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Soldotna Air, Inc. v. Estate of Duane Breitenfeld, et al (6/30/92), 835 P 2d 1215
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
IN RE: SOLDOTNA AIR CRASH )
SOUTHCENTRAL AIR, INC., )
Cross-Appellant,) File No. S-2920
v. ) 3KN 85 907/908/909/910 Civ
) 3KN 85 1001 Civ; 3AN 85 8175
ESTATE OF DUANE R. BREITENFELD, ) Civ; 3AN 86 4947 Civ
by and through his Personal )
Representative, SHARON KAY ) O P I N I O N
BREITENFELD and SHARON KAY )
BREITENFELD; ESTATE OF FRANK G.)
LAZAR, by and through the )
Personal Representative, )
PATRICIA ANN LAZAR, PATRICIA )
ANN LAZAR, individually, and )
PATRICIA ANN LAZAR, on behalf )
of BRYAN MICHAEL LAZAR and )
CHRISTINE MARIE LAZAR; MARTHA )
RIDER, Personal Representative )
of the Estate of JAMES R. RIDER, )
deceased; DEBBIE STROUD, )
Personal Representative of the )
Estate of RICK STROUD, deceased; )
JOY HODGIN, Personal )
Representative of the Estate of)
MICHAEL JAMES HODGIN, deceased; )
GAIL AULT, as Personal )
Representative of the Estate )
of FRANK AULT, deceased; )
LORNA HODGIN,individually, )
and as Personal Representative )
of the Estate of JAMES ROBERT )
Cross-Appellees.) [No. 3859 - June 30, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai and
Anchorage, Charles K. Cranston, Judge.
Appearances: Howard J. Meyer, Jr., Marc G.
Wilhelm, Richmond & Quinn, Anchorage, for
Cross-Appellant. Laurel J. Peterson, Anchor
age, for Cross-Appellees.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
MATTHEWS, Justice, joined by RABINOWITZ,
Chief Justice, dissenting in part.
This cross-appeal requires us to clarify the proper
method for assessing costs and attorney's fees in a wrongful
death action. The trial court essentially imposed liability for
costs and fees only against the various decedents' estates in
this consolidated case, despite the fact that the decedents'
personal representatives brought their wrongful death actions not
on behalf of the estates, but on behalf of statutory
beneficiaries. We conclude that the trial court erred. We thus
vacate the trial court's judgment and remand the case for
redetermination of costs and attorney's fees liability.
Seven widows, as the personal representatives of their
deceased husbands, brought wrongful death actions against
multiple defendants in this aircrash litigation.1 All of the
wrongful death actions were for the benefit of the decedents'
surviving spouses or children. Three of the widows also asserted
individual claims in their complaints.
Defendant City of Soldotna (operator of the airport
where the aircrash occurred) and North Pacific Airlines (NPA)
(operator of the aircraft) moved for consolidation of the cases;
defendant SouthCentral Airlines opposed consolidation. Likewise,
some of the plaintiffs supported and some opposed consolidation.
The presiding judge for the third judicial district, Judge
Douglas Serdahely, ordered consolidation of the cases in December
1985, under the new title In re Soldotna Air Crash Litigation.
The plaintiffs ultimately settled with defendants NPA
and City of Soldotna for some 6.15 million dollars. Defendant
South-Central did not settle. The case went to trial in Kenai on
October 26, 1987. The trial lasted five weeks, ending with a
jury verdict in favor of SouthCentral. Pursuant to Civil Rules
79 and 82, SouthCentral moved the trial court for awards of costs
and attorney's fees.2 On December 31, 1987, the superior court
issued the Clerk's Taxation of Costs, which assessed
SouthCentral's costs at $38,312.62.3 The trial court, however,
delayed entry of final judgment on the question of costs and
fees, and SouthCentral's motion for attorney's fees remained
During this period, SouthCentral made efforts to assure
that the monies plaintiffs had received by settling with the
other defendants would be available to satisfy the final judgment
for costs and attorney's fees that SouthCentral, as a prevailing
party, expected to receive. For example, in February 1988,
SouthCentral filed a claim in a proceeding, in Anchorage, in
which the superior court was considering distribution of
settlement proceeds to one decedent's minor beneficiary. See In
re Derek Rider, No. 3AN-87-1179 (Mar. 16, 1988).4 SouthCentral
claimed an entitlement to the funds before the Anchorage court.
