even months, while J.C. was living in Anchorage, away from her mother." Thompson has not challenged the sufficiency of the evidence on this point; he also has not clearly explained how disavowing Wurthmann 's holding that "position of authority" can apply to live-in boyfriends would materially affect the State's theory that he occupied a role substantially similar to that of a babysitter.

Moreover, the only issue relevant to Thompson's case that was presented in Wurthmann's appeal was the scope of the term "position of authority"; Wurthmann was not prosecuted or convicted under alternative theories. But the State in this case did not rely solely on the "position of authority" prong of AS 11.41.434(a)(3)(B). It also charged Thompson under an alternative theory: that he "resided" with J.C. and "had authority" over her pursuant to AS 11.41.434(a)(3)(A). The State presented evidence and argued this theory to the jury in addition to its presentation and argument of the "position of authority" theory. The court of appeals' interpretation in Wurthmann of "position of authority"-a term appearing in a different subsection of the statute-has no effect on this alternative theory of prosecution. Even if we were to adopt Thompson's proposed reading of "position of authority," it would not affect his convictions based upon this second theory. We are not persuaded to revisit or overrule Wurthmann .

B. The Jury Was Properly Instructed On The Phrase "Position Of Authority."

Thompson separately argues that the superior court "incorrectly responded to the jury's question[s]. It should have ... referred them back to the instruction, and [told] them that 'substantially similar' pertains to the definitions in the instruction." The court of appeals held that the superior court's instructions to the jury in response to their questions were correct:

The judge told the jurors that, if they found that Thompson's relationship to J.C. did not put him in any of the authority roles specifically listed in Instruction No. 31 (i.e., the ones specifically listed in AS 11.41.470(5) ), then the jurors could consider whether Thompson's position amounted to some other authority role, but only if that other authority role was "substantially similar" to the ones listed in Instruction No. 31.... This is precisely what the statutory definition says.[ ]

We use our independent judgment to determine the correctness of jury instructions. But we agree with the court of appeals' conclusion that the superior court followed the statutory text in both of its responses to the jury's questions about the phrase "position of authority."

Because the relevant statutory section ends its list with a general phrase including "substantially similar position[s]," we turn to statutory canons to interpret its meaning. Under the ejusdem generis canon, the general phrase "substantially similar position" is qualified by the preceding specific list of positions. Thus, as the superior court instructed: "The jury may consider a broader list of authority figures/roles in its deliberation but the roles must be substantially similar, not slightly similar, to the list in instruction #31."

Thompson argues that the jury could not consider "a broader list of authority figures or roles ... [and that] 'substantially similar' refers to the listed roles" exclusively. If Thompson were correct, then the phrase "substantially similar position" would be superfluous. But we "presume that no words or provisions [in a statute] are superfluous and that the legislature intended 'every word, sentence, or provision of a statute to have some purpose, force, and effect.' "

The superior court's instruction and its response to the jury's questions followed the text of the statute. We therefore affirm the court of appeals' holding that the jury was properly instructed by the superior court.

C. Distinct Acts Of Penetration Can Support Separate Convictions, Regardless Of The Penetrating Object Or Body Part.

1. Constitutional framework for merger issues

The Fifth Amendment of the United States Constitution provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." The federal double jeopardy clause binds the states through the Fourteenth Amendment. Article I, section 9 of the Alaska Constitution also provides that "[n]o person shall be put in jeopardy twice for the same offense." In Johnson v. State we elaborated: "The constitutional protection against double jeopardy ... protects against multiple punishments for the same offense." We delineated the steps required of the court to determine whether separate convictions must merge for sentencing in Whitton v. State . Johnson reaffirmed that the Whitton rule remains the standard for determining whether convictions must merge pursuant to the Alaska Constitution:

[I]n order to determine whether multiple punishment violates the Alaska Constitution, a court must first look to the intent, conduct, and societal interests at stake in the multiple offenses (or multiple counts of a single offense) that were defined by the legislature. A court must then independently determine whether the differences among these purposes underlying the multiple offenses or counts are great enough that multiple punishments for the criminal conduct should lie.[ ]

2. Issues presented on appeal

In Johnson we held that "the harms from non-consensual sexual penetration of distinct orifices of the victim's body are so independently significant that multiple counts of sexual assault are permissible under the Alaska Constitution to vindicate the societal interest in preventing those harms and punishing the [harmful] conduct."

