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    Laura JACKSON and Dale Jackson, Appellants, v. AMERICAN EQUITY INSURANCE COMPANY, a foreign insurance corporation authorized in the State of Alaska, Appellee.
    No. S-10328.
    Supreme Court of Alaska.
    April 2, 2004.
    Rehearing Denied May 25, 2004.

      Neil T. O’Donnell, Atkinson, Conway & Gagnon, Anchorage, for Appellants.
    Mark A. Sandberg and William M. Wues-tenfeld, Sandberg, Wuestenfeld & Corey, Anchorage, for Appellee.
    Before FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

This ease presents questions about the duty a liability insurer owes its insured when personal injury plaintiffs make a policy limits settlement demand. A jury ultimately returned a special verdict for the liability insurer following a trial of the insured’s bad faith claim against the insurer. We hold that it was not error, under the circumstances of this case, to decline to give the trial jury a special verdict form that would have allowed the jury to find that the insurer breached a duty to give the insured an assurance that it would pay any judgment even if it exceeded the insured’s policy limits. We also hold that the insured did not preserve his assertion that the court misinstructed the jury about the duties an insurer owes its insured, and hold that it was not plain error to give the instruction. We therefore affirm the judgment.

II. FACTS AND PROCEEDINGS

Laura and Dale Jackson sustained serious bodily injuries on July 25, 1997 when a trailer separated from its towing truck, crossed the centerline of the Seward Highway, and crashed into their car. The Jacksons settled their claims against the owner and operator of the trailer and truck, Great Alaska Lawn & Landscaping Company (Great Alaska) for about $1.2 million. This sum represented the policy limit of the Alaska National Insurance Company insurance policy covering Great Alaska, plus attorney’s fees and interest. Great Alaska also assigned the Jack-sons its contractual indemnity rights against James N. Evridge, the mechanic who installed the trailer hitch, and his company, Jim’s Mobile Equipment Repair. The Jacksons filed suit against Evridge. The Jacksons’ complaint against Evridge alleged negligence per se and strict products liability claims.

About a year before the Jacksons’ accident, Evridge, doing business as Jim’s Mobile Equipment Repair, had entered into a year-long contract with Great Alaska under which Evridge had repaired a number of Great Alaska’s trucks and trailers. The contract provided that Evridge was to procure insurance “to hold harmless Great Alaska Lawn and Landscaping ... from all liability and responsibility for work performed by Jim’s Mobile Equipment Repair.” Evridge had obtained a liability insurance policy through his insurance broker, CHI of Alaska, Inc. American Equity Insurance Company (AEI) issued Evridge’s policy. AEI’s policy covered Evridge at the time of the Jacksons’ accident.

After the Jacksons’ accident, AEI retained lawyer Patrick McKay to defend Evridge and AEI’s interests in the action brought by the Jacksons. AEI later hired Paul Stockier to replace McKay as Evridge’s defense counsel. Evridge also retained his own private counsel, Marshall Coryell.

The Jacksons and Evridge both moved for summary judgment on the negligence per se and strict liability claims. Evridge also moved for summary judgment on the issue of his liability for punitive damages. In July 1999 Superior Court Judge Karen L. Hunt dismissed the strict liability claims against Evridge, but allowed the Jacksons’ negligence per se claims brought under 13 Alaska Administrative Code (AAC) 04.002 (2003) and 13 AAC 04.005(a) (2003) and their punitive damages claims to proceed to trial.

The Jacksons made Evridge an offer of judgment under Alaska Civil Rule 68, offering to settle for the amount of his policy limits with AEI. Marshall Coryell, Evridge’s personal attorney, wrote several letters to AEI requesting that AEI either ■ accept the Jacksons’ offer of judgment and settle the case for no more than the policy limits, or, alternatively, issue an assurance to Evridge that AEI would pay any excess judgment against Evridge if the case went to trial. On three separate occasions, AEI informed Ev-ridge that it was not obligated to pay a judgment in excess of his policy limit of $1 million, and that it would not agree to provide Evridge written assurance that it would pay a judgment in excess of the policy limits if the case went to trial.

AEI, the Jacksons, Evridge, and their attorneys participated in a mediation in July 1999 at the office of the Jacksons’ attorney, Baker Brattain, LLC. AEI declined the Jacksons’ policy limits settlement offer, and instead offered to settle the Jacksons’ claims for $400,000. AEI had conducted an assessment of Evridge’s liability and concluded that the Jacksons’ claims were worth substantially less than the policy limits, and that Great Alaska, the owner of the truck and trailer involved in the Jacksons’ accident, was primarily at fault. The Jacksons refused AEI’s offer. Evridge’s personal attorney, Marshall Coryell, again asked AEI to issue a written assurance that AEI would cover a judgment against Evridge in excess of his policy limits if no settlement was reached and the case went to trial. Paul Stockier, the attorney AEI retained to defend Evridge, explained to Coryell and Evridge that if AEI lost the case and a judgment was actually entered for more than Evridge’s policy limits, it might be liable for the excess judgment but it was not willing to guarantee in writing prior to trial that it would pay a judgment in excess of the policy limits. Roger Holmes, the mediator, testified that AEI intimated to Evridge and Coryell that:

[Wje’re not in the position ... of guaranteeing that, if you buy a million dollars worth of insurance, we’re going to pay three or four million. You didn’t pay a premium for that, so we’ll see what happens. We want to try the case, but we’re not going to put this in writing.

After the mediation attempt failed, Coryell wrote a letter to AEI’s legal counsel, William Wuestenfeld, advising him that Evridge was poised to enter into settlement negotiations with the Jacksons because of AEI’s refusal to provide him any assurance that it would cover any excess damages if the case went to trial. Coryell’s letter asserted that AEI’s conduct “is a textbook case of an insurer’s bad faith conduct against its insured.” (Emphasis omitted.)

On the eve of trial, Evridge entered into a settlement agreement with the Jacksons and confessed judgment for approximately $6 million. Per the settlement agreement, the Jacksons agreed to prosecute in Evridge’s name all of his claims against AEI at the Jacksons’ expense and discretion. Evridge agreed to pay over the proceeds of any recovery, less attorney’s fees, to the Jacksons in satisfaction of the amount of the confessed judgment. The Jacksons also agreed to “indemnify and hold Evridge harmless from ... [any] award of attorney fees or costs which might be asserted against him by [AEI] if the ease is lost.” Judge Hunt approved the settlement agreement.

In a letter to Coryell, AEI claimed that it was not bound by the settlement agreement because its policy “bars an insured from settling directly with the injured party without [its] consent so long as [they] are providing a defense.” AEI warned that “settlement of the case without [its] consent will constitute a breach of the insurance contract resulting in total forfeiture of coverage.”

