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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nickels v Napolilli (08/17/2001) sp-5454

Nickels v Napolilli (08/17/2001) sp-5454

     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.


RUTH NICKELS,                 )
                              )    Supreme Court Nos. S-9243/9283
            Appellant and     )
            Cross-Appellee,   )    Superior Court No.
                              )    4FA-94-2713 CI
     v.                       )
                              )    O P I N I O N
NOEL NAPOLILLI and            )
NANCY NAPOLILLI,              )    [No. 5454 - August 17, 2001]
            Appellees and     )
            Cross-Appellants. )

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                  Niesje J. Steinkruger, Judge.

          Appearances:  Richard H. Friedman and Les S.
          Gara, Friedman, Rubin & White, Anchorage, and
Susan Orlansky, Jeffrey M. Feldman, and Ruth Botstein, Feldman &
Orlansky, Anchorage, for Appellant and Cross-Appellee.  Robert B.
Groseclose, Cook, Schuhmann & Groseclose, Inc., Fairbanks, and Joe
M. Huddleston and Ronald H. Bussey, Hughes, Thorsness, Powell,
Huddleston & Bauman, LLC, Anchorage, for Appellees and Cross-

          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          FABE, Chief Justice.

          Ruth Nickels performed farm chores for Noel and Nancy
Napolilli in exchange for living in a cabin on their property and
some monetary compensation.  While she lived in this cabin, Nickels
injured both her arm and back.  Because the Napolillis did not have
workers' compensation insurance, Nickels pursued compensation for
the injuries through a lawsuit that alleged breach of the
employment contract.  The trial court dismissed Nickels's claims,
finding that the Alaska Workers' Compensation Act does not permit
a breach of contract claim based upon the employer's failure to
provide workers' compensation insurance.  Nickels's appeal
challenges that ruling.  The Napolillis' cross-appeal challenges
the superior court's determination that the workers' compensation
law applies to this case.  We affirm the superior court's dismissal
of the contract claims, as well as the trial court's finding that
Nickels was an employee covered by the workers' compensation
statutes and its referral of the matter to the Alaska Workers'
Compensation Board.  We remand to the superior court to clarify its
finding that Nickels's back injury occurred during the course and
scope of employment.
     A.   Facts
          Noel and Nancy Napolilli own and live on a forty-acre
parcel of land in Fairbanks called "Isabella Creek Farm."  The land
has a house, a log cabin, and an assortment of farm structures. 
The Napolillis operate the farm as a small business, although they
both work in full-time positions unrelated to the farm.  Isabella
Creek Farm sells animals, eggs, hay, farm equipment, and farm
implements.  The Napolillis deduct farm-related business expenses
on their federal income tax return and list the business in the
phone book and a farm products directory.
          Noel Napolilli built a two-story log cabin home on the
property near their primary residence in the mid-1980s.  To obtain
assistance with farm labor, the Napolillis established a cabin-for-
chores exchange.  Various people have lived rent-free in the cabin
in exchange for performing farm chores.
          In August 1989 Ruth Nickels responded to a newspaper
advertisement placed by the Napolillis regarding the sale of
calves.  She went to Isabella Creek Farm, where she purchased a
calf and spoke with Noel Napolilli about the farm operation.  Noel
Napolilli showed Nickels around the farm and told her about the
cabin-for-chores arrangement.  Nickels and her friend Mindy Johnson
filled out an application and in November 1989 Noel Napolilli
called Nickels to ask if she and Johnson had an interest in the
cabin-for-chores arrangement.  They did, and Nickels and Johnson
entered into a written agreement with the Napolillis to occupy the
cabin and work for eighteen months beginning in December 1989.
          The agreement called for an average of eighty hours of
labor per month, with excess hours compensated at five dollars per
hour.  The agreement also included a list of sixteen tasks and the
seasons in which Nickels and Johnson were required to perform these
jobs.  It listed daily activities such as feeding and watering
animals, seasonal activities such as harvesting and putting up hay,
and periodic activities such as servicing equipment prior to use. 
Johnson left before the end of the agreement term, but Noel
Napolilli and Nickels verbally agreed that Nickels would continue
according to the prior written agreement.
          Nickels and the Napolillis kept an extensive daily log of
farm activities and projects.  Nickels reported chores completed
and the status of animals, and wrote periodic notes to the
Napolillis.  The Napolillis' entries included instructions to
Nickels.  Nickels also used a time clock to record hours worked on
farm activities.
          While living at Isabella Creek Farm, Nickels worked for
other employers three to five days per week as a retail clerk or
security guard.  She also cared for her own animals on the farm,
including dogs, calves, a horse, goats, and a lamb.