Thompson and the State present competing arguments about our merger jurisprudence in the sexual assault and sexual abuse of a minor contexts. Thompson argues that we should hold that the rule announced in Johnson v. State does not apply to sexual abuse of a minor cases. He urges us to create a rule in such cases that would require merger of all convictions from a single episode of sexual activity. Referring to Whitton , Thompson argues that "the 'intent, conduct, and societal interests at stake' as 'defined by the legislature' of sexual assault differ from sexual abuse." He continues that statutes criminalizing "sexual assault protect[ ] against ... non-consensual sex, meaning coerced sex. But what sexual abuse [laws] protect[ ] against is sex that is non-consensual by operation of law." He argues that the harm targeted by sexual abuse statutes is not "forcible or coerced" sex but rather the abuse of the power adults may hold over children. The prohibited conduct in Thompson's view is the "break of trust and misuse of power." He therefore urges us to hold that this power "is not separately abused with each distinct act that occurs in a criminal episode, or each distinct orifice that is penetrated." Thompson instead argues that there is a single violation of law each time an adult engages in an episode of sexual activity, regardless of the type and number of acts of penetration.

In its petition the State urges us to disavow the "distinct orifices" framework of Johnson and Oswald v. State and hold instead that each separate act of penetration supports its own conviction and punishment, regardless of whether the distinct acts of penetration occurred in a single bodily orifice or separate bodily orifices. The State argues that Johnson 's rationale supporting separate convictions for separate acts of penetration in different orifices, like fellatio and vaginal intercourse, applies just as persuasively to separate acts of penetration in the same orifice, like digital penetration and vaginal intercourse.

3. The same rules for merger apply to both sexual abuse of a minor and sexual assault convictions.

Thompson argues that the policy goals and interests protected by different categories of sexual offense are so unique that they warrant different treatment for the purposes of merger. He asserts that sexual abuse of a minor cases differ from sexual assault cases because, in sexual abuse cases, sex that "is not forcible or coerced ... is nevertheless considered non-consensual because it is an abuse of power by an older person of a child."

Thompson mischaracterizes the law in arguing that it is force or coercion that justifies different merger rules for sexual abuse of a minor and sexual assault. First, his assumption that sexual abuse cases do not involve coercion is faulty. Coercion is defined as the "[c]ompulsion of a free agent by physical, moral, or economic force or threat of physical force." "Undue influence" is defined as "[t]he improper use of power or trust in a way that deprives a person of free will," or "the exercise of enough control" to overmaster another's free agency and induce that person to perform an act that "would not have otherwise been performed." The concepts overlap, and both may characterize the coercive effect of an adult abuser's influence over a child. The "abuse of power" in many sexual abuse cases thus stems from the undue, coercive influence that the abuser exercises over the victim.

Conversely, Thompson's argument ignores that sexual assault cases may not involve force or threat of force. For example, the definition of second degree sexual assault includes "sexual penetration with a person who the offender knows is (A) mentally incapable; (B) incapacitated; or (C) unaware that a sexual act is being committed." None of these prohibited actions are "forcible": they do not involve the use or threat of physical violence. But such penetrations still violate an incapacitated victim's autonomy and bodily integrity.

The court of appeals addressed a related argument about the policy goals of the sexual assault and sexual abuse statutes in Yearty v. State . There the State argued that convictions for sexual assault and sexual abuse of a minor relating to the same course of conduct should not merge because the two types of offenses "involve different statutory elements and protect differing societal interests." The court of appeals disagreed, noting that both statutes serve the same basic aim: "protect[ing] victims from socially unacceptable sexual contacts."

