Kasayuli et al v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ANDREW KASAYULI, et al., )
)
Plaintiffs, )
)
vs. )
)
UNITED STATES OF AMERICA, )
) No. 3:12-cv-0241-HRH
Defendant. )
__________________________________________)
O R D E R
Motion for Ruling of Law
Regarding Plaintiffs’ Claims for Damages1
Defendant moves for an order ruling as a matter of law, based upon
AS 09.55.549(h)(1), that plaintiff Andrew Kasayuli’s ability to engage in subsistence hunting
and fishing is not compensable as “economic damages” in a malpractice lawsuit.2 Simi-
larly, defendant seeks a ruling that plaintiffs’ damages claims are subject to the collateral
source statute expressly applicable to malpractice actions: AS 09.55.548.3 Plaintiffs oppose
defendant’s motion on the first foregoing issue.4 Plaintiffs do not address defendant’s
1Docket No. 28.
2See Memorandum in Support of Defendant’s Motion for Ruling of Law [etc.] at 1,
Docket No. 29.
3Id.
4Docket No. 41.
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second issue in their opposition, but do summarily mention the question of whether or not
food stamps are a collateral source.5
AS 09.55.549(b) makes provision for the recovery of both economic and non-
economic losses by persons injured by health care providers. Subsection 549(h)(1) defines
“economic damages” as:
objectively verifiable monetary losses incurred as a result of the
provision of, use of, or payment for, or failure to provide, use,
or pay for health care services or medical products, and
includes past and future medical expenses, loss of past and
future earnings, cost of obtaining domestic services, burial
expenses, loss of use of property, cost of replacement or repair,
loss of employment, and loss of business or employment
opportunities[.]
The introduction of a string of possible losses by the words “and includes” is important.
It signals that there may be other, similar categories of economic losses. See Millette v.
Millette, 240 P.3d 1217, 1220 (Alaska 2010) (“We interpret enumerated lists beginning with
‘including’ or ‘includes’ to be non-exclusive.”).
The parties disagree sharply as to whether or not loss of the products from sub-
sistence hunting and fishing should be deemed to be included with “loss of past and future
earnings” or “cost of domestic services,” the monetary value of which is expressly econom-
ic damage under subsection (h)(1). At oral argument, defendant seemed to suggest a way
in which plaintiffs could make a subsistence hunting and fishing claim fall within the
“domestic services” category. The parties might also have considered the “loss of employ-
ment” or “ loss of employment opportunities” categories of economic loss. Neither these
nor the “loss of past or future earnings” or “cost of domestic services” categories are a
perfect fit for plaintiffs’ subsistence damage claim. But all of them suggest that subsistence
hunting and fishing should be included within the definition of “economic damages.”
5Opposition to Defendant United States’ “Motion for Ruling of Law Regarding
Plaintiff’s Claims for Damages [etc.]" at 2, Docket No. 50.
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It is of course a requirement of subsection 549(h)(1) that plaintiffs produce proof
establishing an objective, verifiable monetary value of their claim for economic damages
based upon the loss of subsistence hunting and fishing. But defendant’s argument that the
absence of monetary wages or earnings paid in dollars for employment will defeat a claim
for loss of subsistence hunting and fishing proceeds places too narrow a meaning on sub-
section 549(h)(1). The definition of economic losses expressly includes loss of earnings and
employment. The subsistence lifestyle – in which the parties appear to agree that plaintiff
Andrew Kasayuli was engaged – is a culturally significant and statutorily recognized6
mode for the support of oneself and one’s family. Most city dwellers provide sustenance
for themselves and their families by wage (money) paying work, the proceeds of which are
used to buy food, housing, clothes, etc. Many residents of rural Alaska (both Native and
non-Native) engage in year-round hunting and fishing by which they acquire their food,
housing, clothes, etc., off the land or water. The effort of rural residents to support them-
selves by subsistence hunting and fishing fits well within – and is included as the functional
equivalent – of past and future earnings or employment for purposes of subsec-
tion 549(h)(1).
Therefore, plaintiffs may endeavor at trial to establish the objective, verifiable,
monetary value of lost subsistence hunting and fishing proceeds, if any.
The foregoing holding renders moot plaintiffs’ equal protection argument.
6Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3101(c),
and in particular Title VIII, § 3111. AS 16.05.258; AS 16.05.940 (31), (32), and (33), defining
subsistence hunting and fishing and use in terms of residents domiciled in rural areas.
Under ANILCA, subsistence hunting and fishing rights are available to all rural
residents without any ethnic or racial qualification. Likewise, subsistence hunting and
fishing under Alaska law is available to all Alaskans without ethnic or racial qualifications.
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In the motion for ruling of law now under consideration, the parties have discussed
the applicability of Alaska’s malpractice specific collateral source rule.7 AS 09.55.548(b)
provides:
Except when the collateral source is a federal program that by
law must seek subrogation and except death benefits paid
under life insurance, a claimant may only recover damages
from the defendant that exceed amounts received by the claim-
ant as compensation for the injuries from collateral sources,
whether private, group, or governmental, and whether con-
tributory or noncontributory.
This case involves neither collateral sources under federal programs which by law require
the Government to seek reimbursement for benefits paid, nor does it involve life insurance.
The parties are in agreement that the foregoing statute could apply in this case.
However, in a supplemental opposition brief, plaintiffs summarily argue that “AS 09.55.548
does not apply in this case, at least as a factual matter.”8 The focus of plaintiffs’ argument
is federally provided food stamp benefits. Plaintiffs argue that because Andrew Kasayuli
received food stamps prior to his injury, and presumably is still eligible to receive such
benefits, they are not a collateral source for purposes of the above rule.
Subsection 548(b) may apply in this case as to plaintiffs’ economic claim for lost sub-
sistence proceeds if the same were replaced by third parties. The above definition of col-
lateral sources expressly includes private parties or groups. However, to fall within the
foregoing collateral source rule, the benefits received by a claimant must be “compensation
for injuries.” Food stamp benefits are not provided if one has suffered injury at the hands
of a health care provider.
Defendant’s motion for ruling of law is granted in part and denied in part. Lost
subsistence hunting and fishing proceeds may be recoverable economic damages if their
7AS 09.17.070 is a generally applicable, civil damages apportionment statute (a
collateral source rule) which does not apply in this case.
8Opposition to Defendant United States’ “Motion for Ruling of Law Regarding
Plaintiff’s Claims for Damages [etc.]" at 2, Docket No. 50.
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monetary value is objectively verified in accordance with AS 09.55.549(h)(1). The Alaska
malpractice case collateral source rule, AS 09.55.548(b), applies. However, that rule applies
only to a party’s recoveries received as compensation for injuries from private, group, or
governmental sources.
Plaintiffs’ motion for ruling of law is granted in part and denied in part, as set out
above.
DATED at Anchorage, Alaska, this 22nd day of October, 2014.
/s/ H. Russel Holland
United States District Judge
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