          In June 1990 Nickels was instructed by Noel Napolilli to
nail a board to the side of a shed.  Since a fence paralleled the
shed's wall, Nickels stood on an inverted bucket to reach over the
fence and place the nails.  Standing tip-toe on the bucket, Nickels
slipped while starting to hammer a nail.  She fell and a piece of
wire from the fence impaled the back of her arm.  This resulted in
a puncture wound at the bottom of the triceps muscle of her right
          Noel Napolilli assisted Nickels in cleaning and bandaging
the wound immediately after the injury and over the course of the
next few days.  Nickels did not seek medical treatment until
approximately six days after the injury, by which time her arm had
become infected.  At that time, Nancy Napolilli's father, a visitor
on the farm, encouraged Nickels to go to the emergency room.  The
injury did not heal and Nickels's right arm was eventually
amputated at the shoulder.
          In October 1992, two years after the fall which injured
Nickels's arm, Nickels injured her back.  According to Nickels, the
injury occurred when she lifted a bale of hay over a fence. 
However, she told the Napolillis and her doctor that she suddenly
developed back pain when standing in her kitchen.
          The Napolillis did not carry workers' compensation
insurance for Nickels.  In September 1992, after the arm injury but
before the back injury, Nickels signed an agreement to release the
Napolillis from any liability for her arm injury.  On October 3,
1992, the date of her back injury, she signed an agreement to
release the Napolillis from any liability for that injury, too.
          In October 1992 Nickels and the Napolillis ended the
cabin-for-chores arrangement.  Nickels continued to live in the
cabin, paying $400 per month to the Napolillis for rent.  In May
1994 the Napolillis ended the rental relationship and filed an
eviction action against Nickels.
     B.   Proceedings in the Trial Court
          Nickels filed suit against the Napolillis on September
27, 1994.  The complaint included tort claims for hindering
appropriate medical treatment and misrepresenting Nickels's rights
to workers' compensation, and breach of contract claims for failing
to provide workers' compensation benefits and medical care. 
Nickels sought compensatory and punitive damages.
          The Napolillis sought summary judgment on the 1990 arm
injury, claiming that the two-year tort statute of limitations and
the release signed by Nickels barred the claim.  Nickels responded
that a six-year statute of limitations should apply because the
action arose out of a breach of the employment contract's implied
clause requiring workers' compensation coverage.  Nickels also
asserted that the factual circumstances surrounding her signing of
the release made it legally deficient.  Superior Court Judge Niesje
J. Steinkruger denied summary judgment on these issues, finding
genuine issues of material fact as to whether Nickels's claim was
barred by either the statute of limitations or the release.
          The superior court held a bench trial to determine
whether Nickels was an employee for the purposes of the Alaska
Workers' Compensation Act.  The superior court recognized that
evidence pointed in both directions, but ultimately found that
Nickels was an employee under the Act.  The superior court also
determined in pre-trial proceedings that both of Nickels's injuries
arose out of, and in the course of, her employment.
          A week before the scheduled jury trial, counsel for
Nickels submitted revised jury instructions that shifted the focus
of the case from negligence to breach of contract.  In light of
this change in position, the trial judge held a status conference. 
At that on-record conference, Nickels's counsel expressly stated
that Nickels was abandoning her claims for negligence and
misrepresentation.  In response, the Napolillis moved to dismiss
the case or, alternatively, to refer the case to the Alaska
Workers' Compensation Board.  They argued that no valid claims
remained since Nickels had abandoned her negligence and
misrepresentation claims.  Judge Steinkruger granted the
Napolillis' motion, dismissing Nickels's claims before the superior
court and granting ninety days for Nickels to file her claim before
the Alaska Workers' Compensation Board.  Nickels appeals this
ruling.  The Napolillis cross-appeal the trial court's ruling that
Nickels was an employee and that her injuries were work related,
and that the statute of limitations does not bar Nickels's claim.
     A.   Standard of Review
          Many of the issues before us are matters of statutory
interpretation.  The interpretation of a statute is a question of
law; therefore, we use our independent judgment. [Fn. 1]  "Our duty
is to adopt the rule of law that is most persuasive in light of
precedent, reason, and policy." [Fn. 2]
          Whether Nickels is appropriately considered an "employee"
for the purposes of the workers' compensation statute is a mixed
question of law and fact.  We review the trial court's factual
findings using the clearly erroneous standard, [Fn. 3] and we apply
de novo review to the legal determination of whether these facts
amount to employment under the statute. [Fn. 4]
     B.   The Trial Court Did Not Err in Dismissing Nickels's
Breach of Contract and Bad Faith Claims.