The court in Yearty acknowledged that the sexual assault statute achieved this purpose by requiring affirmative proof of the victim's lack of consent, while the sexual abuse of a minor statute did so "by substituting the child's age (and the age of the defendant) for proof of actual lack of consent." But it rejected the argument that this difference reflected any shift in the purpose of the statute, instead noting "the legislature's practical recognition that a child of under thirteen years is incapable of giving meaningful consent to sexual contact." The court then concluded that because every sexual abuse of a minor case is thus legally nonconsensual, "it is difficult to conceive of a situation in which an act of sexual abuse on a child would not also be an act of sexual assault" -a conclusion that reaffirmed the shared purpose of both types of statute.

We agree with the Yearty court's explication of the intent and societal interests prongs of Whitton in sex crimes and we see no reason to disturb it. The basic purpose of both sexual assault and sexual abuse of a minor statutes is to protect victims from offensive sexual conduct. Whether charged as sexual assault or sexual abuse of a minor, each offensive act is a violation of the victim's dignity, personal freedom, and bodily integrity. We therefore hold that sexual abuse of a minor cases should be treated in the same manner as sexual assault cases to determine whether separate convictions should merge. The rule announced in Johnson applies to the same extent in both sexual assault cases and sexual abuse of a minor cases.

4. Separate convictions may stand for each separate act of penetration, regardless of whether it is the same or a different orifice.

The court of appeals relied on its previous decision in Oswald v. State when it merged Thompson's convictions for acts of digital penetration, penetration by object, and penile penetration that occurred over similar time periods. The State urges us to disavow Oswald 's characterization of an initial act of digital penetration as "foreplay" and its conclusion that such a preparatory step toward another act of penetration had to merge with the later act. In its place the State asks us to adopt a rule that separate convictions can enter for each separate act of penetration, regardless of whether the same or a different orifice was penetrated.

a. Oswald v. State and its progeny

In Oswald the court of appeals accepted a concession from the State that "Count I [digital penetration] encompassed foreplay leading to the act of sexual intercourse charged in Count II, and consequently could not support a separate conviction." In contrast, the court found that a separate conviction should stand for a second act of sexual intercourse following a break in time from the first.

A few years later in Rodriquez v. State the court of appeals differentiated between convictions for multiple instances of fellatio and anal penetration. The court held that because "fellatio ... was not a necessary or inevitable predecessor to the later sodomy," these counts did not merge. For two different incidents of fellatio and anal penetration, the court held that separate convictions were appropriate because, as in Oswald , there was a sufficient break in time between the two acts. The court thus concluded that a completed sexual act followed by another, different, sexual act could support two convictions.

In Yearty v. State the court of appeals again considered whether two separate sexual acts-fellatio followed by attempted anal penetration-could support separate convictions. The court of appeals held that they could, stating that separate convictions and sentences from a single episode of sexual assault or abuse were permissible when they were for different types of sexual penetration. In a footnote the court acknowledged that the State had pointed out a potential inconsistency between Rodriquez and Oswald . The court stated that "[t]o the extent that Oswald is inconsistent with our subsequent decision in [ Rodriquez ], we hold that the latter case overrules Oswald ."

The court of appeals more recently reiterated in Iyapana v. State that "[s]eparate convictions for multiple acts of penetration involving different openings of the victim's ... body are permissible," explaining the acts merited separate punishment because "different types of penetration constitute different forms of indignity." In a concurring opinion Chief Judge Mannheimer explained his understanding of the relationship between the court of appeals' decisions in Oswald , Rodriquez , and Yearty , clarifying that merger based upon the preparatory nature of a sexual act was appropriate only when both acts involved the same orifice:

Oswald has been overruled only to the extent that it is inconsistent with Rodriquez -that is, only to the extent that Oswald would apparently require a merger of counts even when a defendant's preparatory act of sexual penetration involved a different type of penetration from the defendant's ultimate act of sexual penetration.
Thus, even after Rodriquez and Yearty , the result reached in Oswald remains correct: the defendant's preparatory act of penetrating the victim's vagina with his finger merged with the defendant's ensuing act of penetrating the victim's vagina with his penis-because the first penetration was preparatory to the second, and because both acts involved penetration of the same orifice.[ ]