The Jacksons hired Baker Brattain, LLC, the firm that represented the Jacksons in the prior case against Evridge, to litigate the bad faith suit on behalf of Evridge. In September 1999 Evridge, individually and for the benefit of Laura and Dale Jackson, brought suit against AEI, Montgomery & Collins (M & C) (AEI’s managing agent), and CHI of Alaska (Evridge’s insurance broker). The complaint alleged, among other things, that AEI, CHI, and M & C acted in bad faith towards the insured, Evridge, by not advising him of the coverage his policy gave him, and by not giving him written assurance that it would cover any judgment in excess of the policy limits. The complaint also asserted negligence claims against each defendant.

Evridge moved for partial summary judgment, requesting dismissal of AEI’s affirmative defenses. In a cross-motion for summary judgment, AEI argued that Evridge breached his policy’s cooperation clause by entering into the settlement agreement and c.onsent judgment without AEI’s consent. Superior Court Judge Rene J. Gonzalez granted Evridge’s summary judgment motion in part, striking AEI’s affirmative defenses asserting failure to state a claim, collateral estoppel/res judicata, comparative negligence, failure to name indispensable parties, Rule 11 violations, and unclean hands. The superior court also denied AEI’s cross-motion for summary judgment because it found unresolved issues of fact about whether AEI or Evridge breached the insurance policy. The superior court also granted M & C’s motion for summary judgment, holding that because M & C was an agent of a disclosed principal — AEI—M & C was not vicariously liable to AEI’s insured for any contracts made on behalf of AEI.

The breach of good faith and fair dealing claim went to trial in May 2001. Although Evridge does not argue that the verdict was contrary to the weight of the evidence, we note that at trial Evridge testified that he shared the view of Stockier that the Jack-sons’ claim was not worth $1 million. He also testified that he had thought the settlement and consent judgment were a mistake and a fraud. The jury returned a special verdict in favor of AEI, finding that AEI’s refusal to settle the Jacksons’ claims against Evridge for policy limits was not a breach of the duty of good faith and fair dealing. The court entered judgment against Evridge for attorney’s fees and costs in the amount of $101,194.68.

The Jacksons moved for a new trial, arguing that the court’s special verdict form was improper. The trial court denied the Jack-sons’ motion. The Jacksons then moved to amend the judgment under Alaska Civil Rule 60 to require AEI to collect its attorney’s fees and costs from the Jacksons instead of Evridge, the named plaintiff. The court denied this motion, observing that “the Jack-sons chose to have Evridge bring the claim for their benefit, but in his name. A consequence of that action is that Evridge, not the Jacksons, is subject to any judgment for costs in the event the claim failed.” The judgment against Evridge therefore stood.

Evridge and the Jacksons appealed to this court. AEI and CHI each filed cross-appeals. As of September 2001, the Jacksons had not yet indemnified Evridge, per their settlement agreement, for the outstanding attorney’s fees and costs he owed AEI. AEI offered not to execute upon any of Evridge’s personal assets if, in exchange, Evridge would assign his contractual right to be indemnified by the Jacksons to AEI, dismiss the appeal, and write a letter to William Brattain, the Jacksons’ attorney, directing him to dismiss the appeal. In a letter to Evridge’s personal attorney, Marshall Cor-yell, the Jacksons contended that Evridge did not have the authority to settle or dismiss the case. To avoid losing his personal assets, Evridge entered into a stipulation for dismissal with prejudice with AEI and CHI. Per the agreement, Evridge, AEI, and CHI stipulated “that all appeals relating to their respective interests, inter alia, in [Evridge v. AEI ] may be dismissed with prejudice.” We granted AEI and Evridge’s motion to dismiss their respective cross-appeals. The order did not affect the Jacksons’ appeal of Ev-ridge’s bad faith claim against AEI brought for their benefit.

In March 2002 AEI moved this court to dismiss the Jacksons’ appeal on the theory the Jacksons were not parties to the proceedings in the superior court. We denied the motion, and directed AEI to address the standing argument in its brief to this court. We now consider the Jacksons’ appeal.

III. DISCUSSION

A. The Special Jury Verdict Form Was Not Improper.

We conduct a de novo review of jury instructions and special verdict forms to which timely objection was made. A jury instruction containing an erroneous statement of law is reversible error if it prejudices one of the parties. Prejudice exists if we determine the verdict would have been different had the erroneous instruction not been given.

The Jacksons argue that the special verdict form was erroneous because it “only presented half of their case to the jury.” (Emphasis omitted.) They argue that their case rested on a two-part theory that AEI breached its duty of good faith and fair dealing by either (1) not settling for policy limits, or (2) not giving Evridge assurances that AEI would indemnify him for a judgment entered against him in excess of his policy limits if the case proceeded to trial.

The special verdict form submitted to the jury provided:

Did American Equity Insurance Company breach its duty of good faith and fair dealing to James N. Evridge by its refusal to accept the Jacksons’ $1 million policy limits demand?

The Jacksons argue that it was reversible error to submit a special verdict form that failed to ask the jury whether AEI breached its duty of good faith and fair dealing by not providing assurances to Evridge that it would cover an excess judgment. Their proposed special verdict form provided in part:

1. Was American Equity’s failure to accept the Jacksons’ policy limits settlement demand unreasonable?
2. Did American Equity breach its implied obligation of good faith and fair dealing by refusing to give Evridge reasonable assurances that it would protect his interests in the event the underlying case of Jackson v. EvHdge went to trial and a jury returned a verdict in excess of his policy limits?

The Jacksons assert that they were entitled to a special verdict form consonant with their two-part theory because their theories were supported by evidence.

Although a trial court generally must give a jury instruction consonant with a party’s theory where that theory is supported by evidence, the Jacksons are not entitled to a jury instruction consonant with their case theory if that instruction incorrectly states the law. The Jacksons therefore were entitled to a jury instruction encompassing the second prong of their theory only if the covenant Of good faith and fair dealing imposes a legal duty on an insurer to give its insured assurances that it will cover an excess judgment entered against its insured. The Jacksons, however, cite no legal authority establishing that such a duty exists.

The covenant of good faith and fair dealing is implicit within every insurance contract; it requires “that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.” When a plaintiff makes a policy limits demand, the covenant of good faith and fair dealing places a duty on an insurer to tender maximum policy limits to settle a plaintiffs demand when there is a substantial likelihood of an excess verdict against the insured. This duty is grounded in the insurer’s legal duty to act in good faith to protect the interests of the insured.

When “there is a great risk of a recovery beyond the policy limits so that the most reasonable manner of disposing of the claim is a settlement which can be made within those limits, a consideration in good faith of the insured’s interest requires the insurer to settle the claim.”[]

In such a situation, “an insurance company has the duty to determine ‘the amount of a money judgment which might be rendered against its insured,’ and ‘to tender in settlement that portion of the projected money judgment which [it] contractually agreed to pay.’ ”

The covenant of good faith and fair dealing also obligates an insurer to inform the insured of all settlement offers and to inform the insured of the possibility the injured claimant may recover a judgment in excess of the insured’s policy limits. Breach of the covenant of good faith and fair dealing exposes the insurer to a claim of bad faith and may expose it to liability for any excess judgment against its insured.