The Anchorage court held that SouthCentral could not interject "a
creditor's claim against the wrongful death settlement proceeds."
Id. at 2.
SouthCentral eventually returned to the original trial
court, though not on its own initiative, when the personal
representative of James Rider moved for a declaration as to who
would be liable for any judgment of costs or fees in the case.
Judge Charles J. Cranston heard oral argument on the issue and
then opined, on the record, that he had discretion to determine
the amount of an attorney's fee award, but that he did not have
discretion to determine "among whom in these joint actions . . .
these [costs and fees] judgments are going to run."
Consequently, Judge Cranston also refused to determine whether
liability for costs and fees was joint and several or pro rata
among the various plaintiffs. Finally, on May 19, 1988, the
trial court entered an Order Granting Attorney's Fees in the
amount of $247,650. The order was silent as to who specifically
would be liable to pay the fee award; the order also was silent
as to whether liability was joint and several or apportioned
among the parties.5
SouthCentral immediately made efforts to protect the
enforceability of its costs and fees award (which now amounted to
a combined total of $285,962.62). On May 25, 1988, SouthCentral
obtained from the trial court a temporary restraining order
blocking the disbursement, transfer, or secretion of all funds or
proceeds of funds received by plaintiffs in their settlement.
On June 1, 1988, however, the court vacated its TRO and denied
SouthCentral's motion for preliminary injunction, finding that
SouthCentral had an adequate remedy at law in a writ of
execution. SouthCentral quickly attempted to have the clerk of
the court issue appropriate writs. On June 10, 1988,
SouthCentral obtained an order from the trial court that directed
the clerk to issue the writs. Significantly enough, in this
order the court for the first time specified that "[t]he judgment
in favor of defendant SouthCentral against plaintiffs for costs
and attorneys fees is against each plaintiff pro rata (1/7 x
$285,962.62)." Also in June 1988, as a result of SouthCentral's
efforts, the clerk of the court ordered all named plaintiffs and
statutory beneficiaries to appear for a judgment debtor exam,
while the trial court issued TROs forbidding sale or transfer of
property subject to execution of the writs. Then, on August 22,
1988, Judge Cranston issued a Clarification Order in the case.
The order states:
This Court has previously entered
an award of costs and attorneys' fees
pursuant to the appropriate civil rule to the
prevailing party, defendant in this case.
Further, this Court has issued an Order
prorating said judgement amongst the seven
complaining plaintiffs, with each plaintiff
being obligated to pay one-seventh (1/7) of
defendant's award of costs and attorneys'
IT IS HEREBY ORDERED from this
Court that the judgments against . . . the
plaintiffs shall run and be deemed to have
been entered against the plaintiffs solely as
personal representatives of their respective
estates, unless in their respective
complaints the personal representative has
also asserted an individual claim. If an
individual claim has been asserted by the
personal representative in their individual
capacity, then the judgment will also be
against that person individually. Further,
the beneficiaries of the individual estates
are not personally liable on the judgment
unless that beneficiary is also a named party
or has asserted a personal claim. . . .
IT IS FURTHER ORDERED that unless
and until shown otherwise, all judgment
debtor examinations or inquiries shall be
restricted to the personal representatives[']
actions regarding the various estates and
each estate's individual assets unless the
personal representative[s have] also asserted
[claims] in their individual capacit[ies], in
which case th[ose] personal representatives
may also be examined by the defendant as to
their personal assets and financial
transactions. In the event that a
beneficiary has been named individually or
a[n] individual claim has been made in [his
or her] behalf by [his or her]
representative, then [the beneficiary or the]
representative may be examined as to that
beneficiar[y's] personal assets and financial
transactions. (Emphasis added.)
