MAASSEN, Justice.
A woman died in a house fire. Her two adult children, having concluded that the cause of the fire was a neighbor's electric fish smoker, brought suit both on behalf of their mother's estate and as individuals, asserting claims for wrongful death and negligent infliction of emotional distress. The superior court concluded that their suit was barred by two-year statutes of limitations and granted summary judgment for the neighbor. The court also awarded the neighbor attorney's fees under Alaska Civil Rule 82 and entered judgment jointly and severally against the estate and the two individuals.
The plaintiffs appeal. They argue that the superior court erred in granting summary judgment because the statutes of limitations were tolled by the "discovery rule." They also argue that the court abused its discretion in assessing attorney's fees against them as individuals and in making them jointly and severally liable for the judgment. We conclude, however, that the superior court properly applied the statutes of limitations and that it did not abuse its discretion in its attorney's fees award. We therefore affirm the judgment.
Two families shared a duplex in Ketchikan. In the upper unit lived Brian Calvin with his wife and child; in the lower unit lived Tracy Harrell with her husband, Klyn Kloxin, and her mother, Winnie Sue Willis. On July 11, 2013, the duplex was destroyed by fire, and Willis was killed.
The South Tongass Volunteer Fire Department and the Alaska State Troopers responded to the fire and found Calvin, Klyn Kloxin, and Cindy Kloxin, Willis's other daughter, at the scene. Klyn Kloxin told investigators he had smelled fish smoking the night before "and assumed that Mr. Calvin was smoking fish," and Calvin confirmed that he had been operating his smoker. According to Calvin, he finished at 10:30 p.m., unplugged the smoker, removed the trays, "and as far as he knew everything was done." He
Robert Plumb, the State Deputy Fire Marshall, noted that the most severe fire damage was in the upper northwest side of the duplex. In the same corner of the building he found the remains of a Big Chief fish smoker in a pile of debris. Plumb interviewed Harrell, Calvin, and Klyn Kloxin on July 12, the day after the fire. Klyn repeated that he had smelled smoking fish the evening of July 10 and again the morning of July 11. Calvin again confirmed that he had smoked fish on his deck on the evening of July 10 but saw nothing amiss when he left for work the next morning. Klyn told another investigator, also on July 12, that "the upstairs neighbor [Calvin] had previously dumped ashes from the smoker on the ground outside" but he was not sure if this happened on July 10.
Besides the smoker, the investigators continued to actively consider several different causes, including an electrical fire originating near the roof or in the laundry room, a discarded cigarette, and "the possibility that someone intentionally set this fire." In January 2014 Harrell received a copy of Plumb's official report, which included Calvin's fish smoker as one of the fire's potential causes. In February Harrell was appointed personal representative of Willis's estate and retained a lawyer, who in turn retained a private fire investigator in June. The investigator concluded in October that it was "more probable th[a]n not" that "the fire originated on the second floor exterior deck" and that Calvin's "Big Chief smoker" was the cause.
Harrell and Cindy Kloxin
Calvin raised a statute of limitations defense and moved for summary judgment on that ground. Harrell and Kloxin argued in response that the statute of limitations was tolled by the discovery rule and that "there [were] genuine issues of material fact as to when ... [they] had sufficient information to alert a reasonable person" to a potential cause of action.
The superior court concluded that a "two year statute of limitations ... applie[d] to" all of Harrell's and Kloxin's claims. It rejected the argument that the limitations period was tolled under the discovery rule, relying on evidence that Harrell and Kloxin knew by July 12, 2013, the day after the fire, that Willis had died in the fire and that Calvin's fish smoker "was under active consideration as a possible cause" of the fire. According to the superior court, these facts would have put a reasonable person on "inquiry notice" of a potential cause of action. The court accordingly granted summary judgment to Calvin.
Calvin moved for attorney's fees under Rule 82(b)(2) as the prevailing party. The court granted Calvin's motion and also ordered that Harrell, Kloxin, and the estate be jointly and severally liable for the attorney's fees award.
Harrell, Kloxin, and the estate appeal, arguing that the superior court erred in its ruling on the statutes of limitations and abused its discretion in its award of attorney's fees.
We review a grant of summary judgment de novo.
"The superior court's decision to award attorney's fees is reviewed for abuse of discretion and is overturned only where the award is manifestly unreasonable."
Statutes of limitations are "found and approved [of] in all systems of enlightened jurisprudence."
We have adopted a multi-part test to determine when a statute of limitations begins to run and whether its running can be tolled.
Some injuries, like air crashes, do not generally occur absent negligence or wrongful conduct; in such cases the plaintiff has "an affirmative duty" at the time of injury "to investigate all potential causes of action before the statute of limitations expires."
Applying these principles to this case, we agree with the superior court's conclusion that the complaint was not timely filed. Harrell and Kloxin were on inquiry notice of their cause of action at least by July 12, 2013 — the day after the fire.