But the covenant of good faith does not broadly require an insurer to give its insured pre-trial assurances that it will cover an excess judgment against the insured if the insurer fails to accept a plaintiffs policy limits demand. The Jacksons’ proposed theory would translate into a general duty to issue a pre-trial waiver of policy limits, and there is no such broad duty.

In its order denying the Jacksons’ new trial motion, the trial court noted that if a duty to provide assurances existed, that duty would only arise if there was a “reasonable likelihood” of -recovery of an excess judgment against the insured. We agree with the trial court’s reasoning. If there were a duty to provide assurances that an insurer would cover an excess judgment, it would coincide with an insurer’s duties to settle for policy limits. It would therefore arise only if an insurer’s failure to settle were unreasonable, or in other words, if there were a reasonable likelihood the injured claimant would recover against the insured an amount exceeding the insured’s policy limits.

Even if there was any error in failing to submit the Jacksons’ alternate theory to the jury, it did not prejudice the Jacksons. AEI argued to the superior court that because the jury found that it was reasonable for AEI to reject the Jacksons’ policy limits demand, the jury implicitly found “that there was not a reasonable likelihood of an excess judgment.” The superior court agreed, stating that: “Instruction #23 explained that the implied obligation of good faith imposes a duty on an insurer to ‘accept a reasonable offer to settle ... if there is a reasonable likelihood of recovery.’ ”

The Jacksons argue, however, that the jury did not implicitly find that there was not a reasonable likelihood of an excess verdict. In support, the Jacksons cite Instruction No. 20, which listed four elements the Jacksons had to prove to establish that AEI breached its duty of good faith. Two of these elements are relevant here. The first required the Jacksons to prove that there was a reasonable likelihood of an excess judgment against Evridge. The second required the Jacksons to prove that AEI’s failure to accept the Jacksons’ policy limits demand was unreasonable. The Jacksons argue that “[t]he only reason for having these two separate elements was if each element could exist (or not exist) independent of the other.” The Jacksons claim that the jury could have found — as it did — that AEI’s refusal to settle was reasonable without implicitly finding that there was no reasonable likelihood of excess recovery against Evridge, if the jury determined that AEI exercised bad judgment or negligence “in failing to recognize that likelihood.” ’

The Jacksons also point to Instruction No. 22, which explained'that bad faith does not mean “bad judgment or negligence,” and Instruction No. 24, which explained that AEI would not be liable for its failure to settle if that failure was based on an “honest mistake.” The Jacksons argue that “the jury could have concluded that there was a reasonable likelihood of an excess verdict but that AEI simply made an ‘honest mistake.’ ”

The Jacksons’ arguments are unpersuasive. The special verdict form required the jury to determine whether AEI’s refusal to settle with the Jacksons was a breach of its duty of good faith and fair dealing. The accompanying jury instructions submitted by the court adequately informed the jury that, in order to determine whether AEI breached the duty of good faith and fair dealing, the jury would implicitly need to decide whether there was a reasonable likelihood of an excess judgment against Evridge. Instruction No. 23 correctly told the jury:

The implied obligation of good faith and fair dealing in an insurance policy imposes a duty on an insurance company to accept a reasonable offer to settle a claim against the person insured if the offer is within the limits of the insurance coverage and if there is a reasonable likelihood of recovery against the person insured for an amount in excess of the insurance coverage.

(Emphasis added.)

Because the jury found that AEI’s refusal to settle did not breach its duty of good faith and fair dealing, the jury implicitly concluded that there was no reasonable likelihood Ev-ridge was exposed to a judgment exceeding his policy limits. Therefore, even if a liability insurer has a duty to provide assurances to its insured that it would cover an excess judgment, that duty would not arise under the circumstances of this case.

B. The Superior Court Did Not Commit Plain Error by Giving Instruction No. 22

The Jacksons argue that the second paragraph of Instruction No. 22 incorrectly describes an insurer’s duty of good faith in considering settlement offers. The second paragraph of Instruction No. 22 provided in part:

Bad faith does not mean bad judgment or negligence, but means having a dishonest purpose through some motive of self-interest or ill will, or having maliciousness or hostile feelings towards its insured, or acting with reckless indifference to the interests or rights of its insured.

The Jacksons argue, instead, that “an insurance company is liable for an excess judgment if there is a substantial likelihood of an excess judgment-regardless of whether the insurance company acted maliciously or negligently in failing to recognize that fact.” They also argue that the instruction was plainly erroneous because at the very least a negligent failure to accept a reasonable policy limits demand would be an actionable breach of the obligation of fair dealing. To support this argument, the Jacksons cite Continental Insurance Co. v. Bayless & Roberts, Inc., in which we held that “an insurer [ ] defending an action against the insured, is bound to exercise that degree of care which a man of ordinary prudence would exercise in the management of his own affairs ... irrespective of fraud or bad faith.”

Because the Jacksons did not object to Instruction No. 22 at trial, they must demonstrate that it was plain error to give that instruction. Plain error is present when an “obvious mistake exists such that the jury instruction creates a ‘high likelihood that the jury will follow an erroneous theory resulting in a miscarriage of justice.’ ” To find plain error, we look to see if a correct jury instruction would have likely altered the result. We place a heavy burden on the appellant to prove that the error was “highly likely determinative.”

The Jacksons are not entitled to a plain error analysis, however, if their failure to object to Instruction No. 22 indicates a tactical choice. During AEI’s closing argument, AEI’s trial counsel, William Wuesten-feld referred to the second paragraph of Instruction No. 22. He told the jury that

[T]here is no evidence to suggest that American Equity acted in bad faith, that it was acting in some motive of self-interest or ill will. Rather, the evidence supports the instruction number 24, that American Equity had a bona fide ... good faith belief that the insurer had a good possibility of winning the suit.

Instead of objecting to AEI’s definition of bad faith, the Jacksons’ trial counsel also referred to Instruction No. 22 in his rebuttal argument, arguing to the jury that the instruction explained that “bad faith can be measured by the reckless indifference to the interests or the rights of the insured.” The Jacksons’ failure to object and their subsequent reliance on Instruction No. 22 in then-rebuttal argument suggests that the Jack-sons were fully aware of the language of Instruction No. 22, and that their failure to object was the result of sound tactical choice, thereby precluding a claim of plain error on appeal. If the Jacksons’ counsel did not see fit to object under these circumstances, we hesitate to consider whether it was plain error for the trial court to give the instruction. AEI asserts on appeal that this language originated in an instruction Evridge proposed. It does appear that Evridge proposed the instruction and that AEI objected to it on the ground it was a first-party insurance instruction.