On October 4, 1988, the trial court entered its Amended Final
Judgment, in which it reaffirmed the costs award of $38,312.62
and the attorney's fees award of $247,650:
for a total judgment of $285,962.62,
which shall accrue interest at the rate of
10.5% per annum until paid in full. Each
estate is liable on a pro rata basis for its
share of the costs and attorneys fees and is
therefore responsible for one-seventh of this
The clarification order and the amended final judgment,
taken together, make clear that the costs and fees awards were to
be chargeable against the estates (i.e., chargeable through the
personal representatives, in their official capacities, against
the estates), or against any other individually named plaintiffs
in the action. Confusingly enough, however, the court's
clarification order and amended final judgment did not constitute
the court's final word in the case. On October 21, 1988, Judge
Cranston issued a further order setting the scope of the judgment
debtor examinations, which failed to repeat the clarification
order ruling that individual plaintiffs, in addition to the
estates, might also be liable for some part of costs and fees.
As a result, after all of the trial court's orders issued, the
estates were liable for one-seventh pro rata shares of costs and
fees, and the judgment debtor exam was limited in scope "to
assets of the estates available to satisfy the judgment."
Originally, the personal representatives appealed the
jury verdict adverse to them. No issues from that appeal remain
in this case. SouthCentral cross-appealed, and it is that cross-
appeal that concerns us here.6 SouthCentral challenges three
aspects of the trial court's decision on the parties liable for
the judgment of costs and fees. First, SouthCentral asserts
that the trial court erred in its final order by imposing primary
liability for costs and fees only against the decedents' estates.
According to SouthCentral, the court should have held the
personal representatives and the statutory beneficiaries
personally liable for the costs and fees awards. Second,
SouthCentral asserts that the trial court erred by imposing pro
rata liability in the amount of one-seventh of the total
liability against each of the seven estates. SouthCentral argues
that the court instead should have entered joint and several
liability for costs and fees against each individual plaintiff,
each estate, and each personal representative. And third,
SouthCentral argues that the superior court's first clarification
order was right when it held named parties as well as the estates
individually liable for costs and fees. We consider each aspect
of SouthCentral's appeal in turn.7 In the process, we also take
the opportunity to clarify the law governing costs and attorney's
fees awards in wrongful death actions.
Alaska Statute 09.55.580 permits the personal
representatives of a decedent to bring a wrongful death action on
behalf the decedent's spouse, children, or dependents. When the
personal representative brings a wrongful death action on behalf
such surviving statutory beneficiaries, "[i]n a very real sense,
. . . it is the [beneficiaries'] cause of action." Haakanson v.
Wakefield Seafoods, Inc., 600 P.2d 1087, 1090 n.4 (Alaska 1979)
(quoting Gaudette v. Webb, 284 N.E.2d 222, 230 (Mass. 1972)).
Damages depend primarily upon the loss that the beneficiaries
have suffered. Haakanson at 1090. The personal representative
"is a nominal party only . . . [and] holds any recovery as
trustee for the statutory beneficiaries." Id. (citations
On the other hand, if (and only if) no spouse, child,
or dependent survives the decedent, then "the personal
representative is the real party in interest in the wrongful
death action. Damages are limited to the loss to the estate and
are distributed as other personal property of the deceased." In
re Pushruk, 562 P.2d 329, 331 (Alaska 1977) (footnote omitted);
see also AS 09.55.580(a).
In the present case, all personal representatives of
the seven decedents brought their wrongful death actions on
behalf of surviving statutory beneficiaries. Accordingly, any
recovery the representatives obtained as a result of their
actions, whether by settlement and release8 or by verdict, they
held as trustees for the beneficiaries. The flow of the recovery
from the settlement in this case to the beneficiaries thus did
not pass through the decedents' estates. The estates simply had
no involvement in this case at all. Consequently, the trial
court had no basis on which it could have determined that the
estates, through the personal representatives, were nonprevailing
parties for the purpose of assigning costs and attorney's fees
liability under Civil Rules 79 and 82. Accordingly, we vacate
the trial court's costs and fees decision insofar as it imposes
liability against the seven decedents' estates.
Proper entry of judgment on costs and fees is the next
issue we address. Alaska Statute 09.60.010, carries the title
"Costs and attorney fees allowed prevailing party,"and states
that "[t]he supreme court shall determine by rule or order the
costs, if any, that may be allowed the prevailing party in a
civil action." AS 09.60.010, (Supp. 1991). Pursuant to this
statute, we have determined the general availability of costs and
fees by promulgating Civil Rules 79 and 82. We also have
considered at some depth the question against whom costs and fees
might be allowed under Civil Rules 79 and 82. See, e.g., Moses
v. McGarvey, 614 P.2d 1363, 1367-68 (Alaska 1980). The present
question, however, does not primarily involve interpretation or
application of those rules. Rather, in this instance a specific
statutory limitation on the allowance of costs and fees
establishes our starting point.
