Notice This opinion is subject to correct.docx

Notice: This opinion is subject to correction before publication
in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608,
fax (907) 264-0878, email
[email protected]
THE SUPREME COURT OF THE STATE OF ALASKA
RACHEL L. THOMAS and
STEVEN N. THOMAS, husband
and wife,
Appellants,
v.
SARAH B. ARCHER and
PEACEHEALTH MEDICAL
GROUP d/b/a KETCHIKAN
OB/GYN,

Appellees.
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) Supreme Court No. S-15372
Superior Court No. 1KE-10-00613 CI
O P I N I O N
No. 7136 – December 2, 2016
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Appeal from the Superior Court of the State of Alaska, First
Judicial District, Ketchikan, William B. Carey, Judge.
Appearances: C. Keith Stump, Port Angeles, Washington,
for Appellants. Scott J. Gerlach and Donna M. Meyers,
Delaney Wiles, Inc., Anchorage, for Appellees.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Fabe, Justice, not participating.]
MAASSEN, Justice.

I. INTRODUCTION
A woman was admitted to a hospital emergency room with
pregnancy-
related complications. The attending physician recommended
that she be transported by
mailto:[email protected]
medivac to a different facility. The woman and her husband

informed the physician that
they needed their insurer’s preauthorization for that course of
action or they could be
personally liable for the costs. The physician allegedly
promised to call the insurer and,
if it would not approve the medivac, have the hospital bear the
costs itself. But the
physician failed to contact the insurer until much later, and the
insurer declined coverage.
The couple sued the physician and the hospital, alleging that the
physician
breached her fiduciary duty by failing to obtain preauthorization
as promised; that her
promise created an enforceable contract, which was breached;
and that if there was no
contract the physician’s promise should be enforced through the
doctrine of promissory
estoppel. The superior court granted summary judgment to the
physician and hospital.
The couple appeals.
We hold that the superior court did not err when it ruled in
favor of the
physician and hospital on the claims for breach of fiduciary
duty and breach of contract,

but that genuine issues of material fact precluded summary
judgment on the claim for
promissory estoppel. We therefore reverse and remand for
further proceedings.
II. FACTS AND PROCEEDINGS
A. Facts
Rachel Thomas was admitted to the emergency room at
Ketchikan General
Hospital in October 2008 for pregnancy-related complications.1
She was seen by Dr.
Sarah B. Archer, who determined that Rachel was at risk of
premature delivery and
needed an immediate transfer to a facility better equipped to
handle her condition.
Because of weather conditions in Anchorage, Dr. Archer
recommended that Rachel be
medivacked to Swedish Medical Center in Seattle. According to
the Thomases, they told
Ketchikan General Hospital is operated by PeaceHealth Medical
Group,
which also does business as Ketchikan OB/GYN.
-2- 7136
1

Dr. Archer they could not personally afford the medivac and
needed preauthorization
from the Ketchikan Indian Corporation Tribal Health Clinic
(KIC) and the Alaska Native
Medical Center (ANMC) before they could be covered for
treatment outside of ANMC’s

Anchorage facilities.2 The Thomases allege that Dr. Archer told
them “she would
contact KIC, not to worry, that everything will be taken care of,
and that if KIC didn’t
cover it ‘we’ will.” According to the Thomases, they understood
“we” to mean the
hospital.
In the process of arranging the transfer, Steven Thomas signed
an
“Acknowledgment of Financial Responsibility,” which
cautioned that the Guardian
Flight medivac charges could be significant. Though naming
KIC as the “Payment
Source,” Steven agreed to be personally responsible for any
unpaid charges and to “save
and hold the hospital harmless therefrom.”
The Thomases were eventually billed over $23,000 by Swedish
Medical
Center and over $69,000 by Guardian Flight, the medivac
provider. The Thomases
sought payment from KIC and ANMC under their coverage plan
but were denied for
three stated reasons: (1) they failed to request preauthorization
within 72 hours of

beginning treatment or of admission to the healthcare facility;
(2) ANMC was “available
and accessible to provide the necessary medical services to the
patient”; and (3) the
Thomases lacked a referral or authorization for the transfer
from an ANMC physician.
The Thomases admit knowing about the preauthorization
requirements and that obtaining
preauthorization was ultimately their responsibility; they allege,
however, that they
boarded the flight based on Dr. Archer’s assurances that those
requirements would be
satisfied by someone else. Dr. Archer did later write KIC and
ANMC to explain her
KIC acts as an agent for the Thomases’ insurer, Contract Health
Services
(CHS).
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2

decision to have Rachel transported to Seattle, but not until May
2009, over six months
after the transfer.
B. Proceedings
In 2010 the Thomases filed suit against the hospital and Dr.
Archer
(collectively “the hospital”)3 alleging breach of fiduciary duty,
breach of contract,
promissory estoppel,4 and negligent or intentional infliction of
emotional distress. The
claims were all based on Dr. Archer’s alleged promise to
contact the Thomases’

insurance providers and ensure coverage for the expenses
related to Rachel’s transport
to and treatment in Seattle. The superior court granted summary
judgment to the hospital
on the Thomases’ fiduciary duty claim, agreeing with the
hospital’s argument that a
physician’s fiduciary duty is limited to the context of medical
treatment. The court later
granted summary judgment to the hospital on the remaining
claims, holding that the facts
as alleged did not create an enforceable contract and that there
was no actual promise to
the Thomases or substantial change in position by the Thomases
sufficient to support
their promissory estoppel claim. The court also dismissed the
claims for negligent and
intentional infliction of emotional distress, noting that the
Thomases had agreed to
withdraw them, although they had not yet done so, and had
produced no evidence or
legal authority to support the claims.5
3 The hospital and the physician shared the same counsel and
the same
litigation position on all issues.