          1.   Alaska Workers' Compensation Act provisions
               establish an employee's remedies for work-related

          The Alaska Workers' Compensation Act [Fn. 5] creates a
system through which employers compensate employees injured on the
job, irrespective of fault for the injury. [Fn. 6]  It is a "mutual
arrangement of reciprocal rights between employer and employee,
whereby both parties give up and gain certain advantages." [Fn. 7] 
In exchange for guaranteed recovery for post-injury wage loss, [Fn.
8] medical expenses, [Fn. 9] and vocational rehabilitation services
covered by the statute, [Fn. 10] employees give up the opportunity
to seek the full scope of tort or negligence damages. [Fn. 11]
          The Alaska Workers' Compensation Act establishes that
"[t]he liability of an employer prescribed in AS 23.30.045 is
exclusive and in place of all other liability of the employer."
[Fn. 12]  The exclusivity of workers' compensation act remedies was
a "keystone" of the development of workers' compensation systems
such as Alaska's. [Fn. 13]  Employers and employees both give up
certain rights for the greater good of widespread, no-fault
insurance coverage for on-the-job injuries. [Fn. 14]
          Alaska Statute 23.30.045(a) provides that an employer "is
liable for and shall secure the payment to employees of the
compensation payable under [the Act]."  When an employer fails to
comply with the Alaska Workers' Compensation Act's requirement to
secure payment of compensation to its injured employees, either
through procurement of a workers' compensation insurance policy or
through self-insurance, the statute offers an injured employee two
options for seeking recovery.  The Act offers employees whose
employers have not provided workers' compensation benefits the
choice of (1) claiming compensation through the procedures of the
workers' compensation statute, [Fn. 15] or (2) "maintain[ing] an
action against the employer at law . . . for damages on account of
the injury or death." [Fn. 16]  
          If the injured employee brings a claim before the Alaska
Workers' Compensation Board, [Fn. 17] that employee has available
the same benefits that would have been provided if the employer had
complied with the statute by having workers' compensation
insurance. [Fn. 18]
          If, on the other hand, an injured employee chooses to
bring a lawsuit against the employer under AS 23.30.055, the
workers' compensation statute enhances the opportunity for recovery
and removes many of the limitations on compensation ordinarily
imposed.  First, in an action at law against the non-compliant
employer, the statute shifts the presumption of negligence.  "[I]t
is presumed that the injury to the employee was the first result
growing out of the negligence of the employer and that the
employer's negligence was the proximate cause of the injury; the
burden of proof rests upon the employer to rebut this presumption
of negligence." [Fn. 19]  Additionally, in a lawsuit under this
provision, the employer does not enjoy the limitations on liability
otherwise imposed by the workers' compensation statutory scheme.
[Fn. 20]  Finally, an employer may not raise defenses of
contributory or comparative negligence, negligence of fellow
employees, or assumption of risk. [Fn. 21]  Thus, the workers'
compensation statute, which carefully balances the rights and
responsibilities of employees and employers, [Fn. 22] tips the
scales in favor of an injured employee when the employer does not
provide workers' compensation benefits and the employee chooses to
sue for damages for the injuries. [Fn. 23]  In this way, the Act
allows the employee who has suffered injury resulting from the
employer's negligence to recover damages above and beyond the
compensation that would have been available had the employer
provided workers' compensation insurance.
          The workers' compensation statute specifies the two
remedies for employees whose employers have failed to provide
workers' compensation benefits. [Fn. 24] We have recognized that
"[i]n substituting certainty of compensation for the hazards of
litigation of work-related injuries, it is too clear to require
discussion that the [A]ct was intended to comprehend and govern all
the interacting relations of employee, fellow employee and
employer." [Fn. 25] Therefore, the remedies offered by the workers'
compensation statute supercede any common law remedies outside of
the statutory scheme. [Fn. 26]
          2.   A worker's lawsuit under AS 23.30.055 must be a
tort action for the underlying injury.
          When an employer breaches the duty to provide workers'
compensation benefits, the Alaska Workers' Compensation Act permits
the worker to file a lawsuit against the employer for "damages on
account of the injury or death." [Fn. 27]  The Act's language
reflects an intent to provide a remedy for a worker's personal
injuries.  It specifies the following relief when an employer has
failed to provide compensation:
          [I]f an employer fails to secure payment of
compensation as required by this chapter, an injured employee . .
. may elect to claim compensation under this chapter, or to
maintain an action against the employer at law or in admiralty for
damages on account of the injury or death.  In that action the
defendant may not plead as a defense that the injury was caused by
the negligence of a fellow servant, or that the employee assumed
the risk of the employment, or that the injury was due to the
contributory negligence of the employee.[ [Fn. 28]]
          In her complaint, Nickels initially claimed that the
Napolillis "actively and intentionally misrepresented . . . her
right to receive workers' compensation benefits, including medical
care."  Yet, on the eve of trial, Nickels abandoned all of her tort
claims.  Instead, she relied solely on contract theories for her