Because the second paragraph of Instruction No. 22 incorrectly states the standard for finding bad faith in third-party insurance disputes, this paragraph should not have been submitted to the jury. The disputed language appears in a jury instruction discussed in State Farm Fire & Casualty Co. v. Nicholson, in which we held that an insured’s cause of action against an insurer for breach of the duty of good faith and fair dealing sounded in tort in first-party insurance disputes. The disputed paragraph may also have originated in a punitive damages claim. In any event, it erroneously described the standard for finding bad faith in this ease. We disapprove of the submission of this language on the issue of bad faith in a third-party insurance dispute, the type of dispute we have here. But the error in giving Instruction No. 22 was not plain. Instruction No. 23 correctly states the law, and mitigates the presence of the second paragraph of Instruction No. 22.

C. The Trial Court Did Not Err in Admitting Testimony of AEI’s Expert, Ronald Mallen.

The Jacksons argue that the trial court also erred in allowing AEI to present expert testimony that was not disclosed in an expert report, per the requirements of Alaska Civil Rule 26(a)(2)(B). That rule provides in part that during discovery a disclosure of the identity of an expert witness must “be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor....” The Jacksons contend that the trial court allowed Ronald Mallen, over then-objection, to testify about things not revealed in his expert report.

We review the trial court’s admission of expert testimony under an abuse of discretion standard. We will reverse the trial court’s decision to admit evidence “only when left with the definite and firm conviction that the trial court erred in its decision.”

The Jacksons take issue with the portion of Mallen’s expert disclosure report which states that AEI “was not obligated ... to inform Mr. Evridge that, as a guarantee, it would be so liable [for any excess judgment].” At trial, Mallen testified that AEI could not provide the assurance Evridge requested because giving such an assurance Would breach AEI’s reinsurance agreements. The Jacksons contend that, had Mallen properly disclosed before trial that AEI could not provide Evridge written assurances because it was in danger of breaching its reinsurance agreements, they eould have conducted appropriate discovery on the issue to rebut Mallen’s testimony at trial.

We hold that there was' sufficient disclosure of Mallen’s expert opinion before he testified at trial. Although Mallen did not disclose a basis for his ultimate conclusion in his expert report, if there was any dissatisfaction with the report, the Jacksons should have filed a motion to compel further disclosures, or should have taken Mallen’s deposition to discover how he arrived at his ultimate opinion. Moreover, Mallen’s opinion was only part of AEI’s evidence on this point. The report and subsequent trial testimony of another AEI expert witness, Robert Wain-scott, echoed Mallen’s conclusion that AEI’s refusal to settle was reasonable, and that AEI was not obligated to give Evridge written assurances. Wainscott also testified that AEI had no duty to give assurances and that doing so would have threatened its relationship with, its reinsurers. His expert report did not mention reinsurance either. The Jacksons, however, do not object to the trial court’s admission of Wainseott’s testimony. The admission of Wainscott’s report and testimony into evidence without objection renders harmless any possible error in admitting Mallen’s disputed testimony.

D. The Trial Court’s Ruling on the Offset Issue Did Not Prejudice the Jacksons.

Finally, the Jacksons argue that the trial court erred in ruling that Evridge would have been entitled to an offset of any settlement proceeds paid to the Jacksons to the extent that their total recovery exceeded their total damages. Evridge asked the trial court to take judicial notice under Alaska Evidence Rule 202, and instruct the jury, that at the time of the Jacksons’ July 25, 1997 accident Alaska followed Restatement (Third) of Torts § 16 cmt. e (2000), which provides that an injured person can recover more than 100 percent of his or her damages by separately suing two severally liable defendants. Acknowledging that this court generally disfavors double recovery, the trial court denied Evridge’s motion for judicial notice, and held that an offset was permissible for the settlement proceeds from Great Alaska because the proceeds were from a non-collateral source and paid by a joint tort-feasor.

The Jacksons argue that the trial court’s ruling thwarted their attempt to argue at trial that AEI had erroneously undervalued their claims against Evridge. The Jacksons assert that they had planned to present evidence that AEI believed it was entitled to a first-dollar offset for the $1.2 million Great Alaska previously paid, and the $185,000 the Jacksons received under their underinsured motorist coverage. The Jacksohs argue on appeal that “the ruling caused [them] to restrict and curtail their arguments that AEI had misapplied the law in evaluating the likely amount of the judgment against Ev-ridge.”

The real purpose of the request was to establish as a matter of law that AEI breached its duty to Evridge to accurately assess his exposure by assuming his exposure would be reduced by anything paid to the Jacksons on behalf of Great Alaska, the other tortfea-sor. But the trial court’s ruling did not prevent the Jacksons from offering evidence that AEI improperly evaluated Evridge’s exposure. They introduced evidence about how AEI evaluated that exposure, and introduced expert testimony that AEI breached its duty when it allegedly assumed payments on behalf of Great Alaska would reduce Ev-ridge’s damages exposure. They have not explained on appeal what evidence the court’s ruling prevented them from offering, and have not demonstrated how the ruling kept them from trying to convince the jury that AEI breached its duty to Evridge.

The Jacksons also claim that AEI was able to unfairly “whipsaw” one of their experts, Bruce Gagnon, on cross-examination by asking him whether the trial court “disagreed” with the expert’s opinion that a plaintiff can “double recover for the same things.... ” But the Jacksons did not object to this brief exchange and requested no curative instruction. Moreover, their expert’s admission that this was a “debatable issue” is at odds with a contention that as a matter of law AEI must have breached its duty by allegedly thinking the Jacksons could not recover twice for the same things. Finally, the expert’s subsequent testimony on cross-examination continued to express his opinions that AEI should not have assumed an offset.

We hold that the Jacksons have not demonstrated that the trial court’s ruling actually impaired their ability to argue that AEI undervalued their claims against Evridge. We therefore need not reach the substance of the underlying several liability issue.

IV. CONCLUSION

We therefore AFFIRM the judgment.

MATTHEWS, Justice, not participating.

      . Following the dismissal, the Jacksons are the only remaining appellants. We therefore refer to the appellants as “the Jacksons.”

      . Id.

      . Id.

      . Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska 2002).

      . See Chenega Corp. v. Exxon Corp., 991 P.2d 769, 780 (Alaska 1999); Clary Ins. Agency v. Doyle, 620 P.2d 194, 201 (Alaska 1980).

      . See 75A Am.Jur.2d Trial § 1142 (2002) (noting that "an instruction which correctly states the law and is based on competent evidence is not erroneous merely because not in consonance with the theories of either party").

      . Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979).