4 The Thomases did not articulate a promissory estoppel claim
as such until
they filed their opposition to the hospital’s motion for summary
judgment on the breach
of contract claim. The superior court nonetheless considered the
promissory estoppel
claim as consistent with the Thomases’ other claims.
5 The Thomases also withdrew their claim for the costs of the
Guardian
Flight after confirming they had a separate insurance plan that
covered the medivac.
(continued...)
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The hospital moved for attorney’s fees as the prevailing party,
supporting
its motion with an affidavit that summarized its fees and
offering to file itemized billing
records under seal for in camera review. The Thomases opposed
the motion. The
superior court ordered the hospital to submit its billings for in
camera review but did not
require that they be shared with the Thomases. Following in
camera review, the court
awarded the hospital approximately $25,000 in attorney’s fees
(20% of the total billings)
and over $6,000 in costs. This appeal followed.
III. STANDARD OF REVIEW
“We review grants of summary judgment de novo.”6 “We ‘will
affirm a
grant of summary judgment if the evidence in the record
presents no genuine issue of
material fact and the moving party is entitled to judgment as a

matter of law.’ ”7
Whether there is a fiduciary duty and whether promissory
estoppel applies
are both questions of law to which we apply our “independent
judgment, adopting the
rule of law that is most persuasive in light of precedent, reason,
and policy.”8
5(...continued)
Thus, only the expenses of treatment at Swedish Medical Center
remain at issue.
6 Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 516
(Alaska 2014)
(citing Hurn v. Greenway, 293 P.3d 480, 483 (Alaska 2013)).
7 Copper River Sch. Dist. v. Traw, 9 P.3d 280, 283 (Alaska
2000) (quoting
Davis v. Dykman, 938 P.2d 1002, 1006 (Alaska 1997)).
8 Beal v. McGuire, 216 P.3d 1154, 1162 (Alaska 2009) (citing
K & K
Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 724 n.66
(Alaska 2003)) (fiduciary
duty); Ross v. State, Dep’t of Revenue, 292 P.3d 906, 909
(Alaska 2012) (citing Hidden
Heights Assisted Living, Inc. v. State, Dep’t of Health & Soc.
Servs., Div. of Health Care
Servs., 222 P.3d 258, 268 (Alaska 2009)) (promissory estoppel).
-5- 7136

IV. DISCUSSION
The Thomases argue three substantive points on appeal: (1) that
the
superior court erred by deciding that Dr. Archer did not owe the
Thomases a fiduciary
duty to contact KIC for authorization after having promised to
do so; (2) that the superior
court erred by deciding on summary judgment that the parties’
words and actions did not

create an enforceable contract; and (3) that the superior court
erred by rejecting
promissory estoppel as a basis for enforcement of Dr. Archer’s
alleged promise to the
Thomases.9
“Alaska Civil Rule 56 provides for judgment to be granted to a
party where
‘there is no genuine issue as to any material fact’ and ‘the
moving party is entitled to
judgment as a matter of law.’ ”10 “[A] party seeking summary
judgment has the initial
burden of proving, through admissible evidence, that there are
no disputed issues of
material fact and that [it] is entitled to judgment as a matter of
law.”11 “Once the moving
party has made that showing, the burden shifts to the non-
moving party ‘to set forth
specific facts showing that he could produce evidence
reasonably tending to dispute or
contradict the movant’s evidence and thus demonstrate that a
material issue of fact
exists.’ ”12 The court “draw[s] all reasonable inferences in
favor of the non[-]moving

9 The Thomases also appeal the superior court’s award of
attorney’s fees and
argue they should be awarded the costs and fees associated with
appeal, but we do not
find it necessary to reach these issues.
10 Christensen, 335 P.3d at 517 (quoting Alaska R. Civ. P.
56(c)).
11 Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760
n.25 (Alaska
2008) (citing Shade v. Co & Anglo Alaska Serv. Corp., 901
P.2d 434, 437 (Alaska
1995)).
12 Christensen, 335 P.3d at 517 (quoting State, Dep’t of
Highways v. Green,
586 P.2d 595, 606 n.32 (Alaska 1978)).
-6- 7136

party.”13 “We require only that the evidence proposed for trial
must not be based entirely
on ‘unsupported assumptions and speculation’ and must not be
‘too incredible to be
believed by reasonable minds.’ ”14 “After the court makes
reasonable inferences from
the evidence in favor of the non-moving party, summary
judgment is appropriate only
when no reasonable person could discern a genuine factual
dispute on a material issue.”15
Accordingly, for purposes of our review of the superior court’s
decision on
summary judgment, we assume that Dr. Archer made the
statement, as described by the
Thomases, “that she would contact KIC, not to worry, that
everything will be taken care
of, and that if KIC didn’t cover it ‘we’ will.”