claims against the Napolillis, alleging that the Napolillis
breached their employment contract when they failed to obtain
workers' compensation insurance and failed to pay for medical care
and lost wages after her injuries. [Fn. 29]  Nickels's claim
presumes that the lack of workers' compensation insurance, in
itself, is an "injury" of the sort that can be compensated by a
lawsuit.  We disagree.
          The statute defines "injury" as "accidental injury or
death arising out of and in the course of employment, and an
occupational disease or infection which arises naturally out of the
employment or which naturally or unavoidably results from an
accidental injury." [Fn. 30]  When a worker chooses the remedy of
suing an employer who has failed to provide workers' compensation
benefits, the purpose is to rectify the same harm that the workers'
compensation statute as a whole remedies -- injury or death
resulting from an on-the-job accident.  A tort action is the common
law cause of action that can address this harm. 
          Moreover, other provisions of the Act support the
interpretation that a common law action under AS 23.30.055 is
limited to tort claims for the underlying injury.   Alaska Statute
23.30.080 clarifies that if an employer fails to buy insurance it
"may not escape liability for personal injury or death sustained by
an employee when the injury sustained arises out of and in the
usual course of employment because [of negligence of co-employees,
assumption of risk, or contributory or comparative negligence]."
[Fn. 31]  Alaska Statute 23.30.020 also explicitly refers to
"personal injuries" as the injuries for which the Alaska Workers'
Compensation Act provides a remedy.  This section states that
"every contract of hire shall be construed as an agreement on the
part of the employer to pay and on the part of the employee to
accept compensation in the manner provided in this chapter for all
personal injuries sustained." [Fn. 32]  Thus, when an employer
breaches its duty to provide workers' compensation benefits, the
workers' compensation law only authorizes the employee to recover
for personal injuries through a tort action.
          And when the employee chooses to file a lawsuit, as
opposed to pursuing an administrative action, that lawsuit provides
a remedy for the same "accidental injury . . . arising out of and
in the course of employment" [Fn. 33] as would be compensated
through an administrative action.  The lawsuit then cannot, as
Nickels claims, compensate for the "injury" of the breached
obligation to provide insurance or comparable benefits.  Rather,
the cause of action arises from the underlying accident or personal
injury and thus requires a tort claim.
          3.   Nickels's breach of contract and breach of good
faith and fair dealing claims are neither authorized nor necessary
under the workers' compensation statute.
          The remedies established by the Alaska Workers'
Compensation Act are the only available remedies for an employer's
failure to provide workers' compensation benefits.  Moreover, there
would be no contractual breach if there were no statutory
requirement to provide workers' compensation. Professor Larson
states that "the exclusiveness principle results in barring actions
for covered injuries even though the plaintiff casts his actions in
the form of a breach of some kind of contract." [Fn. 34]  The
employer's failure to provide workers' compensation insurance does
not create a separate contract cause of action, even though the
obligation to provide workers' compensation insurance is
incorporated into every employment contract. [Fn. 35]  Because the
Napolillis' obligation to provide workers' compensation insurance
is only incorporated into the contract between Nickels and the
Napolillis by virtue of the workers' compensation statute, the
remedies offered by the workers' compensation statute are
          The remedy for a successful breach of contract action
puts the non-breaching party in the position that it would have
been in had the breach not occurred. "The purpose of awarding
damages for a breach of contract is to put the injured party in as
good a position as that party would have been had the contract been
fully performed." [Fn. 36]  Thus, the contract remedy for a breach
of the obligation to provide workers' compensation insurance would
place the worker in the same position as if the employer had
provided the required insurance or benefits.  The worker would be
entitled to compensation for lost wages [Fn. 37] and medical
expenses, [Fn. 38] as well as vocational rehabilitation benefits.
[Fn. 39]
          An Alaska Workers' Compensation Board proceeding results
in determination of compensation owed to the employee according to 
the Act. [Fn. 40]  As this is the amount the employee would have
received if workers' compensation insurance or benefits had been
provided by the employer, it would also represent the complete
contract remedy for an employer's failure to provide workers'
compensation insurance or benefits. [Fn. 41]  Thus, an
administrative action achieves the same result as would a breach of
contract action.  The administrative remedy, however, is only one
of the two options available under AS 23.30.055: an employee may
also sue the employer for damages resulting from the underlying
injury sustained. [Fn. 42]
          Nickels's further claim that the Napolillis breached the
implied covenant of good faith and fair dealing fails for the same
reasons as her contract claim.  Nickels proposed a jury instruction
setting out this claim:
               Under state law, Ruth Nickels had the
right to obtain reasonable and necessary medical treatment at her
employer's expense for any on-the-job injuries, the right to select
a treating doctor without interference from her employer, and the
right to receive compensation for any time she was unable to work
due to her injuries.