Against this history we were asked in Johnson v. State to review the court of appeals' decision upholding separate convictions for nonconsensual fellatio and vaginal intercourse. We affirmed the separate convictions, holding that "the harms from non-consensual sexual penetration of distinct orifices of the victim's body are so independently significant that multiple counts of sexual assault are permissible ... to vindicate the societal interest in preventing those harms and punishing the [harmful] conduct."

Neither party in Johnson , however, asked that we examine whether penetration of separate orifices was required to impose separate sentences. The facts of that case were based upon the penetration of different orifices. But in agreeing with the court of appeals, we emphasized the policy goals of "preventing the loss of [the victim's] autonomy, dignity, free will, and bodily integrity," and observed that these harms "are revisited upon the victim with each distinct type of non-consensual sexual penetration." We are now asked directly if penetration of separate orifices is required to support separate sentences. We hold that it is not.

b. Distinct types of penetration, whether distinguished by penetrating object or body part, penetrated orifice, or both, do not merge.

Applying Johnson 's "separate penetration" rule to the penetrating object or body part as well as to the penetrated orifice is consistent with both the federal and state double jeopardy provisions. As we acknowledged in Johnson , the federal double jeopardy question turns on legislative intent. We determined there that "[n]othing in the criminal statute or the legislative history" evinced an intent to punish only once for penetration of multiple orifices of the victim's body.

Johnson did not raise the question of whether the same reasoning applies to penetration of the same orifice by multiple objects or body parts, but we see no reason that it should not. Indeed, the legislature defined "sexual penetration" as "genital intercourse, cunnilingus, fellatio, anal intercourse, or an intrusion, however slight, of an object or any part of a person's body into the genital or anal opening of another person's body." This language demonstrates its intent to treat changes in both the manner of penetration and the penetrated orifice as separately punishable acts. Multiple convictions and sentences for distinct methods of penetration are therefore not required to merge.

To determine whether the legislature's intent satisfies the Alaska Constitution's double jeopardy clause, the Whitton test first requires us to "identify the societal interests at stake in charging, convicting on, and punishing multiple counts of sexual [abuse] in the first degree, including differences in [Thompson]'s intent and conduct and the consequences of his actions." Second, we must decide "whether those societal interests are great enough" to justify multiple punishments for the conduct at issue, or whether multiple punishments are unconstitutional.

The sexual abuse of a minor statutes, like the sexual assault statutes, aim "to protect victims from socially unacceptable sexual contacts." The purpose of the statutes is to acknowledge and punish the distinct harms that are "revisited upon the victim with each distinct type of non-consensual sexual penetration." Each act of penetration subjects a victim of sexual abuse to an additional "loss of autonomy, dignity, free will, and bodily integrity." This is no less true when the acts of penetration differ by penetrating object or body part-such as digital followed by penile penetration-than when they differ by penetrated orifice. And it is no less true of acts of penetration that would be considered "preparatory" under the Oswald framework.

Thompson argues that a rule allowing separate convictions for distinct penetrations of the same or separate bodily orifices will result in "every thrust of a penis during penile-vaginal or penile-anal intercourse" potentially amounting to a "separate conviction and sentence." He analogizes to the application of the merger principle in assault cases, characterizing the relevant question as "whether the assaults occurred during a single, continuous episode." He argues that a similar framework should apply in sexual abuse cases. But as the Washington Supreme Court noted in rejecting a similar argument, this argument "ignores key differences between the crimes of rape and assault. Unlike the rape statute, the assault statute does not define the specific unit of prosecution in terms of each physical act against a victim." Thompson's argument likewise ignores that the unit of prosecution in sexual abuse cases is still defined as an act of "sexual penetration."