A. The Superior Court Did Not Err By Granting Summary
Judgment To
The Hospital On The Thomases’ Fiduciary Duty Claim.
The Thomases first argue that the superior court erred by
granting summary
judgment on the Thomases’ claim that Dr. Archer “owed a
fiduciary duty to [the]
Thomases to contact KIC for authorization as she promised.”
The superior court noted
in its order that “the parties do not dispute the existence of a
fiduciary relationship, only
the scope of the duties that relationship imposes.” The court
cited two Alaska cases
discussing fiduciary duties16 and relied heavily upon an
unpublished Ohio decision with
facts and arguments similar to those here, Northern Ohio
Medical Specialists, LLC v.
13 Greywolf v. Carroll, 151 P.3d 1234, 1240 (Alaska 2007).
14 Christensen, 335 P.3d at 520 (first quoting Peterson v. State,
Dep’t of Nat.
Res., 236 P.3d 355, 367 (Alaska 2010); then quoting Wilson v.
Pollet, 416 P.2d 381, 384
(Alaska 1966)).
15 Id. (internal citations omitted).
16 Pedersen v. Zielski, 822 P.2d 903 (Alaska 1991); Greater

Area Inc. v.
Bookman, 657 P.2d 828 (Alaska 1982).
-7- 7136
Huston. 17 These precedents, the superior court decided,
“indicate that the duties imposed
by the physician-patient fiduciary relationship should be kept to
matters involving

medical treatment and advice, which are not at issue here.” The
court observed that the
fiduciary relationship could nonetheless be relevant to the
Thomases’ promissory
estoppel claim as evidence of the reasonableness of their
reliance on what the doctor told
them.
We discussed the scope of a physician-patient fiduciary duty in
Pedersen
v. Zielski. 18 The plaintiff brought a malpractice action against
a hospital and the surgeons
who operated on him following a car accident; the trial court
ruled that the action was
barred by the statute of limitations.19 We reversed, holding that
there were genuine
issues of material fact as to whether the plaintiff’s doctor
should be estopped from
relying on the statute of limitations when he failed to disclose
to the patient that a likely
cause of his permanent paralysis was the surgery rather than the
underlying accident.20
Of importance here, we explained why the physician-patient
relationship gives rise to a
fiduciary duty of full disclosure:

The physician-patient relationship is one of trust. Because
the patient lacks the physician’s expertise, the patient must
rely on the physician for virtually all information about the
patient’s treatment and health. A physician therefore
undertakes[] not only to treat a patient physically, but also to
respond fully to a patient’s inquiry about his treatment, i.e.,
17 No. E-09-13, 2009 WL 3683632 (Ohio App. Nov. 6, 2009).
18 822 P.2d at 909.
19 Id. at 905.
20 Id. at 905, 908-09.
-8- 7136

to tell the patient everything that a reasonable person would
[21]want to know about the treatment.
In Northern Ohio Medical Specialists, the plaintiff, whose case
had been
dismissed on the pleadings, argued on appeal that he had
pleaded “sufficient, operative
facts to support recovery under his claims that a doctor, . . .
[has] a fiduciary duty to
submit claims to an insurance company when he promises to do
so.”22 The Ohio
appellate court recognized that a fiduciary duty is “[a] duty to
act for someone else’s
benefit, while subordinating one’s personal interests to that of
the other person.”23 But
the court held that while “[a] physician undisputedly owes a
fiduciary duty to his or her
patient with respect to diagnosing and treating diseases and
injuries,” no such “duty
extends beyond the medical relationship”; accordingly, the
physician’s fiduciary duties

did not include submitting insurance claims after promising to
do so.24
This reasoning is consistent with our description of the
physician’s
fiduciary duty in Pedersen. A physician’s expertise in the
practice of medicine is unique,
respected, and highly valued. The patient, lacking that
expertise, relies on the
physician’s judgment and care and is especially vulnerable to
the physician’s mistakes;
21 Id. at 909 (emphasis added; original emphasis omitted); see
also Carson v.
Fine, 867 P.2d 610, 617 (Wash. 1994) (en banc) (“The
[physician-patient fiduciary]
relationship is predicated on the proposition that the physician
has special knowledge and
skill in diagnosing and treating diseases and injuries and that
the patient has sought and
obtained the services of the physician because of this
expertise.” (first citing 70 C.J.S.
Physicians and Surgeons § 58 (1987); then citing 61 AM. JUR.
2D, Physicians, Surgeons
and Other Healers § 167 (1981))).
22 2009 WL 3683632, at *1.
23 Id. at *2 (alteration in original) (quoting Fiduciary Duty,
BLACK’S LAW
DICTIONARY (6th ed. 1990)).

24 Id. (citing Tracy v. Merrell Dow Pharm., Inc., 569 N.E.2d
875, 878-79
(Ohio 1991)).
-9- 7136
the law protects the patient’s vulnerability by imposing on the
physician a heightened
duty of care when the physician is acting within the scope of

that expertise. 25
At the heart of this case are two different statements attributed
to Dr.
Archer. The first and undisputed one is her recommendation that
Rachel be immediately
transported by medivac to a hospital that was better equipped to
treat her pregnancy-
related complications. The second is Dr. Archer’s alleged
promise that she would obtain
preauthorization for the transport costs from the Thomases’
insurance providers and that
the costs would otherwise be covered by the hospital. The first
recommendation is
plainly within the scope of Dr. Archer’s fiduciary duty;
determining whether a transport
was necessary was a matter of medical expertise on which the
Thomases had little choice
but to rely. The alleged promise regarding insurance and
payment, on the other hand,
did not stem from Dr. Archer’s special expertise as a physician.
The Thomases
themselves knew about the preauthorization procedure, having
followed it already that
evening when Rachel was admitted to the emergency room. The