Our code of civil procedure specifically addresses
costs and fees in those cases in which a party is a
In actions in which an executor, adminis-
trator, trustee of an express trust, or a
person authorized to represent a party is a
party, costs may be allowed as in other
cases. However, when costs are allowed
against that party, they are chargeable
solely upon the estate, fund, or party
represented unless the court orders the costs
to be paid by that party personally for
mismanagement or bad faith in the conduct of
AS 09.60.040.9 In our view, the legislature here has delineated
the method a court must follow in determining against whom costs
and fees may be allowed when, as in this case, a representative
is nominally the nonprevailing party in an action. We find
particularly relevant those clauses in AS 09.60.040 providing on
the one hand that costs and fees may be allowed against
representatives, but providing on the other hand that such costs
and fees "are chargeable solely upon the estate, fund, or party
As we explained, the wrongful death statute itself
precludes any assessment of cost and fee liability against the
decedents' estates because the personal representatives did not
represent those estates in their actions. Here, however, the
trial court had before it a "fund,"within the meaning of AS
09.60.040. The fund arose when all of the plaintiffs settled
with two of the defendants and dismissed with prejudice their
claims against those defendants. As the wrongful death statute
explains, "[w]hen the plaintiff prevails, the trial court shall
determine the allowable costs and expenses of the action and may,
in its discretion, require notice and hearing thereon. The
amount recovered shall be distributed only after payment of all
costs and expenses of suit and debts and expenses of
administration." AS 09.55.580(a). The trial court here should
have reserved distribution of some or all of the settlement
monies until it could determine the full extent of "costs and
expenses of suit," under AS 09.55.580. Those expenses
foreseeably included costs and fees owed to SouthCentral in the
event SouthCentral prevailed in the plaintiffs' remaining action.
Thus, under AS 09.55.580(a) and AS 09.60.040, the court should
have reserved distribution of at least an appropriate part of the
settlement fund until after the remaining action against
SouthCentral was resolved. At that point, when the court entered
judgment in favor of SouthCentral for costs and fees, the
judgment properly would have been against the personal
representatives in their official capacities, but would have been
"chargeable"only against the reserved fund.10 AS 09.60.040; see
also Haakanson, 600 P.2d at 1090 (stating that the personal
representative is a nominal party only, holding "any recovery as
trustee for the statutory beneficiaries").
SouthCentral argues against this conclusion. According
to SouthCentral, the personal representatives should be held
liable for the costs and fees judgment not only in their official
capacities, but also in their individual or personal capacities.
SouthCentral offers two separate bases for their argument.
Initially, SouthCentral brings to our attention Sloan
v. Atlantic Richfield Co., 552 P.2d 157 (Alaska 1976) (Sloan II),
in which we affirmed a judgment of attorney's fees against the
personal representative in a wrongful death action. Id. at 161.
In Sloan II, however, we did not specify in what capacity Ms.
Sloan, as a nonprevailing party in a wrongful death action, could
be held responsible for attorney's fees. Id. Ms. Sloan actually
sued "individually and as Executrix of the Estate of Moses C.
Sloan, deceased, and the children of Moses C. Sloan." Sloan v.
Atlantic Richfield Co., 541 P.2d 717 (Alaska 1975) (Sloan I).
Ms. Sloan thus was, for the purposes of her wrongful death
action, an individual plaintiff, a personal representative, and a
statutory beneficiary. We erred in Sloan II by not explicating
the basis of Ms. Sloan's liability for costs and fees. We did
not hold, however, that she was individually liable for a
judgment of costs and fees simply because she had acted as the
decedent's representative in the action. As a result, Sloan II
provides no authority for finding the personal representatives in
the present case individually liable. Nor does Sloan II conflict
with our ruling today that, under AS 09.60.040, the personal
representative who fails to prevail in a wrongful death action
cannot be held individually liable for costs and fees solely on
the basis of representative status, except when the
representative is found to have conducted the action with
mismanagement or in bad faith.