      . Schultz v. Travelers Indem. Co., 754 P.2d 265, 266-67 (Alaska 1988).

      . Id. at 267.

      . Crisci v. Sec. Ins. Co., 66 Cal.2d 425, 58 Cal. Rptr. 13, 426 P.2d 173, 176 (1967) (quoting Comunale v. Traders & Gen. Ins. Co., 50 Cal.2d 654, 328 P.2d 198, 201 (1958)).

      . Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 768 (Alaska 1992) (quoting Schultz, 754 P.2d at 267).

      . O.K. Lumber Co. v. Providence Washington Ins. Co., 759 P.2d 523, 525 (Alaska 1988).

      . The trial court stated that the standard .for deciding the reasonableness of AEI's refusal to settle with the Jacksons was whether there was a "reasonable likelihood,” rather than a- "substantial likelihood,” of an excess judgment against Evridge. The Jacksons do not object to the trial court's substitution. We will therefore rely in this case on the reasonable likelihood standard. Cf. Schultz, 754 P.2d at 266-67 (applying "substantial likelihood” standard).

      . 608 P.2d 281, 293 (Alaska 1980) (emphasis omitted) (quoting J. Appleman, Insurance Law and Practice § 4687, at 1780 (Berdal ed.1979)).

      . Barrett v. Era Aviation, Inc., 996 P.2d 101, 105 (Alaska 2000).

      . Id. (quoting Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992)).

      . Conam Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 153 (Alaska 1992).

      . Id. (emphasis omitted).

      . Henry v. State, 861 P.2d 582, 589 (Alaska App.1993) ("[W]e will not find plain error when there appears to have been a tactical reason to withhold objection."); see also Massey v. State, 771 P.2d 448, 453 (Alaska App.1989).

      . 777 P.2d 1152, 1154-57 (Alaska 1989).

      . L.C.H. v. T.S., 28 P.3d 915, 919 (Alaska 2001).

        . Id. (quoting Belluomini v. Fred Meyer, Inc., 993 P.2d 1009, 1016 (Alaska 1999)).

      . The Jacksons were injured on July 25, 1997. As of that date, AS 09.17.080 provided:
      Apportionment of damages, (a) In all actions, involving fault of more than one party to the action, including third-party defendants and persons who have been released under AS' 09.16.040, the court, unless otherwise agreed by all parties, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating
      (1) the amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
      (2) the percentage of the total fault of all of the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under AS 09.16.040.
      (b)In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault, and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a cause of the damages claimed and the separate act or omission of each person cannot be distinguished.
      (c) The court shall determine the award of damages to each claimant in accordance with the findings, subject to a reduction under AS 09.16.040, and enter judgment against each party liable. The court also shall determine and state nn the judgment each party’s equitable share of the obligation to each claimant in accordance with the respective percentages of fault.
      (d) The court shall enter judgment against each party liable on the basis of several liability in accordance with that party's percentage of fault.
      AS 09.17.080 was amended in 1997, but that amendment only affected causes of action accruing on or after August 7, 1997. Ch. 26, § 55, SLA 1997.

      . Cf. Alaska R. Evid. 103(a)(2) (precluding parties from challenging trial court rulings that have the effect of excluding evidence unless "the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked”).

      . Because we uphold the jury verdict, we do not need to consider AEI's alternative argument that the Jacksons, as unnamed parties to the suit below, do not have standing to bring this appeal. We also do not need to address AEI’s argument that because the duty to pay an excess judgment would only arise after a judgment was entered, and the Jacksons' underlying case never proceeded to trial, Evridgé's bad faith claim was not mature.


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    Neil K. CLINE, Appellant, v. Debra S. CLINE, Appellee.
    No. S-10821.
    Supreme Court of Alaska.
    April 30, 2004.

      Neil K. Cline, pro se, Anchorage.
    Dorothea G. Agüero, Anchorage, for Ap-pellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Federal law provides that a state court has the power to divide a military pension in a divorce case, but caps the amount that can be distributed to the non-military spouse at fifty percent. Because the superior court awarded sixty-two percent of the military spouse’s pension to the non-military spouse, and because the court did not adjust the award when the military spouse received disability benefits in place of retirement benefits, we reverse the superior court’s decision

II. FACTS AND PROCEEDINGS

Neil Cline and Debra Lopez (formerly Debra Cline) were married in January 1984 in Peru, Indiana. They have three children, born in 1984, 1986, and 1987. The couple separated in April 1991 and their divorce trial was held before Superior Court Judge Peter A. Michalski in June 1992. A decree of divorce was entered shortly after trial. Neil was granted sole custody of the children, but Debra was given liberal visitation provided that she continued to live in Anchorage. Debra was ordered to pay child support pursuant to Alaska Civil Rule 90.3.

At the time of the divorce trial, Neil was preparing to retire from the military. As part of the property division, the court distributed Neil’s military retirement, the exact amount of which had not yet been determined. The court made the following finding:

The court finds that it is proper to use the date of trial of June 1992 for the date of distribution for the military retirement earned by Mr. Cline during the marriage. The court finds that approximately eighteen (18%) of the retirement was earned during the marriage. The court hereby orders that Five Hundred Dollars ($500.00) a month is awarded to Ms. Cline as her share of the retirement. The court further finds that it would be fair and equitable to leave the issue of military retirement available to be reopened for future calculation if it is so warranted.

On August 27, 1992, after the findings of fact were submitted to the court, but before they were signed, Neil filed a motion for reconsideration. In his motion, Neil explained "that since the conclusion of the trial, he had begun to receive his military retirement in the amount of $799.09 per month. Because $500 greatly exceeded eighteen percent of his retirement, Neil asked the court to adjust the award to $143.83 per month. Without discussion, the court denied Neil’s motion for reconsideration of the order dividing his retirement on September 29, 1992. Neil did not appeal the court’s denial.

On May 29, 2002 — nearly ten yeax*s later— Debra filed a motion seeking payment for past due retirement benefits awarded to her in the 1992 property division. In the memorandum accompanying her motion, Debra maintained that she had never received any portion of Neil’s retirement despite having asked him to begin paying her. She requested a lump sum payment of $60,000, the amount she should have received between June 1992 and June 2002, plus $6,300, representing prejudgment interest calculated at a rate of ten and one-half percent, for a total award of $66,300. Debra also asked for attorney’s fees and postjudgment interest calculated at a rate of four and one-quarter percent.

Neil objected to Debra’s motion and concurrently filed a motion to amend the original judgment, asking the court to reopen the issue of military retirement as provided for in its 1992 order, since the $500 award actually amounted to approximately sixty-two percent of his $800 monthly military retirement. Neil maintained that he had thought it was incumbent upon Debra to contact the military to arrange for them to pay her directly. He claimed that he did not believe it had been his responsibility to pay her and therefore he had never done so. Invoking Alaska Civil Rule 60(b)(6), which gives courts discretionary authority to relieve a party from a final judgment, Neil asked the court to retroactively modify the divorce decree to align his payments to Debra more closely to the eighteen percent figure.