Thomases did not need
Dr. Archer’s special expertise in order to understand the
requirements of their insurance
coverage and to obtain the required preauthorization.
Because the physician-patient fiduciary duty exists to protect
the vulnerable
patient relying on the physician’s special expertise in medicine,
a physician’s promise
25 See, e.g., Brown v. Wells Fargo Bank, NA, 85 Cal. Rptr. 3d
817, 835 (Cal.
App. 2008) (“Fiduciary obligations ‘generally come into play
when one party’s
vulnerability is so substantial as to give rise to equitable
concerns underlying the
protection afforded by the law governing fiduciaries.’ ”
(quoting City of Hope Nat’l Med.
Ctr. v. Genentech, Inc., 181 P.3d 142, 152 (Cal. 2008))); Dayna
Bowen Matthew,
Defeating Health Disparities — A Property Interest Under the
Patient Protection and
Affordable Care Act of 2010, 113 W. VA. L. REV. 31, 38
(2010) (“[I]n the physician
patient relationship, superior expertise, knowledge, and skill
place doctors in the position
of fiduciaries, and the dependent vulnerability of patients in
their care are the
beneficiaries [sic].”).
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to obtain preauthorization of medical treatment for purposes of
insurance coverage is
outside the scope of the physician’s fiduciary duty. The superior
court did not err when
it granted summary judgment to the hospital on the Thomases’
breach of fiduciary duty
claim.26
B. The Superior Court Did Not Err By Granting Summary
Judgment To

The Hospital On The Thomases’ Breach Of Contract Claims.
The Thomases also challenge the superior court’s conclusion on
summary
judgment that Dr. Archer’s alleged promise about insurance and
payment did not give
rise to an enforceable contract. The court decided that “[t]he
most apparent shortcoming
of the alleged contract is the lack of consideration” because in
response to Dr. Archer’s
alleged promise the Thomases “made no return promise, and
[the hospital] sought
none.”27 The court rejected the Thomases’ contentions that
return consideration could
be found in either (1) the detriment to them when they failed to
get preauthorization or
26 We also reject the Thomases’ argument that Dr. Archer’s
statements
expanded the scope of what in normal circumstances would be
the ordinary physician-
patient fiduciary duty limited to medical matters. If Dr.
Archer’s promise to obtain
preauthorization created a duty to act, it was not a duty based
on her special expertise as
a physician.
The Thomases also argue, most extensively in their reply brief,
that by
making the alleged promise Dr. Archer agreed to act as their

agent, thus creating another
type of fiduciary duty. But the Thomases did not advance an
agency theory in the
superior court, instead focusing exclusively on the fiduciary
duty inherent in the
physician-patient relationship. “It is well established that
matters not raised at trial will
not be considered on appeal.” Doyle v. Doyle, 815 P.2d 366,
372 (Alaska 1991) (quoting
Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987)).
27 “The formation of an express contract requires an offer
encompassing its
essential terms, an unequivocal acceptance of the terms by the
offeree, consideration[,]
and an intent to be bound.” Municipality of Anchorage v.
Stenseth, 361 P.3d 898, 906
(Alaska 2015) (alteration in original) (quoting Childs v. Kalgin
Island Lodge, 779 P.2d
310, 314 (Alaska 1989)).
-11- 7136

(2) the benefit to the hospital when the medivac to Seattle
relieved it of the responsibility
of caring for Rachel and the risk that she would lose her unborn
child while in the
hospital’s care. We agree with the court’s conclusion that the
alleged contract failed for
lack of consideration.
“We have held that ‘[t]o constitute consideration, a performance
or a return
promise must be bargained for. . . . A performance or return
promise is bargained for if
it is sought by the promisor in exchange for his promise and is
given by the promisee in
exchange for that promise.’ ”28 As the superior court reasoned,
there is no evidence that

the hospital sought a detriment to the Thomases as
consideration for Dr. Archer’s alleged
promise. While the Thomases’ failure to obtain preauthorization
is relevant to their
claim for promissory estoppel, discussed below, it does not
constitute bargained-for
consideration.
As for the benefit to the hospital conferred by Rachel’s
departure, there is
no evidence this benefit was bargained for either. It is
undisputed that the hospital did
not have the capability to manage Rachel’s medical needs and
that she had to be
transported somewhere else. Rachel testified that she would
have followed Dr. Archer’s
medivac recommendation regardless of whether there was
insurance coverage for it:
“[M]y concern was not billing at that time. It was immediate
health.” Thus, even
assuming that the Thomases’ departure conferred a benefit on
the hospital, the hospital
received no benefit in exchange for Dr. Archer’s alleged
promise; relying on Dr.
Archer’s medical advice, the Thomases were going to leave

anyway.
28 Askinuk Corp. v. Lower Yukon Sch. Dist., 214 P.3d 259, 267
(Alaska 2009)
(alterations in original) (quoting Reust v. Alaska Petrol.
Contractors, Inc., 127 P.3d 807,
811 n.4 (Alaska 2005)); see also Baker v. Ryan Air, Inc., 345
P.3d 101, 110 n.23 (Alaska
2015) (“To constitute consideration, a performance or a return
promise must be
bargained for.” (quoting RESTATEMENT (SECOND) OF
CONTRACTS § 71(1) (AM. LAW
INST. 1981))).
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Because we agree with the superior court’s conclusion that the
alleged
contract lacked the essential element of consideration, we do
not address the other
elements required for the formation of an enforceable contract.
The superior court did
not err by granting summary judgment on the breach of contract
claim.
C. It Was Error To Grant Summary Judgment On The
Thomases’
Promissory Estoppel Claim.
The Thomases next argue that the superior court erred when it
rejected their
claim that “[i]f the parties did not create a binding contract,
their agreement is
nevertheless enforceable by the doctrine of promissory
estoppel.” They argue that Dr.
Archer’s alleged promise induced them to leave the hospital
immediately without their
insurer’s preauthorization, that this was a foreseeable response
to the promise, that