SouthCentral's alternative argument depends upon the
mismanagement or bad faith exception in AS 09.60.040. In
particular, SouthCentral argues that the personal representatives
in this case committed mismanagement by pursuing disbursement of
the settlement monies while their action against SouthCentral
remained pending. Thus, asserts SouthCentral, under the plain
language of AS 09.60.040 the representatives should be held
individually liable for costs and fees. Again, we disagree. In
the first place, we are mindful that our decision in Sloan II, by
failing to articulate the proper interplay of AS 09.55.580 and AS
09.60.040, well may have left the personal representatives
without a reasonable guide for the management of their recovery.
Moreover, we note that the representatives could obtain
distribution of the recovery only with the trial court's
approval. See AS 09.55.580(a). Consequently, we see no basis
for finding mismanagement under these facts. We conclude that
the trial court correctly refused to impose liability for costs
and fees upon the personal representatives in their individual
capacities under this rationale.
Of course, our discussion to this point does not
resolve the underlying practical problem in the case. The trial
court should have reserved some part of the plaintiffs' initial
recovery and the court should have "charged"costs and fees upon
that recovery by technically imposing liability against the
personal representatives in their official capacity. But the
court did not reserve the recovery and the fund no longer exists.
The next question, then, is whether SouthCentral may pursue satis-
faction of its costs and fees judgments despite the distribution
of the fund. We conclude that it may.
SouthCentral should have the right to trace the
distributed funds through the personal representative to each
statutory beneficiary. This remedy follows logically from section
580(a) of the Death Act, which provides that "[t]he amount
recovered shall be distributed only after payment of all costs
and expenses of suit."The trial court erred in the present case
by approving the distribution of proceeds without providing for
payment of costs including court awarded costs and attorney's
fees, as required by this statutory section.11
Accordingly, upon remand, the trial court should vacate
its original judgment on costs and attorney's fees and enter a
judgment against the personal representatives in their official
capacity. The court also should specify that the judgment is
chargeable only upon the actual beneficiaries of the settlement,
as it was distributed.
SouthCentral next appeals the trial court's decision to
assess liability for costs and fees against the multiple
plaintiffs on a pro rata basis. Relying upon Stepanov v.
Gavrilovich, 594 P.2d 30 (Alaska 1979), SouthCentral argues that
multiple nonprevailing parties should be held jointly and
severally liable for costs and fees. We disagree.
In Stepanov, we held that when a defendant prevails
against multiple plaintiffs who jointly moved for consolidation
of their cases, the trial court could impose joint and several
liability for costs and fees. Id. at 36. Such a ruling was
within the trial court's discretion. Id. (citing Karrick v.
Edes, 19 F.2d 693, 695 (D.C. Cir. 1927) (unsuccessful "united"
plaintiffs usually are jointly and severally liable for costs)).
We did not hold in Stepanov, however, that trial courts must
assign joint and several liability for costs and fees in every
Significantly enough, consolidation in the present case
was not the result of a united effort by the plaintiffs. Two of
the defendants in this litigation moved for consolidation; one
personal representative opposed it. Moreover, as SouthCentral
acknowledges, consolidation attempts began before all eventual
plaintiffs were before the court. Given these facts, we think it
is clear that Stepanov did not require Judge Cranston to impose
joint and several liability for costs and fees on the plaintiffs.
Rather, Judge Cranston had discretion to determine whether joint
and several liability was proper. He determined that it was not.
In McGarvey, we indicated that the trial courts have great
discretion to adapt awards of costs and fees to the unique
circumstances of a particular case. McGarvey, 614 P.2d at 1367-
68. That is precisely what Judge Cranston did when he imposed
pro rata liability. Thus, we find no abuse of discretion.
However, because we are vacating the underlying
decision on costs and fees liability, we hesitate simply to
affirm the trial court's pro rata liability decision. We have
ordered that the trial court, upon remand, impose liability for
costs and fees in a way that will put responsibility for payment
upon the statutory beneficiaries. We also order, then, that the
trial court shall reconsider the fairness of its original 1/7 pro
rata approach in light of the actual burden for costs and fees
that the pro rata liability now will impose upon each individual
beneficiary. See supra note 10.
