JUNEAU, Alaska (Legal Newsline) - An elderly woman whose jewelry and prescription medication was stolen after hiring an in-home care company had her case heard on appeal by the Alaska Supreme Court, who annulled the superior court’s decision and remanded the case back to the lower court for further proceedings.

Verna Haines, now deceased, hired Comfort Keepers, who provided her with an in-home assistant, Luwana Witzleben, to care for Haines in her home daily due to health concerns.

After Witzleben was hired as Haines' personal assistant, she stole jewelry and prescription pain medication. In order to hide the fact that she was stealing medicine from Haines, Witzleben put pills back that looked like Haines’ pain medication.

In 2011, Haines filed a complaint in a state superior court against both Comfort Keepers and Witzleben. In court documents, Haines alleged, “negligent hiring, conversion assault and battery, breach of contract and unjust enrichment.” Haines also conveyed her wishes for a jury trial.

After Haines’ death, Peter Haines became the personal representative of her estate and was substituted as plaintiff, according to court documents.

Peter Haines appealed a ruling by the superior court. The court "awarded Haines no damages at all, finding that Witzleben’s tortious conduct, though 'callous,' caused Verna Haines no pain or suffering beyond what she was already undergoing."

The court later entered final judgment against Witzleben as well as a satisfaction of judgment against Comfort Keepers, though no final judgment against Comfort Keepers had been entered on the accepted Alaska Civil Rule 68 offer of judgment, the court's opinion stated.

Peter Haines appealed the decision.

The Supreme Court found the superior court should have allowed Peter Haines a jury trial, as he had wanted. It also stated the superior court made a mistake in denying Peter Haines damages and attorney fees.

Peter Haines argued that “public policy supports his theory that damages in this context should be measured by the amount of the defendant’s gain rather than the amount of the plaintiff’s loss -- the usual measure in tort cases." He argued that limiting the plaintiff’s recovery to what the plaintiff lost "rewards the thief who steals something for which the victim paid very little and sells it on the black market for a great deal more.”

The superior court said it did not award economic damages to Peter Haines because he provided no evidence of how much medication was taken and what the cost of the medication was. Noneconomic damages also were not awarded because witness testimony showed that Witzleben’s actions did not cause any further pain to Verna Haines than what she was already going through.

The Supreme Court partially disagreed with the superior court’s decision and annulled “the superior court’s entry of default and default judgment against Witzleben and remand for further proceedings consistent with this opinion. Subject to our discussion of damages and attorney’s fees, we otherwise affirm the decisions of the superior court.”

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Alaska Supreme Court
303 K Street
Anchorage, AK - 99501

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