Debra contested Neil’s characterization of the facts, claiming that she had asked him to begin paying her approximately five years earlier and had explained to him that her attempts to arrange to be paid directly by the military were unsuccessful. She maintained that Neil had refused to pay her even part of the award, based on his belief that the amount had been calculated incorrectly. Debra claimed that until she consulted with her present attorney, she was unaware that she could obtain a judgment from the court to collect the past due payments. Each party argued that the other’s motions should be barred by laches or estoppel.

Judge Michalski ruled on both parties’ motions on July 30, 2002. He first noted that “Mr. Cline has not previously sought a timely correction of what facially sounds like an error when he claims his monthly retirement never exceeds $800 per month.” Accordingly, the court denied any retroactive relief. Based on Neil’s 2001 tax return, which had been filed in connection with the parties’ arguments regarding child support, Judge Michalski then determined Neil’s retirement to be $18,815.40, and calculated eighteen percent of that amount to be $245.78 per month. Because the court had retained jurisdiction over the case to address modification of the distribution of military retirement, the court prospectively amended the award to $245.78 per month from the date the motion was filed.

Neil filed a motion for reconsideration, citing his August 27, 1992 motion for reconsideration in response to Judge Michalski’s statement that he had not previously sought a timely correction of the divorce decree. Neil asked the court to amend the original decree to reflect an award of eighteen percent of Neil’s military retirement, without attaching a specific dollar amount. Neil then stated that he was about to begin receiving disability payments from the military, which would reduce his retirement by $199 per month. Given this reduction, Neil asked the court to adjust the prospective amount owed to Debra to $209.96 per month. The superi- or court denied Neil’s motion for reconsideration without explanation.

The court entered final judgment in September 2002. The court required Neil to pay Debra the amount past due and amended the divorce decree from that point forward. Specifically, the court’s order stated:

Defendant having moved this court to amend the Decree of Divorce regarding the amount of retirement to be paid to Debra Lopez, formerly Cline, as her marital share, and this court having considered the opposition, and being fully advised in the premises, finds that there is cause to reduce the previously ordered amount of $500 per month to $245.78, which represents the marital share due to Debra Lopez. However, this reduction shall have prospective effect only from the date Mr. Cline filed his Motion to Amend Decree. Therefore, Mr. Cline shall pay $245.78, effective June 18, 2002, and payable on July 1, 2002 and the first day of each month thereafter.

According to the court’s calculations, Neil owed Debra $93,221.39, consisting of $60,491.56 in principal, $32,254.82 in prejudgment interest, and $475.01 in attorney’s fees.

Neil appeals. While he has been represented by counsel in all prior proceedings, he is representing himself pro se on this appeal.

III. STANDARD OF REVIEW

‘We will not overturn a trial court’s decision to modify a decree adjudicating property rights except upon a showing that the court has abused its discretion.” We will find an abuse of discretion only when we are “left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling.”

Similarly, we will not reverse a trial court’s decision on a motion for reconsideration absent an abuse of discretion.

Because prejudgment interest is awarded under Alaska law largely as a matter of course rather than as a matter of discretion left to the trial court, we review the trial court’s application of the prejudgment interest statute de novo.

IV. DISCUSSION

Neil argues that, because the superior court admitted that the amount awarded to Debra in the court’s initial order was erroneous, his Civil Rule 60(b) motion to retroactively correct the error in the court’s original calculation should have been granted. In addition to challenging the court’s failure to correct its calculation error, Neil argues that the superior court’s order violated the Uniformed Services Former Spouses’ Protection Act (USFSPA), a federal law that authorizes state courts to include federal military retirement pay in dividing of marital property. Debra responds that the court acted within its discretion in refusing to retroactively amend the original order pursuant to Civil Rule 60(b). Debra does not address Neil’s claim that he is entitled to relief based on the conflict between the court’s decision and federal law. For the reasons that follow, we conclude that Civil Rule 60(b)(4) applies to attempts to retroactively modify past arrear-ages where the underlying judgment is void or partially void as a matter of law, and that a property division order that directs more than fifty percent of a spouse’s military retirement to the other spouse conflicts with federal law and is, to that extent, void.

A. Civil Rule 60(b)(4) Provides a Basis for Relief if a Judgment is Void as a Matter of Law.

The parties focus their arguments concerning the availability of relief from judgment on differing provisions of Civil Rule 60(b). While the first five sections of that rule provide relief in specific circumstances, Neil relies on subsection (6), the final, “catch-all” provision of the. rule that allows for relief for “any other reason justifying relief from operation of the judgment.” He points to the superior court’s recognition that the original order was erroneous and argues that its failure to correct the mistake is a sufficient reason justifying relief from the judgment. Debra responds that subsection (6) may only be used when subsections (1) through (5) do not apply, and argues that Neil’s claim for relief should have been brought under subsection (1) because he earlier characterized the court’s action as a “mathematical error.” Because relief under subsection (1) must be sought within one year of the original order, Debra argues that Neil’s motion is untimely.

There is no question that Civil Rule 60(b) governs motions to modify an order or judgment for property division. This rule provides:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a'new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the date of notice of the judgment or orders as . defined in Civil Rule 58.1(c). A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant not personally served, or to set aside a judgment for fraud upon the court.

Neil argues that the court’s initial property division violated the USFSPA, which provides that no more than fifty percent of a recipient’s military retirement may legally be awarded to a former spouse under state law. As we have noted previously, the USFSPA was enacted to provide state courts with the option to “ ‘consider military retirement pay in effecting an equitable and just property division.’ ” Relevant to this case are sections (c) and (e) of the USFSPA. Section (c) provides state courts with the authority to treat retired pay as marital property:

(1) Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.

Subsection (e)(1) states that “[t]he total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay.” The plain language of this statute authorizes state courts to award no more than fifty percent of a recipient’s military retirement in a property division. We next consider whether a state trial court exceeds its jurisdiction when it awards more than fifty percent of a spouse’s military retirement in a property division. For the reasons that follow, we hold that it does.