because they left the hospital without preauthorization they
incurred substantial medical
expenses, and that the interest of justice is served by enforcing
Dr. Archer’s promise.
They argue that, at a minimum, a jury should have decided this
claim.
“The doctrine of promissory estoppel allows the enforcement of
contract-
like promises despite a technical defect or defense that would
otherwise make the
promise unenforceable.”29 Promissory estoppel has these
elements: “1) [t]he action
induced amounts to a substantial change of position; 2) it was
either actually foreseen or
reasonably foreseeable by the promisor; 3) an actual promise
was made and itself
induced the action or forbearance in reliance thereon; and 4)
enforcement is necessary
in the interest of justice.”30 The superior court, relying
primarily on Sea Hawk Seafoods,
29 Kiernan v. Creech, 268 P.3d 312, 315 (Alaska 2012).
30 Simpson v. Murkowski, 129 P.3d 435, 440 (Alaska 2006)
(quoting Zeman
v. Lufthansa German Airlines, 699 P.2d 1274, 1284 (Alaska

1985)); see also Dick
Fischer Dev. No. 2, Inc. v. Dep’t of Admin., 838 P.2d 263, 268
(Alaska 1992) (“A
promise which the promisor should reasonably expect to induce
action or forbearance
(continued...)
-13- 7136
Inc. v. City of Valdez, 31 held that Dr. Archer’s “alleged
promise [was] not ‘definitive,’

‘clear,’ or ‘precise’ ” enough to constitute an “actual promise.”
The court discussed what
it perceived to be “the lack of clarity in the alleged oral
promises and the lack of
unequivocal acceptance,” noting “[Steven’s] signature on the
Acknowledgment of
Financial Responsibility and [Rachel’s] deposition testimony
that . . . she would have
taken the flight to Swedish even if it was not covered.” The
court concluded that even
if all other elements of promissory estoppel were met, the
Thomases “fail to show a
substantial change in position” because of Rachel’s testimony
that she “would have gone
to Swedish even if she knew the [medivac] would not be
covered.”
We conclude that there are genuine issues of material fact about
whether
the elements of the doctrine were met. It was therefore error to
grant summary judgment
on the Thomases’ promissory estoppel claim.
1. Whether there was a substantial change of position
“Whether particular actions represent substantial changes [in

position] is
a question of all the circumstances and is not determinable by
reference to a set
formula.”32 Courts tend to “look for evidence of actual and
substantial economic loss.”33
30(...continued)
on the part of the promisee or a third person and which does
induce such action or
forbearance is binding if injustice can be avoided only by
enforcement of the promise.”
(quoting RESTATEMENT (SECOND) OF CONTRACTS § 90(1)
(AM. LAW INST. 1981))).
31 282 P.3d 359 (Alaska 2012).
32 Zeman, 699 P.2d at 1284 (citing 1A A. CORBIN, CORBIN
ON CONTRACTS
§ 200, at 216 (1963)).
33 Id. (first citing Weiner v. Romley, 381 P.2d 581, 583-84
(Ariz. 1963); then
citing Brand S Corp. v. King, 639 P.2d 429 (Idaho 1981)).
-14- 7136

In deciding that the “substantial change in position” element
was not met,
the superior court relied on the Thomases’ concession that they
would have followed Dr.
Archer’s advice regardless of whether they had insurance
coverage. Rachel testified at
her deposition that “[a]t this point, [she] would have gone
anywhere to save [her unborn]
son’s life.” She continued: “I mean, had [Dr. Archer] said you
need to go to Anchorage,
I would have gone to Anchorage. She said, you need to go to
Seattle, so I am going to

Seattle.” When asked whether she would have agreed to be
transported to Seattle “if
[she] felt that it would have saved [her] son’s life” even if there
was no insurance
coverage for it, she responded, “Again, my concern was not
billing at that time. It was
immediate health.” This testimony, the superior court
concluded, demonstrated that the
Thomases did not substantially change their position based on
Dr. Archer’s alleged
promise.
But while there is no dispute that the Thomases would have
flown to Seattle
regardless of insurance coverage, questions of fact remain
because of their assertions that
they would have called their insurance providers for
preauthorization had they not
believed that Dr. Archer was going to do so. A reasonable
person could conclude that
the Thomases substantially changed their position in reliance
upon Dr. Archer’s alleged
promise by failing to do what they otherwise would have done.
2. Whether the change in position was foreseeable

“According to Corbin on Contracts, ‘[f]oreseeability of reliance
raises a
question of fact for court and jury.’ ”34 The superior court did
not address the
foreseeability prong in its order on summary judgment, nor does
the hospital address it
on appeal, focusing its analysis instead on the elements of
changed position and actual
Simpson, 129 P.3d at 441 (alteration in original) (quoting
CORBIN ON
CONTRACTS, supra note 32, at 216).
-15- 7136
34

promise. We conclude that a reasonable person, when viewing
the circumstances of Dr.
Archer’s alleged promise — including that it was made by a
treating physician in the
context of a medical emergency — could find it was reasonably
foreseeable that the
Thomases would rely on the promise and not seek
preauthorization themselves.
3. Whether there was an actual promise
The superior court’s rejection of the Thomases’ promissory
estoppel claim
rested primarily on its conclusion that there was no “actual
promise” on which the
Thomases were entitled to rely. “When a promissory estoppel
claim is made in
conjunction with a breach of contract claim, the ‘actual
promise’ element of promissory
estoppel is ‘analytically identical to’ the ‘ “acceptance”
required for a contract.’ ”35