In its final point on appeal, SouthCentral challenges
the trial court's refusal to order three personal representatives
who also sued individually to appear individually for judgment
debtor examinations.12 In effect, argues SouthCentral, the trial
court's debtor examination orders relieved those individual
plaintiffs of liability for costs and fees. In response, the
personal representatives argue that SouthCentral's position
relies merely upon the form of the captions in several of the
complaints and ignores the actual substance of the complaints and
the proof at trial. Thus, the personal representatives suggest,
the trial court did not commit an abuse of discretion by refusing
to find the individually named plaintiffs nonprevailing parties
for the purpose of awarding costs and fees. SouthCentral simply
ignores that argument and states flatly: "As named plaintiffs,
these parties are liable to SouthCentral on its judgment for
costs and attorney's fees." Reply Brief for Cross-Appellant at
We find SouthCentral's argument on this point totally
unpersuasive. The captions of pleadings in wrongful death
actions often carry misleading connotations. For example, the
caption of the present case on all pleadings and briefs contains
repeated reference to the decedents' estates as parties
plaintiff, and yet, as we have explained, the decedents' estates
had nothing whatsoever to do with the case. We thus are
unwilling to place significant weight upon a mere listing of
individual claims in the caption. As noted, SouthCentral has
offered no reason other than the form of the caption for
questioning the trial court's determination of who prevailed and
who did not prevail in this consolidated action. Consequently,
we must conclude that the trial court acted within its broad
discretion under Civil Rules 79 and 82 when it refused to impose
liability for costs and fees upon the individually named
plaintiffs. See CTA Architects of Alaska, Inc. v. Active
Erectors & Installers, Inc., 781 P.2d 1364, 1365 (Alaska 1989);
Myers v. Snow White Cleaners & Linen Supply, Inc., 770 P.2d 750,
752-53 (Alaska 1989).
The trial court's judgment awarding costs and
attorney's fees is VACATED in part, AFFIRMED in part, and
REMANDED for proceedings consistent with this opinion.
MATTHEWS, Justice, joined by RABINOWITZ, Chief Justice,
dissenting in part.
It would be proper to hold the personal representatives
in these cases personally liable for disbursing the settlement
funds without reserving funds sufficient for the payment of court
awarded costs and attorney's fees as they were required to do
under section 580(a) of the Death Act. The personal represent
atives, in turn, may proceed against beneficiaries for
reimbursement under equitable principles analogous to those
underlying AS 13.16.575.13 The personal representatives may have
valid defenses based on res judicata or estoppel principles if
SouthCentral was given notice of the proposed settlement disburse
ments and did not object, or if SouthCentral was given notice,
did object, and did not appeal or otherwise seek to obtain an
adjudication of its rights. Whether such defenses are available
in the individual cases should, in my view, be adjudicated on
1. AS 09.55.580(a) provides in part:
When the death of a person is caused by
the wrongful act or omission of another, the
personal representatives of the former may
maintain an action therefor against the
latter, if the former might have maintained
an action, had the person lived, against the
latter for an injury done by the same act or
omission. . . . The amount recovered, if
any, shall be exclusively for the benefit of
the decedent's spouse and children when the
decedent is survived by a spouse or children,
or other dependents. When the decedent is
survived by no spouse or children or other
dependents, the amount recovered shall be
administered as other personal property of
the decedent but shall be limited to
pecuniary loss. . . .
2. Civil Rule 79 allows the award of litigation costs and
Civil Rule 82 allows the award of partial attorney's fees to the
prevailing party in a civil action.
3. Civil Rule 79 requires a party entitled to costs to
serve its costs bill within 10 days of judgment in an action.
Within one week of receiving the costs bill, the clerk of the
court also must provide for hearing on the question of costs and
then "proceed to tax the costs"within two days of any hearing.
Alaska R. Civ. P. 79.
4. Apparently, by this time all but one of the personal
representatives in the case had concluded actions to obtain
distribution of the settlement monies to their beneficiaries.