This case for the first time squarely presents the question whether penetrations of the same orifice with different objects or body parts can support separate convictions. In Johnson , when we specifically affirmed separate convictions for the penetration of different orifices, the facts did not require us to consider merger given penetration by different objects or body parts. And in Oswald , which did involve penetration of the same orifice by different body parts, the court of appeals accepted the State's concession that these acts would merge if not separated by a gap in time. In Johnson we reasoned that penetration of different orifices warranted separate convictions because each "distinct type of non-consensual penetration" visited additional harms upon the victim. We recognize now that whether the convictions Thompson challenges reflect "distinct types of non-consensual penetration" does not depend solely on the orifice that was penetrated. Rather, the required inquiry is whether each act of penetration is sufficiently distinct from other acts to merit separate treatment.

After considering the interests of society to be vindicated or protected by the sexual abuse of a minor statutes (and sexual assault statutes), we conclude that a separate and distinct act of penetration occurs each time the penetrated orifice or the penetrating object or body part changes. Each change in either the orifice or the penetrating object or body part inflicts a distinct violation of the victim's "autonomy, dignity, free will, and bodily integrity" and is sufficiently significant to warrant a separate conviction. We therefore reverse the court of appeals' holding that Thompson's convictions must merge and remand for further proceedings consistent with this opinion.

V. CONCLUSION

We REVERSE the court of appeals' holding on the merger issues for Thompson's sexual abuse of a minor convictions but otherwise AFFIRM its decision.

      AS 11.41.470(5) provides: " '[P]osition of authority' means an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter, or a substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor."

      See AS 11.41.434(a)(3)(B). An offender who is at least 18 years of age commits first degree sexual abuse of a minor if the offender engages in sexual penetration with a person under the age of 16 and, at the time of the offense, "occupies a position of authority" over the victim.

      See AS 11.41.434(a)(3)(A). An offender who is at least 18 years of age commits first degree sexual abuse of a minor if the offender engages in sexual penetration with a person under the age of 16 and, at the time of the offense, resides with and "has authority over" the victim.

      27 P.3d 762, 766 (Alaska App. 2001) (holding that live-in boyfriend of sexual abuse victim's mother occupied a "position of authority" within the scope of AS 11.41.470(5) ).

      Thompson v. State , 378 P.3d 707, 712-12 (Alaska App. 2016).

      Id. at 716-17 (citing Oswald v. State , 715 P.2d 276, 280-81 (Alaska App. 1986), recognized as overruled on other grounds by Yearty v. State , 805 P.2d 987, 995 n.3 (Alaska App. 1991) ), reh'g denied (Feb. 7, 2017).

      328 P.3d 77, 89 (Alaska 2014).

      Thompson , 378 P.3d at 709-11.

      We have adopted the initials and pseudonyms used by the court of appeals to protect the privacy of the parties and witnesses.

      Thompson , 378 P.3d at 709-11.

      AS 11.41.434(a)(3) (emphasis added).

      AS 11.41.470(5).

      Instruction #31 was based on the language of AS 11.41.470(5) and read: " 'Position of authority' means an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, babysitter, or a substantially similar position." See AS 11.41.470(5).

      Thompson , 378 P.3d at 711.

      Id. at 712-13, 716-18.

      We previously held in a sexual assault case that nonconsensual penetration of different orifices supports separate convictions. Johnson v. State , 328 P.3d 77, 89 (Alaska 2014). But that case dealt with separate convictions for vaginal and oral penetration; it did not require us to consider merger issues for penetration of the same orifice by different objects or body parts. Id. at 86.

      State v. Fyfe , 370 P.3d 1092, 1094 (Alaska 2016).

      Lindbo v. Colaska, Inc. , 414 P.3d 646, 650 (Alaska 2018) (quoting Ayuluk v. Red Oaks Assisted Living, Inc. , 201 P.3d 1183, 1197 n.30 (Alaska 2009) ); see Thompson v. Cooper , 290 P.3d 393, 398 (Alaska 2012) ("Jury instructions involve questions of law to which we apply our independent judgment.").