“Were it otherwise, promissory estoppel . . . would become a
device by which parties
could be held to contracts they did not accept.”36 “An ‘actual
promise’ is one that is
‘definitive, . . . very clear, . . . and must use precise language.’
”37 “[A] promise . . . must
‘manifest an unequivocal intent to be bound.’ ”38
The superior court, in deciding that there was no actual
promise, relied on
Sea Hawk Seafoods, Inc. v. City of Valdez, in which we
reversed the trial court’s denial
of summary judgment to Valdez on Sea Hawk’s promissory
estoppel claim.39 Valdez
35 Valdez Fisheries Dev. Ass’n v. Alyeska Pipeline Serv. Co.,
45 P.3d 657, 668
(Alaska 2002) (quoting Brady v. State, 965 P.2d 1, 11 (Alaska
1998)).
36 Id.
37 Safar v. Wells Fargo Bank, N.A., 254 P.3d 1112, 1119
(Alaska 2011)
(alterations in original) (quoting Alaska Trademark Shellfish,
LLC v. State, Dep’t of Fish
& Game, 172 P.3d 764, 767 (Alaska 2007)).
38 Id. (quoting Alaska Trademark Shellfish, 172 P.3d at 767).

39 282 P.3d 359, 361-62 (Alaska 2012).
-16- 7136
had made oral promises to Sea Hawk that it would submit a
grant application for funds,
which it would then turn over to Sea Hawk to pay for the
conversion of one of Sea

Hawk’s processing facilities.40 Valdez confirmed these
promises in a letter, indicating
that it was in the process of finalizing the application but that a
number of issues
remained to be resolved before it would accept the grant.41
After the grant application
was tentatively approved, Valdez sent Sea Hawk another letter
reiterating that it would
not accept the grant until it had reached an agreement with Sea
Hawk.42 The parties
could not agree and Valdez did not accept the grant, prompting
Sea Hawk’s suit.43
The superior court in this case noted our holding in Sea Hawk
that Valdez’s
“alleged oral promises were not sufficiently ‘definitive,’
‘clear,’ and ‘precise’ to
constitute an actual promise, particularly when considered in
conjunction with [Valdez’s]
letter.”44 The court reasoned that because “[t]he language of
[Valdez’s] alleged
promises [in Sea Hawk] . . . was more certain than in the
present case,” Dr. Archer’s
alleged promises could not be considered precise enough to
constitute an actual promise.

We do not consider Sea Hawk controlling. Valdez’s oral offer in
Sea Hawk
identified “three conditions prior to submitting the Sea Hawk
grant application,” and its
later confirming letter again noted those “conditions, informing
Sea Hawk these issues
would need to be resolved before Valdez accepted the grant
funds, and stating the parties
would need to enter [into] an agreement once the State decided
whether to award Valdez
40 Id. at 362.
41 Id.
42
Id. at 363.
43 Id. at 361, 363.
44 Id. at 367.
-17- 7136

the grant.”45 We therefore held that “even assuming [Valdez]
made such promises, [it]
alerted [Sea Hawk] that Valdez would not accept the grant
unconditionally and then
specifically outlined those conditions in the [confirming]
letter.”46 The promises in that
case instead “demonstrate[d] [that] Valdez contemplated
entering into a future agreement
with Sea Hawk addressing various issues.”47
The alleged promise at issue in this case, unlike the promises in
Sea Hawk,
was not expressly conditional. As the Thomases describe Dr.
Archer’s promise, it gave
no indication that it depended on the outcome of future
negotiations. The alleged

promise defined Dr. Archer’s role — she would contact the
insurers if the Thomases
boarded the medivac plane immediately — and it defined the
Thomases’ role — they
would board the plane without taking time to contact their
insurers. Because the
evidence could support a conclusion that the Thomases
unequivocally accepted a clear
offer, a reasonable person could conclude that there was an
“actual promise.”48
4. Whether enforcement of the promise is necessary in the
interest
of justice
“The fourth requirement, that enforcement is necessary in the
interest of
justice, presents fact questions that ordinarily should not be
decided on summary
45 Id. at 366.
46 Id. at 366-67 (emphasis added).
47 Id. at 365.
48 The superior court relied on Steven’s signing of the
Acknowledgment of
Financial Responsibility as evidence that the Thomases
were willing to assume personal
liability for Rachel’s treatment. But this evidence is

subject to different interpretations
considering the emergency circumstances and Steven’s
designation of KIC as the
“payment source,” which is consistent with the Thomases’
claim that they were relying
on Dr. Archer to contact their insurers.
-18- 7136
judgment.”49 This is a fact-intensive analysis in which
reasonable people could reach
different conclusions.
Because the Thomases identified issues of fact that precluded
summary
judgment, it was error to grant the hospital’s motion on the

