We have consistently maintained that "[p]unitive damages are not recoverable for breach of contract unless the conduct constituting the breach constitutes an independent tort." ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153 (Alaska 1988); see also Great Western Savings Bank v. George W. Easley Co., 778 P.2d 569, 580 (Alaska 1989) ("punitive damages are not normally allowed on a breach of contract claim unless the conduct would also be a tort"); Walt v. State, 751 P.2d 1345, 1354 (Alaska 1988) (punitive damages unavailable because claimant "assert[ed] no recognizable tort claims"); Wien Air Alaska v. Bubbel, 723 P.2d 627, 630-31 (Alaska 1986). Thus, it would seem that we must decide whether Racine's hybrid action is a "tort" for purposes of determining the availability of punitive damages.

'"Sturm, Ruger Co., Inc. v. Day, 594 P.2d 38, 46 (Alaska 1979) (quoting Restatement (Second) of Torts § 908 (Tent. Draft No. 19, 1973)), modified, 615 P.2d 621 (Alaska 1980), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), overruled on other grounds, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985); accord Great Western Sav. Bank v. George W. Easley Co., J.V., 778 P.2d 569 (Alaska 1989); Lee Houston Associates, Ltd. v. Racine, 806 P.2d 848 (Alaska 1991). Punitive damages require proof by clear and convincing evidence.

Creating a broader tort remedy would disrupt the certainty of commercial transactions and allow parties to escape contractual allocation of losses. Therefore, an action for breach of the implied covenant of good faith and fair dealing sounds in contract alone.Id.; Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 581 (Alaska 1989). Transamerica also relies on a California case, Seaman's Direct Buying Serv., Inc. v. Standard Oil Co., 36 Cal.3d 752, 206 Cal.Rptr. 354, 363, 686 P.2d 1158, 1167 (1984).

Rather, we will determine whether the evidence, when viewed in the light most favorable to the non-moving party, is such that reasonable persons could not differ in their judgment. Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 578 (Alaska 1989). The superior court called the note to the attorneys' attention and with the attorneys' approval questioned the jury about its intent.

That claim, however, would be litigated in the court of claims, not this Court. It is less clear but likely that she would have a separate claim for misrepresentation either in equity for restitution or at law for negligent or fraudulent misrepresentation. See ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153 (Alaska 1988); Great Western Sav. Bank v. George W. Easley Co., 778 P.2d 569, 580-81 (Alaska 1989); Turnbull v. LaRose, 702 P.2d 1331, 1334 (Alaska 1985) (non-disclosure). The United States has not consented to be sued for such claims.

Under Alaska law, “[i]n order to assert a claim for breach of contract, a plaintiff must generally allege: (1) the existence of a contract; (2) breach; (3) causation; and (4) damages.” Nicdao v. Chase Home Fin., 839 F.Supp.2d 1051, 1068 (D.Alaska 2012) (citing Great W. Sav. Bank v. George W. Easley Co., 778 P.2d 569, 577–78 (Alaska 1989) ; Winn v. Mannhalter, 708 P.2d 444, 450 (Alaska 1985) ). Under New York law, the elements of a cause of action for breach of contract are “(1) the existence of a contract between [the plaintiff] and [the] defendant; (2) performance of the plaintiff's obligations under the contract; (3) breach of the contract by [the] defendant; and (4) damages to the plaintiff caused by [the] defendant's breach.

And where the damage occurs may also be significant.Great W. Sav. Bank v. George W. Easley Co. , 778 P.2d 569, 577-78 (Alaska 1989) (holding that complaint alleging that defendant "had a contractual obligation to make direct payments to" plaintiff, defendant "breached this contract," and plaintiff "suffered damages" was sufficient for purposes of pleading breach of contract claim); see Nicdao v. Chase Home Fin. , 839 F.Supp.2d 1051, 1068 (D. Alaska 2012) ("In order to assert a claim for breach of contract, a plaintiff must generally allege: (1) existence of a contract; (2) breach; (3) causation; and (4) damages.").Abramoff v. Shake Consulting, L.L.C. , 288 F.Supp.2d 1, 5 (D.D.C. 2003) (concluding that although "the finalized agreement was a prerequisite to the defendants' alleged breach, ... the act of finalizing the agreement was not itself wrongful and did not directly give rise to the plaintiff's claim").

As such, there could still be a plausible meeting of the minds as to a payment of a UCR in the 80th percentile unrelated to the Alaska law as shown by the parties' course of dealing and the alleged industry norm. See Great W Sav. Bank v. George W Easley Co., 778 P.2d 569, 577-78 (Alaska 1989) (holding that complaint alleging that defendant “had a contractual obligation to make direct payments to” plaintiff, defendant “breached this contract,” and plaintiff “suffered damages” was sufficient for purposes of pleading breach of contract claim). Ashcroft, 556 U.S. at 678 (citation omitted).