Only Martha Rider, the personal representative for the statutory
beneficiaries of decedent James Rider, had not obtained disburse-
ment of the Rider share of the settlement by early 1988. Pre-
sumably the delay was due to the unique complexity of determin-
ing who among the numerous Rider survivors were properly
classified as statutory beneficiaries under the wrongful death
5. The relevant part of the court's order simply stated
that SouthCentral "shall receive the sum of $247,650.00
representative of attorney's fees and paralegal fees incurred
during the pretrial and trial of this matter."
6. SouthCentral has not appealed the trial court's
determination of the amount of its costs and fees judgments.
However, the parties dispute the extent to which SouthCentral, as
a creditor, has been able to satisfy the judgments against the
various decedents' estates. SouthCentral notes that the 6.15
million dollars in settlement monies were disbursed directly to
the statutory beneficiaries in the case and that the estates of
the decedents contained nothing of value "[a]side from a gun or
two and a run-down automobile." Thus, SouthCentral avers that it
has been unable to enforce its judgment. In contrast, the
personal representatives assert that SouthCentral has satisfied
its costs and fees judgment "as to some of the estates." The
personal representatives do not suggest, however, that facts in
the case have rendered the legal issues moot.
7. Generally, awards of costs under Civil Rule 79 are
within the broad discretion of the trial court, CTA Architects of
Alaska, Inc. v. Active Erectors & Installers, Inc., 781 P.2d
1364, 1365 (Alaska 1989), as are awards of attorney's fees under
Civil Rule 82, Myers v. Snow White Cleaners & Linen Supply, Inc.,
770 P.2d 750, 752 (Alaska 1989). This case, however, also
presents issues of statutory construction, which are questions of
law. As we explained in CTA Architects, we are not bound by a
trial court's resolution of questions of law, but instead we are
required to adopt the rule of law which is most persuasive in
light of precedent, reason and policy. CTA Architects, 781 P.2d
at 1365. To the extent that an award of costs or attorney's fees
is consistent with the legal principles we have adopted, the
award is committed to the broad discretion of the trial court and
will not be disturbed on appeal, absent a clear showing that the
trial court's determination was arbitrary, capricious or
manifestly unreasonable, or that it stemmed from an improper
motive. Id.; Myers, 770 P.2d at 752.
8. See Mitchell v. Mitchell, 655 P.2d 748, 751-53 (Alaska
1982) (one wrongful death action encompasses the claims of all
statutory beneficiaries, and settlement and release of the action
settles and releases all such claims).
9. Chapter 60 of the Code of Civil Procedure uses the term
"costs" in the most general sense, so that it encompasses both
expenses of litigation and attorney fees. See, e.g., AS
09.60.010. Civil Rule 79 employs a more specific and limited use
of the term.
10. The trial court's discretionary allocation of liability
for costs and fees would determine the extent to which such
liability would affect the individual shares of the settlement
that the representatives actually recovered. The court, for
example, might assign to each personal representative nominal
liability for costs and fees in proportion to the fraction of the
total amount of the settlement that each representative in the
consolidated action actually obtained for her decedent's
statutory beneficiaries. Cf. Myers v. Snow White Cleaners &
Linen Supply, Inc., 770 P.2d 750, 752-53 (Alaska 1989) (trial
court has discretionary flexibility in determining fee awards in
11. In this case, the plaintiffs recovered against two of
the three defendants named in the action. Thus, a fund from
which costs might be paid to the prevailing defendant was
created. In some cases, obviously, the result at trial will be
different: a plaintiff may not prevail against any defendant, in
which case, there will be no "fund."In these circumstances, may
statutory beneficiaries still be held liable for a prevailing
defendants' costs and attorney's fees?
The answer to this interesting question will not be
found in today's opinion. The question is not before us at this
time, and we do not decide it here.
12. These individually named plaintiffs were Sharon Kay
Breitenfeld, Patricia Ann Lazer, and Lorna Hodgin. All were
statutory beneficiaries, personal representatives, and
individually named plaintiffs.
13. AS 13.16.575 provides:
Unless the distribution or payment no
longer can be questioned because of
adjudication, estoppel, or limitation, a
distributee of property improperly
distributed or paid, or a claimant who was
improperly paid, is liable to return the
property improperly received and its income
since distribution if the distributee or
claimant has the property. If the
distributee or claimant does not have the
property, then the distributee or claimant is
liable to return the value as of the date of
disposition of the property improperly
received and its income and gain.