      Johnson , 328 P.3d at 81.

      Id.

      27 P.3d 762 (Alaska App. 2001).

      Id. at 763-64. An offender was guilty of third degree sexual abuse of a minor under former AS 11.41.438(a)(2) if the offender, "being 18 years of age or older, ... engage[d] in sexual penetration with a person who [was] 16 or 17 years of age and at least three years younger than the offender, and the offender occupie[d] a position of authority in relation to the victim." The statute was later recodified as sexual abuse of a minor in the second degree at AS 11.41.436(a)(6) (2006). See Ch. 88, § 1, SLA 2006; Ch. 14, § 1, SLA 2006.

      Wurthmann , 27 P.3d at 764.

      Id. at 763.

      Id . at 765.

      AS 11.41.434(a)(3).

      Wurthmann , 27 P.3d at 763.

      AS 11.41.470(5) (emphasis added).

      Thompson v. State , 378 P.3d 707, 712 (Alaska App. 2016).

      Wurthmann , 27 P.3d at 764 ; see also former AS 11.41.438(a)(2).

      Thompson , 378 P.3d at 712-13.

      Long v. Arnold , 386 P.3d 1217, 1220 n.5 (Alaska 2016) (quoting Thompson v. Cooper , 290 P.3d 393, 398 (Alaska 2012) ).

      Thompson , 378 P.3d at 712-13.

      AS 11.41.470(5).

      See Cable v. Shefchik , 985 P.2d 474, 480 (Alaska 1999) (stating that pursuant to the statutory construction doctrine of ejusdem generis , "a general term ... when modified by specific terms ... will be interpreted in light of those specific terms, absent a clear indication to the contrary" (quoting State Farm Fire &Cas. Co. v. Bongen , 925 P.2d 1042, 1046 (Alaska 1996) ) ); Alaska State Emps. Ass'n v. Alaska Pub. Emps. Ass'n , 825 P.2d 451, 460 (Alaska 1991) (defining ejusdem generis as "the general is controlled by the particular").

      State v. Fyfe , 370 P.3d 1092, 1099 (Alaska 2016) (quoting Adamson v. Municipality of Anchorage , 333 P.3d 5, 16 (Alaska 2014) ).

      U.S. Const. amend. V.

      Benton v. Maryland , 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Thompson does not specifically raise a federal double jeopardy claim. But to the extent this case implicates federal constitutional questions we note that the federal double jeopardy clause authorizes courts to enforce the legislature's intent to permit or preclude multiple charges or convictions relating to a single course of conduct. Johnson v. State , 328 P.3d 77, 86, 87 (Alaska 2014) (citing Whalen v. United States , 445 U.S. 684, 688-89, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ). "Legislative intent is 'dispositive' of the federal constitutional question." Id. at 87 (quoting Whalen , 445 U.S. at 689, 100 S.Ct. 1432 ).

      Alaska Const. art. I, § 9.

      328 P.3d 77, 86 (Alaska 2014) (quoting N. Carolina v. Pearce , 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith , 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (internal quotation marks omitted) ).

      479 P.2d 302, 312 (Alaska 1970).

      Johnson , 328 P.3d at 87-88 (citing Whitton , 479 P.2d at 312 ).

      Id. at 89.

      715 P.2d 276, 280 (Alaska App. 1986), overruled in part as recognized by Yearty v. State , 805 P.2d 987, 995 n.3 (Alaska App. 1991).

      Coercion , Black's Law Dictionary (10th ed. 2014) (also listing the phrase "undue influence" as a corollary definition to the related phrases "implied coercion" and "moral coercion").

      Undue Influence , Black's Law Dictionary (10th ed. 2014).

      See, e.g. , State v. Jackson , 776 P.2d 320, 328 (Alaska App. 1989) (emphasizing the "breach of trust" inherent in defendant's sexual abuse of his gymnastics student); Wurthmann v. State , 27 P.3d 762, 766 (Alaska App. 2001) ("[A] reasonable jury could conclude that [Wurthmann] exercised undue influence over" the victim as her stepfather and primary caretaker).