Thomases’ promissory
estoppel claim.
V. CONCLUSION
We AFFIRM the superior court’s grant of summary judgment on
the
Thomases’ fiduciary duty and breach of contract claims. We
REVERSE the superior
court’s grant of summary judgment on the Thomases’
promissory estoppel claim and
REMAND for further proceedings consistent with this opinion.
The award of attorney’s
fees to the defendants as prevailing parties is accordingly
VACATED.50
49 Reeves v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142
(Alaska 1996)
(citing State v. First Nat’l Bank of Ketchikan, 629 P.2d 78, 82
n.4 (Alaska 1981)).
50 Though we vacate the attorney’s fees award, we note our
concern with the
superior court’s award of attorney’s fees to the hospital
following in camera review of
itemized billing records that were not made available to the
Thomases. We have held
that “where the rule authorizes reasonable actual fees, a court
may not award attorney’s
fees to a party who has not itemized his or her requested fees,
when the opposing party

has requested such itemization.” Roderer v. Dash, 233 P.3d
1101, 1113 (Alaska 2010)
(quoting Marron v. Stromstad, 123 P.3d 992, 1014 (Alaska
2005)). The reasonableness
requirement of Alaska Civil Rule 82 is best met by allowing a
party who may be ordered
to pay attorney’s fees to review the other party’s time and
billing records.
-19- 7136
I. INTRODUCTIONII. FACTS AND PROCEEDINGSA. FactsB.
ProceedingsIII. STANDARD OF REVIEWIV. DISCUSSIONA.
The Superior Court Did Not Err By Granting Summary
Judgment To The Hospital On The Thomases’ Fiduciary Duty
Claim.B. The Superior Court Did Not Err By Granting Summary
Judgment To The Hospital On The Thomases’ Breach Of
Contract Claims.C. It Was Error To Grant Summary Judgment
On The Thomases’ Promissory Estoppel Claim.1. Whether there
was a substantial change of position2. Whether the change in
position was foreseeable3. Whether there was an actual
promise4. Whether enforcement of the promise is necessary in
the interest of justiceV. CONCLUSION
To: Fred Cheever, Chair of DU Sustainability Council
From: Student Name
Date: February 28, 2012
RE: Eco-Friendly Paper Towels
The Sustainability Council here at DU has been successful in
achieving its goal of implementing environmentally friendly
practices around campus in the fight against global climate
change. These efforts can be seen all around DU’s campus. In
the Residence Halls and Academic Buildings, the Sustainability
council is responsible for bottle-filling stations, and all of the
recycling and composting bins. The council seems to be

committed to their goal and mission statement, which proposes
that “campuses that address the climate challenge by reducing
global warming emissions and by integrating sustainability into
their curriculum will better serve their students and meet their
social mandate to help create a thriving, ethical and civil
society.” As Chair of the Council, you well understand that
through the improvement and integration of sustainable
practices on campus, the Sustainability Council is benefiting the
environment and life at DU. Yet there is one issue that the
Sustainability Council has not yet addressed or recognized as
contributing to global climate change.
This problem consists of the current paper towel usage in the
bathrooms at DU. This paper towel usage contributes to
increases in greenhouse gas emissions and the waste output of
the university as a whole. Though this may seem like a minimal
contribution to the waste in comparison to other products that
are transported to landfills, Harvard University’s Rob Gogan
estimates that “paper towels account for 20 to 40 percent of
waste in an office building or dorm.” It is important to
recognize that not only does paper-towel usage produce a lot of
waste, but also it creates a mess for the cleaning staff,
especially in the Residence Halls, due to overflow of bins.
According to the DU Recycling Proposal, from 2008, DU
produces around 120 tons of waste each month, all of which
goes to landfills and contributes to greenhouse emissions.
Therefore if DU takes away a maximum of 40 percent of that
waste by solving the paper-towel problem, this reduces
greenhouse gas emission and benefits the environment. This is a
problem, which further inhibits the Council from reaching its
goal and upholding its mission statement.
Making a plan for paper towel usage at DU will only help the
environment and will add to the Sustainability Council’s
reputation in their effort to positively effect global climate
change. This project may not be at the top of the Council’s

priority list, but as Chair, it is important to realize that making
a change to the current system would decrease the waste output
from DU and fulfill DU’s reputation as a sustainable school,
that values its positive impact on the environment. Also as the
Chair, making this change may affect the Denver community at
large, for the reduction of waste from a major university in
Denver would in effect reduce the waste production of the
larger Denver area.
However it is understandable that the Sustainability Council has
not placed its efforts in this a change like this, considering its
preoccupation with other major projects that promote
sustainability. The Sustainability Council has been doing good
work and has dramatically changed how DU practices
sustainability. There have been many improvements to DU’s
waste management system and great efforts to reduce energy
usage on campus. For instance, Residence Halls have reduced
electricity usage by 102,962 kwh. It may seem that solving the
paper-towel issue is not as important as some of their other
projects to the Council, yet solving this waste problem could
have a significant effect on the environment and is also
essential to maintaining the Council’s goal. In the Sustainability
Management Plan, the Council states that DU is committed to
achieving their goal of a 24 percent carbon reduction by the
year 2020. This could be the next big project that could achieve
this goal and could lead to more sustainable projects in the
future.
Some of the possible solutions to the problem may also create
more reasons why the Sustainability Council has not changed
the current system. It is worth considering the expense of this
change to DU, for the current system of drying in the bathrooms
may be the least expensive and easiest method. Recycling paper
towels or using dryers may cost much more than regular paper
towel rolls. Paper towels may also be considered to be the most
sanitary, in that all the germs are contained in the one paper