We considered a related issue in Clauson v. Clauson, in which an ex-wife sought modification of a property division agreement based on her ex-husband’s election to receive disability benefits in lieu of military retirement pay. (Indeed, the issue of how to treat disability benefits received in lieu of military retirement pay is also present in this ease. See discussion infra Part IV.B.) In considering the effect of the USFSPA on the ability of state courts to divide military retirement benefits, we explained:

There are actually two related but separate questions that must be answered in order to resolve this appeal. The first is whether state courts have any power, after Mansell,[] to equitably divide veterans’ disability benefits received in place of waived retirement pay. The answer to that is an unequivocal no.... Accordingly, we hold that the USFSPA prohibits our courts from distributing this type of military benefit to a former spouse when allocating property upon divorced[]

While we did not explicitly consider the issue of a state court’s jurisdiction to divide disability benefits in Clauson, we did express the opinion that state courts had been preempted by federal law from dividing such payments in the context of a property division. Our decision in Clauson was based on our reading of the federal law as stripping state courts of subject matter jurisdiction over those benefits — disability benefits received in lieu of retirement benefits — specified in the USFSPA. By the same logic, we now hold that the USFSPA bars state courts from exercising subject matter jurisdiction over more than fifty percent of a recipient’s military retirement benefits.

In the past, we have looked to the Restatement (Second) of Judgments for guidance in situations such as this. Section 11 of the Restatement provides that “[a] judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action.” But we observed that “this definition is not especially helpful, for much depends on how the term ‘type of controversy’ is defined.” We reasoned that whether a controversy is of the type a court may resolve cannot be identified by terminology alone, but rather should be determined by reference to whether the matter can more plausibly be characterized as one of subject matter jurisdiction or of merits or procedure. Section 12 of the Restatement discusses the application of res judicata if a judgment is later challenged for lack of subject matter jurisdiction, explaining that:

When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation except if:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.[]

When the issue of subject matter jurisdiction has only been implicitly resolved by virtue of a judgment on the merits and is later raised in the context of an attack on that judgment, the Restatement explains that the interests primarily at stake are not those of the parties, which earlier had the opportunity to litigate the issue of jurisdiction (whether they chose’to or not), but of the government and society. This prompts the question of

whether the public interest in observance of the particular jurisdictional rule is sufficiently strong to permit a possibly superfluous vindication of the rule by a litigant who is undeserving of the accompanying benefit that will redound to him. The public interest is of that strength only if the tribunal’s excess of authority was plain or has seriously disturbed the distribution of governmental powers or has infringed a fundamental constitutional protection.[]

In the present case, the subject matter of state courts is clearly confined to the distribution of fifty percent or less of a recipient’s military retirement. In the words of the Restatement,- the superior court’s action in distributing more than fifty percent of the military retirement “was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority.” Furthermore, while the interests of the parties themselves may be minimal given the failure to appeal the court’s initial decision (by Neil) or to seek relief for nearly ten years (by Debra), the public interest in remedying this wrong is great. Prior to the passage of the USFSPA, state courts had no authority to divide military retirement benefits at all. The USFSPA established a limited grant of subject matter jurisdiction to state courts. The supremacy clause of the federal constitution requires that state courts defer to federal law. Because allowing the superior court’s decision to stand would violate the supremacy clause of the federal constitution, we must require the property division to be retroactively modified to the extent that the division exceeds the fifty percent federal limit on state jurisdiction.

However, to the extent that the superior court’s original property division did not exceed the federal limit, that part of its order did not amount to a jurisdictional error. While the court’s expressed intent to award Debra only eighteen percent of Neil’s military retirement makes it clear that it was error to allow Debra to receive more than eighteen percent, Neil’s remedy for challenging the non-jurisdietional part of the erroneous order was to file a timely appeal. Because he failed' to do so, we remand with instructions for the superior court to modify the award of retirement benefits to fifty percent of the amount Neil received. Retroactive modification of the award to eighteen percent of his retirement benefit would allow Neil to subvert the rule that Civil Rule 60(b) may not be used as a substitute for a timely appeal.

B. Disability Benefits Received in Place of Waived Retirement Pay Are Not Subject to Equitable Division.

Neil next asserts that the court abused its discretion in denying his motion for reconsideration requesting that the court adjust the amount due to Debra by deducting his disability pay from his income. Following the court’s July 30, 2002 decision in which the court prospectively amended the payment due to Debra based on Neil’s 2001 tax return, Neil filed a motion for reconsideration under Alaska Civil Rule 77(k)(ii) and (iii) in which he stated:

A further problem has just developed in that the Defendant has just received notice that he is being awarded disability of $199.00 per month which will be subtracted from his monthly retirement checks thereby reducing the Plaintiffs claim of 18% of $16385.00 to 18% of $13997.00 or $209.96 per month. A copy of the official notice of this change is attached to Neil Cline’s affidavit.

Attached to the motion was a copy of a letter from the Department of Veterans Affairs, which appears to have been dated July 5, 2002, explaining that the department had determined that Neil would be entitled to military disability payments in the amount of $199.00 per month. While the benefit was effective April 1, 2002, Neil did not receive the first disability payment until July 1, 2002 in order to avoid the possibility of double recovery. In his reply brief, Neil maintains that, because the court did not consider all of the facts and information available to it at the time it entered its September 2002 order, and because it did not take into account the relevant information provided in Neil’s August 2002 motion for reconsideration, its decision should be reversed.

Debra counters that the superior court did not abuse its discretion in failing to consider that Neil’s retirement would be reduced by $199 in disability payments, since the issue was not raised until Neil filed his motion for reconsideration, and therefore was not properly before the court when the calculations were made. Because the issue was not properly raised before the trial court, Debra argues that it cannot be reached in the context of either a motion for reconsideration or an appeal.

Civil Rule 77(k) provides:

(1) A party may move the court to reconsider a ruling previously decided if, in reaching its decision:
(i) The court has overlooked, misapplied or failed to consider a statute, decision or principle directly controlling; or
(ii) The court has overlooked or misconceived some material fact or proposition of law; or
(iii) The court has overlooked or misconceived a material question in the case; or
(iv) The law applied in the ruling has been subsequently changed by court decision or statute.

Neil filed his motion pursuant to subsections (ii) and (iii), arguing that the court had not considered the fact that Neil had begun to receive disability pay from the military and that such pay could not be divided in the context of a property distribution under federal law. In Mansell v. Mansell, the U.S. Supreme Court unequivocally held that “the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” We recognized that holding in Clauson, stating that the answer to the question whether “state courts have any power, after Mansell, to equitably divide veterans’ disability benefits received in place of waived retirement pay ... is an unequivocal no.”

Without responding to the substance of Neil’s argument, Debra maintains that, because the issue of Neil’s disability pay was not raised in his motion to amend the original judgment, it could not be raised in the context of a motion for reconsideration. She relies on Miller v. Miller for this proposition. In Miller, a father seeking an offset to his child support obligation based on his daughter’s receipt of social security benefits derived from his eligibility for them, argued in a motion for reconsideration that he should not have been required to pay child support in the first place since he was not the child’s biological father. We rejected that argument because he had not disputed his paternity in the divorce proceedings and sought to raise the issue for the first time in a motion for reconsideration. Furthermore, since the motion for reconsideration had not been timely filed, and no good cause for lateness was shown, we held that the issue had not been properly raised at trial and therefore would not be considered on appeal.