               Intentionally violating state law, or
intentionally attempting to deprive an employee of rights
guaranteed by state law would be a violation of the obligation of
good faith and fair dealing.

This cause of action presents essentially the same uncontested
allegation underlying the breach of contract claims: the Napolillis
failed to provide workers' compensation benefits or insurance. 
Because the obligation to provide benefits is imposed by the
workers' compensation statute, it can be remedied only in a manner
prescribed by that statute. That the Napolillis arguably
intentionally violated state law or tried to deprive Nickels of the
benefits to which she was entitled does not change this outcome. 
          In summary, the trial court did not err in dismissing
Nickels's claims for breach of contract and breach of the implied
covenant of good faith and fair dealing.  Although Nickels filed a
suit alleging tort causes of action, she abandoned all tort claims
before trial.  She therefore abandoned the opportunity to take
advantage of the statutory presumption of negligence and abrogation
of many defenses to negligence.  While Nickels's complaint also
included contract-based causes of action, these claims cannot
sustain a separate lawsuit against Nickels's employer.  As the
trial court concluded, Nickels's only remaining legal option is to
have her claims heard before the Alaska Workers' Compensation
Board.  The trial court granted Nickels a period of ninety days to
file her claim before the Alaska Workers' Compensation Board; that
period has been tolled pending resolution of this appeal. [Fn. 43]
     C.   The Trial Court Did Not Err in Finding that Nickels Is an
Employee Covered Under the Alaska Workers' Compensation Act.

          On cross-appeal, the Napolillis argue that the Alaska
Workers' Compensation Act's provisions do not apply because Nickels
was not an "employee" for the statute's purposes.  The superior
court held a bench trial on the threshold issue of whether the
workers' compensation statute applied to the facts of this case,
and determined that Nickels was an employee under Alaska's workers'
compensation law.
          The Alaska Workers' Compensation Act covers "disability
or death of an employee." [Fn. 44] The Act defines "employee" as
"an employee employed by an employer." [Fn. 45]  An "employer" is
"a person employing one or more persons in connection with a
business or industry coming within the scope of this chapter and
carried on in this state." [Fn. 46]  To determine whether the
relationship between Nickels and the Napolillis falls within the
scope of the Act, we must determine whether Nickels was an
employee, and then determine whether the work she performed was
within the scope of the Act. 
          1.   Nickels and the Napolillis had an employee-employer

          An express or implied contract or agreement of employment
must exist for there to be an employee-employer relationship. [Fn.
47]  The trial court found that Nickels and the Napolillis entered
into an agreement by which Nickels provided at least eighty hours
of work per month for the Napolillis.  In exchange, the Napolillis
compensated Nickels by providing a log home for her to live in and
a place for her to keep her animals. [Fn. 48]  The Napolillis
characterize this agreement as a "rental agreement," while Nickels
characterizes it as a employment relationship.
          Substantial evidence supports the trial court's finding
that the agreement between Nickels and the Napolillis constitutes
an employment relationship.  The application filled out by Nickels
and Johnson refers to the position as a "job" and includes
questions about relevant job experience.  The agreement between
Nickels and the Napolillis specifies the number of hours of labor
required per month and a compensation rate for hours worked beyond
that amount.  The agreement also lists sixteen tasks for Nickels to
perform, and reserves the Napolillis' right to terminate the
agreement "if labor is not performed as indicated . . . or if said
labor is not performed in a conscientious manner to [the]
Napolilli[s'] expectations."  That the document also contains terms
commonly found in a residential rental agreement [Fn. 49] does not
diminish the legal significance of the agreement as an employment
          Although the trial court found that Nickels and the
Napolillis had an employment contract defining the terms of their
relationship, the existence of a contract does not end the inquiry.
The legal determination of whether an employee-employer
relationship exists relies, in part, on consideration of the
character of the "employee's" work and the relationship of work to
the "employer's" business. [Fn. 50]  We have explained elements of
this "relative nature of the work" test in Searfus v. Northern Gas
          In evaluating the character of the claimant's
work, the trier of fact is to consider the degree of skill
involved, the degree to which it is a separate calling or business,
and the extent to which it can be expected to carry its own
accident burden.  Concerning the relationship of the claimant's
work to the purported employer's business, the trier of fact is to
consider how much it is a regular part of the employer's regular
work, whether it is continuous or intermittent, and whether the
duration is sufficient to amount to the hiring of continuing
services as distinguished from contracting for the completion of a
particular job.[ [Fn. 51]]

          The trial court made the following findings relevant to
whether Nickels was the Napolillis' employee:
          (a)  Noel and Nancy Napolilli exercised
control and direction over the manner and means that [Nickels]
performed work by their verbal and written instructions, (b) 
[Nickels] could have terminated her work status, (c) there was
extensive supervision by Noel Napolilli, (d) the Napolillis[] 
provided tools and equipment of substantial value for [R]uth
Nickels to accomplish farm work, (e) the work "payment" was based
on 80 hours per month, with records documenting work time, and (f)
the contract was initially written and subsequently oral.