      AS 11.41.420(a)(3). "[I]ncapacitated" is defined as "temporarily incapable of appraising the nature of one's own conduct or physically unable to express unwillingness to act." AS 11.41.470(2). "[M]entally incapable" is defined as "suffering from a mental disease or defect that renders the person incapable of understanding the nature or consequences of the person's conduct, including the potential for harm to that person." AS 11.41.470(4).

      805 P.2d 987, 994 (Alaska App. 1991).

      Id.

      Id.

      Id.

      Id.

      Id .

      Johnson v. State , 328 P.3d 77, 89 (Alaska 2014).

      We note as well that applying the Johnson rule to sexual abuse cases is consistent with legislative intent as required for federal double jeopardy purposes. See Johnson , 328 P.3d at 87-88.

      Thompson v. State , 378 P.3d 707, 716-17 (Alaska App. 2016).

      Oswald v. State , 715 P.2d 276, 280 (Alaska App. 1986), acknowledged as overruled in part by Yearty v. State , 805 P.2d 987, 995 n.3 (Alaska App. 1991).

      Id. at 281.

      741 P.2d 1200, 1207 (Alaska App. 1987).

      Id.

      Id.

      Id. at 1207-08.

      805 P.2d 987, 993 (Alaska App. 1991).

      Id. at 993-94 (citing Rodriquez , 741 P.2d at 1207-08 ).

      Id. at 995 n.3.

      Id.

      284 P.3d 841, 850 (Alaska App. 2012) (quoting Johnson v. State , 762 P.2d 493, 495 (Alaska App. 1988) ).

      Id.

      Id. at 853 (Mannheimer, J., concurring) (emphasis in original).

      328 P.3d 77, 89 (Alaska 2014).

      Id.

      Id.

      Id. at 86-87.

      Id. at 87.

      Id. at 89-90 (addressing only whether separate punishments could stand for Johnson's sexual penetration of the victim's vagina and mouth).

      AS 11.81.900(b)(60)(A) (emphasis added).

      Johnson , 328 P.3d at 89 (citing Whitton v. State , 479 P.2d 302, 312 (Alaska 1970) ).

      Id.

      Yearty v. State , 805 P.2d 987, 994 (Alaska App. 1991).

      Johnson , 328 P.3d at 89.

      Id.

      See Iyapana v. State , 284 P.3d 841, 853 (Alaska App. 2012) (Mannheimer, J., concurring) (characterizing defendant's act of digital penetration in Oswald , which was held to merge with subsequent act of penile penetration, as "preparatory").

      See, e.g. , Mill v. State , 585 P.2d 546, 552 & n.4 (Alaska 1978) (holding that where defendant aimed a gun at victim, shot victim in leg, and then stood over victim to demand money, this "short and continuous sequence" of acts "amount[ed] to a unitary criminal episode"; and noting that separate convictions would likely raise double jeopardy concerns); Miller v. State , 312 P.3d 1112, 1118 (Alaska App. 2013) (holding that where defendant pushed victim against wall, strangled her, and then stepped on her chest, defendant's conduct was properly treated as "a single, continuous assault" and would have supported only a single conviction).

      State v. Tili , 139 Wash.2d 107, 985 P.2d 365, 371 (1999).

      We also take notice of the State's explicit concession at oral argument that it does not interpret its own proposed rule to support charging every thrust as a separate offense, nor does it advocate such a rule.

      Johnson , 328 P.3d at 89-90.

      Oswald v. State , 715 P.2d 276, 280 (Alaska App. 1986) ("The [S]tate concedes that Count I [digital penetration] encompassed foreplay leading to the act of sexual intercourse charged in Count II ... [and] asks that the conviction for Count I be vacated, and Oswald joins in this request. We ... conclude that the parties' position is correct.").

      Johnson , 328 P.3d at 89.

      Id. at 89-90.