Harrell and Kloxin agree that the limitations period governing their wrongful death claim is two years,
Harrell and Kloxin argue that the superior court misapplied the discovery rule. They contend that "[o]ne of the essential elements of a cause of action is the identity of the tortfeasor," and that they did not have enough information to suspect Calvin until after July 20, 2013. As noted above, the superior court identified a number of undisputed facts that contradict this argument, including their own contemporary knowledge, relayed to the authorities, about Calvin's fish-smoking activities. But in any event, under the discovery rule a plaintiff need not have actual knowledge of any element of her cause of action for the limitations period to run; she need only have enough information to prompt a reasonable person to investigate further.
Harrell and Kloxin argue that even under "[t]he inquiry notice" rule, as properly applied, the superior court erred because they were not on inquiry notice until July 29, 2013, when Harrell and her husband received a letter from Allstate informing them of the existence of a claim against its insured, Carl Thompson, the building's owner. According to Harrell and Kloxin, this was the "first possible indication that someone may have been negligent." But the letter does not discuss the fire or its cause, and it provides no factual basis for owner liability; it merely informs the reader that a claim has been filed and identifies the adjuster who is handling the claim. It does nothing to dilute the inquiry notice Harrell and Kloxin already had about their potential claims against Calvin based on his use of the fish smoker.
To reiterate the principal facts relevant to that notice: Harrell and Kloxin knew on July 11, 2013, that there had been a fire and that it had caused Willis's death. They knew that Calvin had been smoking fish on his upstairs deck the night before. They claim they had no reason yet to suspect he was negligent, but on July 12, the day after the fire, both Harrell and her husband, in interviews with the fire chief and the fire marshal, discussed at length Calvin's fish smoker in the context of the fire and its possible causes. The fire marshal noted in his report that Klyn Kloxin, Harrell's husband, "had smelled an odor he associated with fish smoking" the evening before the fire and that he "faintly smelled the same odor in the morning." The fire chief noted that he discussed with Klyn the location of the fish smoker, Calvin's "ash disposal process," the "storage area below where the smoker would have been located," and the smell of fish smoking the night before the fire. He noted that Harrell told him she had once seen "ash in a striped pattern on the ground" below the smoker "like it had fallen though cracks of the porch."
What Harrell and Kloxin knew about the circumstances of the fire on July 12, 2013, as recorded in Harrell's and her husband's conversations with the fire marshal and the fire chief, was enough to focus a reasonable person's attention on Calvin's fish smoker as a possible cause of the fire and on the possibility that Calvin was negligent. On these undisputed facts we must conclude that the superior court did not err. Because Harrell and Kloxin were on inquiry notice of a possible claim against Calvin by at least July 12, 2013, their complaint — filed over two years later — was not timely under the applicable statutes of limitations.
The second issue on appeal concerns the superior court's award of attorney's fees. The court awarded fees jointly and severally against the individual plaintiffs and Willis's estate, which Harrell and Kloxin claim was error in two respects. First, they argue that the court erred in assessing fees against the individuals because they could not be liable for the estate's fees and "the substance of their individual claims [was] never litigated." Second, they argue that joint and several liability is the exception, not the rule, and that in imposing such liability in this case the court failed to properly weigh the fact that the individual claims were merely secondary to the estate's claim. We conclude, however, that the superior court did not abuse its discretion.
The representatives and statutory beneficiaries of a decedent's estate are liable for costs and fees only if they litigate in a personal rather than "representative" capacity.
Harrell and Kloxin argue that these claims did not make them parties in their individual capacities because the success of their emotional distress claims depended on the success of the estate's wrongful death claim, which they characterize as the "main" claim. They contend that "[t]here is no independent right to recover for bystander emotional distress; rather, the claim [depends on] success of the main claim for breach of duty."
We have held, however, that negligent infliction of emotional distress is a "personal" rather than a "derivative" cause of action.
Harrell and Kloxin further argue that "[a] review of [Calvin's] billing records... shows that all of [counsel's] time was expended in defending against the main claim [regarding the] statute of limitations." This seems correct. But the same limitations period applies to all Harrell's and Kloxin's claims, including their individual claims for negligent infliction of emotional distress.
We conclude that the superior court did not abuse its discretion in awarding attorney's fees against the individual plaintiffs.
Harrell and Kloxin also argue that the superior court erred in awarding fees jointly and severally rather than apportioning fees among the three plaintiffs — the two individuals and the estate. Whether to award joint and several fees is "within the trial court's discretion,"
Harrell and Kloxin argue that the parties' motion practice before the superior court in this case, and the court's decision on summary judgment, "had nothing at all to do with the substance or validity of the individual claims." While this is a correct statement of fact, as an argument against a fee award it is unavailing. The superior court did not reach the "substance or validity" of any claim because it granted summary judgment on statute of limitations grounds. The same limitations period applied to all claims, and Calvin's motion work in the superior court thus addressed both the estate's and the individuals' claims. Calvin's defense to all these claims involved "the same issue": namely, whether the plaintiffs were on inquiry notice of a possible claim against Calvin before July 20, 2013.
We will reverse an award of attorney's fees only if the award is manifestly unreasonable.
The judgment of the superior court is AFFIRMED.