Ample evidence supports these factual findings, and they are not
clearly erroneous.  
          The Napolillis suggest that the relationship of Nickels's
work to the Napolillis' business weighs in favor of not considering
Nickels an employee.  They urge us to consider that because the
farm was a lifestyle choice and not a primary income source, it
ought not bear the costs of injuries incurred in furtherance of the
Napolillis' and Nickels's farming activities.  We have recognized
Professor Larson's distinction between consumptive activities which
should not bear the burden of workers' compensation insurance, and
productive business activities, which should. [Fn. 52]  A homeowner
who hires someone to perform an odd job for his own benefit is not
appropriately considered an employer under the workers'
compensation statute. [Fn. 53]  A business, unlike a homeowner, can
pass the cost of workers' compensation insurance on to the
consumers of the business's service or product.  The superior court
found that "[t]he 'business' of Isabella Creek Farm was not the
primary source of income for the Napolillis[;] however, the work
that Ruth Nickels performed was a regular part of the regular work
of Isabella Creek Farm business."  Because Nickels's work for
Isabella Creek Farm and the Napolillis furthered the business, it
is therefore within the scope of the workers' compensation system.
          2.   The work performed by Nickels is not otherwise
exempt from the workers' compensation statute.

          The Alaska Workers' Compensation Act exempts several
categories of workers from its scope. [Fn. 54]  The workers'
compensation statute does not cover "harvest help and similar part-
time or transient help." [Fn. 55]  The evidence in the record does
not support the Napolillis' assertion that Nickels was harvest
help.  Nickels worked year-round performing a variety of tasks and
was not hired seasonally to assist with specific, discrete tasks. 
While many states exempt farm workers from workers' compensation
statutes, [Fn. 56] the Alaska legislature has not chosen to do so.
[Fn. 57]  Therefore, the Napolillis' attempt to equate all farm
labor with "harvest help" goes against legislative intent and is
not supportable under the law.  Similarly, evidence of Nickels's
regular and continuous work for the Napolillis indicates that she
was not part-time help exempt from the workers' compensation laws.
          Finally, the Napolillis suggest that homesteaders with
small family farms are exempted from the Alaska Workers'
Compensation Act under AS 23.30.230(b).  That section states:  "The
exclusion of certain persons under (a) of this section may not be
construed to require inclusion of other persons as employees for
purposes of compensation under this chapter." [Fn. 58]  The
Napolillis cite no persuasive authority for their argument that
this section expands the specifically delineated exceptions.  As
Nickels points out, "Alaska's statutory workers' compensation
scheme unambiguously appoints the legislature, not the courts, with
the duty of defining exempt categories of employees," and the
legislature did not exempt farm workers such as Nickels.  As
Nickels's job is not specifically exempted from the workers'
compensation statute, the determination of Nickels's status as an
employee based on the "relative nature of the work" test controls,
and Nickels was appropriately considered an employee covered under
the Act.
     D.   The Trial Court Properly Determined that the Napolillis'
Motion for Reconsideration of Summary Judgment in Nickels's Favor
Was Moot.

          After the superior court conducted a bench trial
regarding whether Nickels was the Napolillis' employee for workers'
compensation purposes, it ruled that both Nickels's arm injury and
back injury occurred within the course and scope of her employment
with the Napolillis and granted Nickels's motion for summary
judgment on liability.  It is not disputed that the arm injury
occurred when Nickels was performing a farm chore.  Judge
Steinkruger determined that because Nickels resided at the work
site as a part of her employment and because the back injury
occurred on the work site, that injury also "ar[ose] out of and in
the course of employment." [Fn. 59]
          The Napolillis sought reconsideration of this summary
judgment ruling, arguing that the trial court overlooked the fact
that the employment relationship had ended before the back injury
occurred.  After the trial court dismissed the case and referred it
to the Alaska Workers' Compensation Board, Judge Steinkruger ruled
that the reconsideration motion was moot. [Fn. 60]
          Once the trial court determined that Nickels's
abandonment of her tort claims left her with no tenable claim at
law -- so that Nickels's only remaining option was to pursue her
workers' compensation claims -- the trial court properly deferred
deciding any remaining matters relating to the merits of Nickels's
administrative claims.  Thus, to the extent that any issues
relating to the merits of Nickels's workers' compensation claims
were not finally resolved by the trial judge in her determination
of whether Nickels had a tenable action at law, they must be left
to the Alaska Workers' Compensation Board for resolution.  The
trial court therefore properly denied on mootness grounds the
Napolillis' motion for reconsideration of the summary judgment
ruling on the issue of work-relatedness of Nickels's back injury.
          Because Nickels's breach of contract claims rely upon
duties created by the Alaska Workers' Compensation Act, and because
the Act provides an adequate remedy for that breach and does not
permit a separate suit for breach of contract, we AFFIRM the
superior court's dismissal of those claims.  We also AFFIRM the
superior court's determination that Nickels was an employee of the
Napolillis for the purposes of the Alaska Workers' Compensation Act
and therefore REMAND to the trial court to allow Nickels to pursue
her claims before the Workers' Compensation Board.


Footnote 1:

     See Cook v. Botelho, 921 P.2d 1126, 1129 (Alaska 1996).