While we have held that “a motion for reconsideration [may not] be used as a means to seek an extension of time for the presentation of additional evidence on the merits of a claim,” we were referring to information which had been available to the parties prior to the filing of the motions underlying the order for which reconsideration was sought. The information in question here did not become available to Neil until after those motions had been filed. As we have explained, the purpose of Rule 77(k) is “to remedy mistakes in judicial decision-making where grounds exist while recognizing the need for a fair and efficient administration of justice.” In this case, resolution of the issue whether veterans’ disability payments could be divided would both further the fair and efficient administration of justice and would permit the court to remedy an error in its original decision. Because these criteria have been met and because some adjustment to the parties’ property distribution must be made in order to avoid conflict with the USFSPA, and thus with the supremacy clause, we conclude that the superior court abused its discretion in failing to consider the information provided by Neil in his motion for reconsideration.

C. Calculation of Award for Payments Past Due

Neil also contests the award of prejudgment interest, arguing that “[i]nterest should only accrue from the date of judgment, not prior years.” The superior court ordered Neil to pay prejudgment interest based on its judgment of payments past due from June 12, 1992 to August 19, 2002. While the award of interest was justified, the superior court miseharacterized the collection action as a judgment rather than a writ of execution of an existing judgment.

The superior court entered an order on June 12, 1992 ordering Neil to pay Debra $500 per month as her share of the military retirement benefits earned by Neil during marriage. In State, Department of Revenue, Child Support Enforcement Division ex rel. Inman v. Dean, we held that efforts to collect past due alimony payments ordered by decree, like actions to collect past due child support, involve periodic support obligations that are “judgments that vest when an installment becomes due but remains unpaid.” This reasoning is equally applicable to past-due installment payments of marital property. Accordingly, each monthly payment owed to Debra pursuant to the 1992 court order was a judgment that vested when it became due and payable. Postjudgment interest accrues on these sums at the statutory rate as prescribed by AS 09.30.070(a), and different interest rates will apply to judgments vesting in different years. On remand, the trial court should determine the interest rate in effect during each year encompassed in the court’s modified judgment, and then recalculate the amount of post-judgment interest owed based on the date of accrual of each enforceable obligation and the interest rate in effect at that time during the year it accrued.

IV. CONCLUSION

Because the superior court’s decision conflicts with the USFSPA, we hold that the court abused its discretion in denying Neil’s motions for relief under Civil Rule 60(b)(6) and for reconsideration of its amended order. Because different interest rates will apply to judgements vesting at different times, the court must recalculate prejudgment interest. Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

      . Clauson v. Clauson, 831 P.2d 1257, 1260 n. 4 (Alaska 1992) (citing Schofield v. Schofield, 777 P.2d 197, 202 (Alaska 1989)).

      . Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982).

      . Neal & Co., Inc. v. Ass’n of Vill. Council Presidents Reg’l Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).

      . Hofmann v. von Wirth, 907 P.2d 454, 455 (Alaska 1995).

      . City of Seward v. Afognak Logging, 31 P.3d 780, 783 (Alaska 2001). See also John’s Heating Service v. Lamb, 46 P.3d 1024, 1041 (Alaska 2002) (reviewing application of prejudgment interest rules de novo).

      . 10 U.S.C. § 1408 (West 2003). This law provides that no more than fifty percent of a military spouse's retirement may be awarded to the other spouse. At the time the original award was made in 1992, if Neil's retirement benefit was $799.09, Debra’s share would have amounted to sixty-two and one-half percent of his retirement.

      . Civil Rule 60(b)(1) provides for relief from judgments based on "mistake, inadvertence, surprise or excusable neglect,” if brought within one year of the original judgment or order.

      . Morris v. Morris, 908 P.2d 425, 427 (Alaska 1995) (quoting Allen v. Allen, 645 P.2d 774, 776 (Alaska 1982)).

      . 10 U.S.C. § 1408(e)(1) (West 2003).

      . Clauson v. Clauson, 831 P.2d 1257, 1261 (Alaska 1992) (quoting Chase v. Chase, 662 P.2d 944, 946 (Alaska 1983)).

      . As explained by the House of Representatives in amending subsection (e)(1):
      The USFSPA authorizes state courts to treat "disposable retired or retainer pay” as property and defines such pay to exclude military retired pay waived in order for the retiree to receive veterans' disability and civil service benefits....
      The law would be clarified to ensure that regardless of the number of former spouses, the aggregate amount of retired pay that would be payable to them would not exceed 50 percent of the service member’s disposable retired pay.
      H. Rep. No. 101-665, at 279-81 (1990), reprinted in 1990 U.S.C.C.A.N. 2931, 3005-06.

      . 831 P.2d 1257 (Alaska 1992).

      . Id. at 1259.

      . Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

      . Clauson, 831 P.2d at 1262.

      . Id.

      . See, e.g., Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994).

      . Restatement (Second) of Judgments § 11 (1982) (emphasis added).

      . Perry, 871 P.2d at 1154.

      . Id.

      . Restatement (Second) of Judgments § 12(1982).

      . Id. at cmt d.

      . Id.

        . See 10 U.S.C. §§ 1408(c), (e) (West 2003).

      . Restatement (Second) of Judgments § 12 (1982). See also Clauson v. Clauson, 831 P.2d 1257, 1262 (Alaska 1992) ("the USFSPA prohibits our courts from distributing [disability benefits] to a former spouse when allocating property upon divorce”); Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739, 745 (1999) ("[b]ased on the preemptive effect of the USFSPA, we conclude that federal law precludes a state court, in a dissolution proceeding, from exercising subject matter jurisdiction over VA disability benefits”).

      . McCarty v. McCarty, 453 U.S. 210, 236, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981).

      . Clauson, 831 P.2d at 1261 n. 6.

      . Article VI, § 1, cl. 2 of the U.S. Constitution states:
      This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      . Burrell v. Burrell, 696 P.2d 157, 163 (Alaska 1984).

      . 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

      . Id. at 594-95, 109 S.Ct. 2023.

      . 831 P.2d at 1262.

      . 890 P.2d 574 (Alaska 1995).

      . Id. at 576 n. 2.

      . Id.

      . Id.

      . Magden v. Alaska USA Fed. Credit Union, 36 P.3d 659, 663 (Alaska 2001); Neal & Co., Inc. v. Ass'n of Vill. Council Presidents Reg’l Housing Auth., 895 P.2d 497, 506 (Alaska 1995).

      . See id.

      . Id.

      . 902 P.2d 1321 (Alaska 1995).

      . Id. at 1323.

      . The statutory interest rate used to calculate pre- and postjudgment interest was changed in 1997. See ch. 26, §§ 18, 19, SLA 1997. Because this case involves judgments due from 1992 to 2002, both the current and former statutes will apply.