towel. Therefore it is not worth the effort, money, and loss of
sanitation to switch to more eco-friendly methods. As Chair,
efficiency and cost is obviously a very important factor in
deciding which system would be implemented, yet also as
Chair, it is important to consider the degree of harm these
systems have on the environment. Are the monetary savings
worth the irreversible harm some of these products have on the
Earth’s environment?
When there are products that have considerable effects on the
environment, it seems far more valuable to uphold the
reputations and remain true to the goals of the Sustainability
Council at DU, than to save money and time. Some of the
products that are considered to be more expensive and use up
more energy, like electric dryers, may actually use less energy
than paper towels in the long run. An electric dryer may cost up
to fifteen hundred dollars, which adds up if there are at least 2
per bathroom. Yet energy consumption of the dryer, including
the energy use in the manufacturing and the actual drying of
hands, is lower than paper towel energy use, according to
Environmental Resource Management in their independent
study. While paper towels have a “global warming burden” that
is equivalent to a car traveling 6700 km, a drier has a “global
warming burden” that is equivalent to 5000 km. This is a slight
difference, yet is a slight difference that shows that he drier is
more environmentally friendly than the paper towel.
Yet there may be a method of drying that cost efficient and
good for the environment. Though using compostable paper
towels costs a little more than using regular paper towels, it is
something DU would be able to do given their current
composting system in the Dining Halls and most other buildings
on campus. Compostable paper towel rolls in a case of 12 can
cost up to 75 dollars, and regular paper towels can cost up to 50
dollars in a case of only 6, with the rolls being a little larger. In
comparison to using electric dryers, this system is much closer

in cost to the current paper towel system, as well as very good
for the environment. The Sustainability Council would simply
need to add a separate trashcan for composting paper towels in
each bathroom, perhaps beginning with the Residence Halls and
then moving to Academic Buildings. The Council has made such
huge progress in the Dining Halls alone, with their organic food
efforts, the recyclable napkins, and the compost and landfill
bins, why not now focus on the Resident Halls by changing the
waste production of paper towels in the bathrooms. It is
possible to make a dramatic change in the fight against
greenhouse gas emissions and global climate change, which is a
fight DU sees as necessary and important, without sacrificing
large amounts of money and time.
Rubic_Print_FormatCourse CodeClass CodeAssignment
TitleTotal PointsHLT-520HLT-520-O500Thomas v. Archer
Opinion Analysis80.0CriteriaPercentageUnsatisfactory
(0.00%)Less than Satisfactory (65.00%)Satisfactory
(75.00%)Good (85.00%)Excellent (100.00%)CommentsPoints
EarnedContent70.0%Analysis of the Thomas v. Archer
Opinion60.0%An analysis of the Thomas v. Archer is not
included. An analysis of the Thomas v. Archer is incomplete or
incorrect. An analysis of the Thomas v. Archer is included but
lacks detail.An analysis of the Thomas v. Archer is complete
and includes details.An analysis of the Thomas v. Archer is
extremely thorough with substantial supporting
evidence.Administrative or Legal Perspective10.0%A
description of the administrative and legal perspective is not
included. A description of the administrative and legal
perspective is incomplete or incorrect.A description of the
administrative and legal perspective is included but lacks
detail.A description of the administrative and legal perspective
is complete and includes details.A description of the
administrative and legal perspective is extremely thorough with

substantial supporting evidence.Organization and
Effectiveness20.0%Thesis Development and Purpose7.0%Paper
lacks any discernible overall purpose or organizing claim.Thesis
is insufficiently developed or vague. Purpose is not clear.Thesis
is apparent and appropriate to purpose.Thesis is clear and
forecasts the development of the paper. Thesis is descriptive
and reflective of the arguments and appropriate to the
purpose.Thesis is comprehensive and contains the essence of the
paper. Thesis statement makes the purpose of the paper
clear.Argument Logic and Construction8.0%Statement of
purpose is not justified by the conclusion. The conclusion does
not support the claim made. Argument is incoherent and uses
noncredible sources.Sufficient justification of claims is lacking.
Argument lacks consistent unity. There are obvious flaws in the
logic. Some sources have questionable credibility.Argument is
orderly, but may have a few inconsistencies. The argument
presents minimal justification of claims. Argument logically,
but not thoroughly, supports the purpose. Sources used are
credible. Introduction and conclusion bracket the thesis.
Argument shows logical progressions. Techniques of
argumentation are evident. There is a smooth progression of
claims from introduction to conclusion. Most sources are
authoritative.Clear and convincing argument that presents a
persuasive claim in a distinctive and compelling manner. All
sources are authoritative.Mechanics of Writing (includes
spelling, punctuation, grammar, language use)5.0%Surface
errors are pervasive enough that they impede communication of
meaning. Inappropriate word choice or sentence construction is
used.Frequent and repetitive mechanical errors distract the
reader. Inconsistencies in language choice (register) or word
choice are present. Sentence structure is correct but not
varied.Some mechanical errors or typos are present, but they are
not overly distracting to the reader. Correct and varied sentence
structure and audience-appropriate language are employed.Prose
is largely free of mechanical errors, although a few may be
present. The writer uses a variety of effective sentence

structures and figures of speech.Writer is clearly in command of
standard, written, academic English.Format10.0%Paper Format
(use of appropriate style for the major and
assignment)5.0%Template is not used appropriately or
documentation format is rarely followed correctly.Appropriate
template is used, but some elements are missing or mistaken. A
lack of control with formatting is apparent.Appropriate template
is used. Formatting is correct, although some minor errors may
be present. Appropriate template is fully used. There are
virtually no errors in formatting style.All format elements are
correct. Documentation of Sources (citations, footnotes,
references, bibliography, etc., as appropriate to assignment and
style)5.0%Sources are not documented.Documentation of
sources is inconsistent or incorrect, as appropriate to
assignment and style, with numerous formatting errors.Sources
are documented, as appropriate to assignment and style,
although some formatting errors may be present.Sources are
documented, as appropriate to assignment and style, and format
is mostly correct. Sources are completely and correctly
documented, as appropriate to assignment and style, and format
is free of error.Total Weightage100%

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