Footnote 2:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

Footnote 3:

     See Kilmer v. Dillingham City Sch. Dist., 932 P.2d 757, 763-64
(Alaska 1997).  We will reverse only if we have a "definite and
firm conviction that a mistake has been made."  Id. at 764.

Footnote 4:

     See Moody-Herrera v. State, Dep't of Natural Resources, 967
P.2d 79, 82 (Alaska 1998); see also Dunlap v. Bavarian Village
Condominium Ass'n, 780 P.2d 1012, 1015 n.9 (Alaska 1989) (standard
of review for mixed findings of fact and law).

Footnote 5:

     AS 23.30.005-.400.

Footnote 6:

     See AS 23.30.045(a)-.045(b).

Footnote 7:

     Whitney-Fidalgo Seafoods, Inc. v. Beaukers, 554 P.2d 250, 253
(Alaska 1976).

Footnote 8:

     See AS 23.30.175.

Footnote 9:

     See AS 23.30.095.

Footnote 10:

     See AS 23.30.041.

Footnote 11:

     See Wright v. Action Vending Co., 544 P.2d 82, 84-85 (Alaska
1975) (quoting Smither & Co. v. Coles, 242 F.2d 220, 222 (D.C. Cir.

Footnote 12:

     AS 23.30.055.

Footnote 13:

     See Wright, 544 P.2d at 84-85.

Footnote 14:

     See id.

Footnote 15:

     See AS 23.30.110.

Footnote 16:

     AS 23.30.055.  

Footnote 17:

     See AS 23.30.110.

Footnote 18:

     See AS 23.30.030(2).

Footnote 19:

     AS 23.30.080(b).

Footnote 20:

     See AS 23.30.080(c) ("The limits of liability do not apply
when an action is brought under this section.").

Footnote 21:

     See AS 23.30.055, .080(a); Grothe v. Olafson, 659 P.2d 602,
608-09 (Alaska 1983).

Footnote 22:

     Because the legislature adopted the exclusivity provision of
the Alaska Workers' Compensation Act from the federal
Longshoremen's and Harbor Workers' Compensation Act, Wright v.
Action Vending Co., 544 P.2d 82, 84 (Alaska 1975), we have looked
to cases interpreting that Act for legislative history of the
exclusivity provision:

          The history of the development of statutes,
such as this, creating a compensable right independent of the
employer's negligence and notwithstanding an employee's
contributory negligence, recalls that the keystone was the
exclusiveness of the remedy.  This concept emerged from a balancing
of the sacrifices and gains of both employees and employers, in
which the former relinquished whatever rights they had at common
law in exchange for a sure recovery under the compensation
statutes, while the employers on their part, in accepting a
definite and exclusive liability, assumed an added cost of
operation which in time could be actuarily measured and accurately
predicted; incident to this both parties realized a saving in the
form of reduced hazards and costs of litigation.

Id. at 84-85 (quoting Smither & Co. v. Coles, 242 F.2d 220, 222
(D.C. Cir. 1957)).

Footnote 23:

     See AS 23.30.055.  

Footnote 24:

     See id.

Footnote 25:

     Gordon v. Burgess Constr. Co., 425 P.2d 602, 605 (Alaska 1967)
(quoting Frick v. Horton, 21 A.D.2d 212 (N.Y. App. 1964), aff'd,
207 N.E.2d 618 (N.Y. 1965)).    

Footnote 26:

     See Gordon, 425 P.2d at 605 (holding that "the remedies
provided by a workmen's compensation act are intended to be in lieu
of all rights and remedies as to a particular injury whether at
common law or otherwise."); see also 3 Norman J. Singer, Sutherland
Statutory Construction sec. 61.01 (5th ed. 1992) ("If a change is
be made in the common law, the legislative purpose to do so must be
clearly and plainly expressed.").

Footnote 27:

     AS 23.30.055.

Footnote 28:

     Id. (emphasis added).

Footnote 29:

     Nickels bases her breach of contract claim on her agreement
with the Napolillis, and AS 23.30.020, which inserts the provisions
of the workers' compensation statute into every employment
contract.  AS 23.30.020 states:

          This chapter constitutes part of every
contract of hire, express or implied, and every contract of hire
shall be construed as an agreement on the part of the employer to
pay and on the part of the employee to accept compensation in the
manner provided in this chapter for all personal injuries

Footnote 30:

     AS 23.30.395.

Footnote 31:

     AS 23.30.080(a) (emphasis added); see also Grothe v. Olafson,
659 P.2d 602, 608-09 (Alaska 1983) (holding that under AS 23.30.055
and AS 23.30.080 an employer may not assert defense of comparative

Footnote 32:

     AS 23.30.020 (emphasis added).

Footnote 33:

     AS 23.30.395(17) (defining "injury").

Footnote 34:

     6 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation Law sec. 65.38 (1999).

Footnote 35:

     See AS 23.30.020.

Footnote 36:

     Guard v. P & R Enters., 631 P.2d 1068, 1071 (Alaska 1981); see
also Restatement (Second) of Contracts sec. 344(a) (1979).   

Footnote 37:

     See AS 23.30.175.

Footnote 38:

     See AS 23.30.095.

Footnote 39:

     See AS 23.30.041.

Footnote 40:

     See AS 23.30.175-.225.

Footnote 41:

     Nickels suggests reasons why the employee may prefer an action
at law to an action before the Board.  For example, a lawsuit
concludes with a judgment, whereas Nickels suggests that an action
before the Workers' Compensation Board may result in years of
entanglement with the administrative bureaucracy.  Additionally,
she contends that a lawsuit offers the possibility of punitive
damages.  Where, as here, tort and negligence causes of action have
been waived, such a preference does not override the statute's
explicit remedies for either a suit at law for tort claims or a
proceeding before the Alaska Workers' Compensation Board.

Footnote 42:

     See AS 23.30.080; see also supra notes 19-23 and accompanying

Footnote 43:

     The Napolillis assert that Nickels may not bring a tort claim
for injury to her arm because the two-year limitations period had
elapsed before she filed the claim.  Since we determine that
Nickels may not proceed with an action at law, the statute of
limitations issue is moot.  The superior court's order dismissing
Nickels's claims before that court acknowledged that Nickels may
bring a claim for workers' compensation benefits before the Alaska
Workers' Compensation Board.  The trial court found that because
"plaintiff does not have a contract action option against her
uninsured employer under AS 23.30.055[,] [t]he only remedy left
available to plaintiff is her claim for workers' compensation
benefits before the Board."  The superior court dismissed the case
before it and granted Nickels 90 days to file her claim with the
Board.  Thus, we need not decide whether Nickels's tort claims
would have been barred by the statute of limitations.

Footnote 44:

     AS 23.30.010.

Footnote 45:

     AS 23.30.395(12).

Footnote 46:

     AS 23.30.395(13).

Footnote 47:

     See Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska
1989); City of Seward v. Wisdom, 413 P.2d 931, 935 (Alaska 1966).

Footnote 48:

     While we have not addressed the issue directly, many
jurisdictions hold that an employment relationship exists where a
worker receives board or housing in exchange for her labor.  See 3
Larson, supra note 34, sec. 65.03[1].

Footnote 49:

     The agreement includes terms that relate to damage deposit,
utilities, overnight guests, subleasing, use of the property, and
trash removal.  Moreover, the agreement characterizes the parties
as "owners" and "occupants."

Footnote 50:

     See Ostrem v. Alaska Workmen's Comp. Bd., 511 P.2d 1061, 1063
(Alaska 1973); Searfus v. Northern Gas Co., 472 P.2d 966, 969
(Alaska 1970).  

Footnote 51:

     472 P.2d at 969. 

Footnote 52:

     See Kroll v. Reeser, 655 P.2d 753, 757 (Alaska 1982) ("the
policy question is whether Kroll's construction activity, either by
itself or as an element of his rental activities, was a
profit-making enterprise which ought to bear the costs of injuries
incurred in the business, or was the construction activity simply
a cost-cutting shortcut in what was basically a consumptive and not
a productive rol[e]") (emphasis in original).

Footnote 53:

     See 4 Larson, supra note 34, sec. 50.21.

Footnote 54:

     See AS 23.30.230(a) (exempting from coverage, for example,
part-time baby-sitters, cleaning people, harvest help and similar
part-time or transient help, sports officials officiating at non-
professional events, entertainers employed on a contractual basis,
commercial fishers, certain taxicab drivers, and some public
assistance recipients engaged in certain work activities).

Footnote 55:

     AS 23.30.230(a)(3).  "Part-time help" is defined in the
Administrative Code as "a person who on an intermittent, irregular,
non-continuous basis performs work which is either not an integral
part of the regular business of the beneficiary of the work or
which is not in the regular business, profession or occupation of
the worker."  8 Alaska Administrative Code (AAC) 45.900(c)(1)
(1988) (establishing regulatory guidelines for the Alaska Workers'
Compensation Board).

Footnote 56:

     See 4 Larson, supra note 34, sec. 53.10.

Footnote 57:

     See generally Gordon v. Burgess Constr. Co., 425 P.2d 602,
603-04 (Alaska 1967) (detailing legislative history of workers'
compensation statutes in Alaska).

Footnote 58:

     AS 23.30.230(b).

Footnote 59:

     The superior court applied the "remote-site" doctrine to make
its ruling.  See generally Doyon Universal Servs. v. Allen, 999
P.2d 764, 768-69 (Alaska 2000) (discussing remote-site doctrine). 

Footnote 60:

     A claim is moot "if the party bringing the action would not be
entitled to any relief even if they prevail[ed]."  Maynard v. State
Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n.2 (Alaska 1995).