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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State Dept. of Fish & Game v Kacyon et al. (10/05/2001) sp-5484

State Dept. of Fish & Game v Kacyon et al. (10/05/2001) sp-5484

     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.


OF FISH AND GAME,             )    Supreme Court No. S-9433
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-10518 CI
JEREMIAH KACYON, beneficiary  )    O P I N I O N
of RANDALL KACYON (Deceased), )
and the ALASKA WORKERS'       )
             Appellees.       )    [No. 5484 - October 5, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                  Sigurd Murphy, Judge pro tem.

          Appearances:  Kristin S. Knudsen, Assistant
Attorney General, Anchorage, Bruce M. Botelho, Attorney General,
Juneau, for Appellant.  John S. Hedland, Amy L. Vaudreuil, Hedland,
Brennan, Heideman & Cooke, Anchorage, for Appellees.

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

          MATTHEWS, Justice.

          Alaska Statute 23.30.015(g) provides that when an
employee's representative recovers damages in a suit against a
third party, the representative must reimburse the employer for
workers' compensation benefits the employer has paid. [Fn. 1]  The
"excess" recovery may be retained by the personal representative
but it must be credited against the employer's obligation to make
compensation payments in the future.  But the employer must pay its
pro rata share of the representative's costs and attorney's fees as
measured by both the reimbursement for past payments that the
employer receives and the credit for future payments that the
employer is relieved from paying. [Fn. 2]  Subsection (h) of .015
provides that if a personal representative compromises without the
employer's consent a third-party claim for an amount which is less
than past and future compensation payments, future compensation
benefits are forfeited.  This case involves the interplay between
these subsections which is created when a settlement is made for an
amount greater than past and future compensation payments but an
allocation is made to one beneficiary in an amount less than the
total benefits the beneficiary would receive from the employer. 
          In the present case a personal representative settled a
third-party action for a sum in excess of possible past and future
compensation benefits, took the position that the employer was
entitled to reimbursement for compensation payments paid and a 
discharge of any future obligation to pay compensation, less pro
rata costs and attorney's fees and, with court approval but without
the consent of the employer, allocated a settlement share to a
minor beneficiary of the deceased that was less than the future
compensation due from the employer to the beneficiary.  The
employer sought to invoke the forfeiture provisions of subsection
(h).  The Workers' Compensation Board held that subsection (h) did
not apply because the allocation was court approved and thus held
the employer responsible to pay full benefits once the credited
amount was exhausted.  We hold that this was error because the fact
that a settlement allocation is court approved does not mean that
it is not the result of a "compromise with a third person" as that
term is used in subsection (h).  But we also hold that under the
facts and circumstances of this case the "compromise with a third
person" that is governed by subsection (h) is the total settlement
and that this discharged the employer's obligation to all
beneficiaries to pay compensation, except for pro rata costs and
attorney's fees.  
          Randall Kacyon, a wildlife biologist employed by the
State of Alaska, died in a plane crash in the course of a moose
survey in November 1996.  He was survived by his wife, Georgina,
and his fifteen-year old son, Jeremiah. 
          The State immediately began to pay workers' compensation
death benefits of $700 per week, divided equally between the two
beneficiaries.  The State was responsible for paying Jeremiah his
share of the death benefit until he turned nineteen, while he
attended high school after his nineteenth birthday, and during his
first four years of vocational school, trade school, or college.
[Fn. 3]  The State estimated its maximum total liability to
Jeremiah to be $137,900.  Georgina's benefits were capped at ten
years. [Fn. 4]  At $350 per week, her maximum benefits would be
$182,000.  But if Jeremiah ceased to be eligible for benefits, his
benefits would be paid to Georgina. [Fn. 5]  Thus the maximum
benefits payable to Georgina and Jeremiah collectively would be ten
years of compensation at $700 per week or $364,000.
          Georgina, as the personal representative of Randall,
filed a wrongful death action against Hageland Aviation, the
operator of the plane in which Randall died.  Georgina did not
notify the State or the Workers' Compensation Board of the
commencement of the action within thirty days, as required by law.
[Fn. 6]  Georgina eventually settled the wrongful death action with
Hageland for $1,200,000.  The settlement was agreed to in principle
at a mediation conference on December 15, 1997.  The settlement was
"global" in the sense that it was not allocated between Georgina's
and Jeremiah's claims as beneficiaries. 
          On December 16, 1997, Kacyon's counsel sent copies of the
wrongful death action complaint to the State.  Kacyon's counsel
also advised the State "that we are considering a settlement offer"
and inquired as to "the State's position regarding settlement of
any workers' compensation lien which may apply."  On December 19
Kacyon's counsel wrote the State advising it that the settlement
would be sufficient to repay workers' compensation benefits
received from the State "and those which would otherwise be
received in the future . . . ."  Noting that the costs and
attorney's fees for recovering the settlement would be thirty
percent of the amount, counsel offered to reimburse the State for
seventy percent of the compensation payments already made (that is,
to pay $28,700 of the $41,000 in payments already made) withholding
the balance as pro rata costs and fees.  As to future benefits,
counsel suggested that all such benefits be reduced by seventy
percent so that the State would only be paying attorney's fees and
costs on future benefits that the State was discharged from paying
as a result of the settlement. 
          On December 23, 1997, the State rejected this offer, at
least provisionally, "without knowing the full extent of the
recovery you anticipate."  On January 2, 1998, Kacyon's counsel
wrote the State, supplying the information the State had requested
concerning the basis for its fees.  As to the amount of the
settlement, counsel wrote:  
          Although the terms are confidential, the
settlement involves more than a million dollars, which is clearly
sufficient to relieve the State of any future obligation to pay
benefits, subject to adjustment for pro rata share of litigation
expenses.  In other words, under any of the scenarios for  possible
future payouts, the recovery is greater than those future benefits. 

          Also on January 2, 1998, Georgina Kacyon moved in the
superior court for "approval of settlement for the benefit of a
minor" pursuant to Civil Rule 90.2, seeking approval of the
settlement insofar as it affected Jeremiah.  No notice of this
motion or subsequent proceedings concerning it was given to the
State.  The motion explained that the settlement amount was
$1,200,000, that attorney's fees would be $353,958, that costs in
addition to attorney's fees were approximately $6,000, that
Georgina and Jeremiah had been receiving workers' compensation
benefits which would have to be repaid, and that the sum for
repayment to the State after adjustment for litigation costs and
fees would be approximately $30,000.  These deductions would leave
a net recovery of some $810,000.  The motion proposed an allocation
of ninety-five percent of the this sum to Georgina and five percent
to Jeremiah based on a "years of dependency" formula like that
approved by this court in Horsford v. Estate of Horsford. [Fn. 7] 
On January 7, 1998, the superior court granted the motion, thus
approving both the settlement and the allocation. 
          The order approving the settlement was sent by Kacyons'
counsel to the State, which took the position that as to Jeremiah
the settlement was "for an amount less than the amount of our
liability without our written permission" and therefore that under
AS 23.30.015(h) the State was not liable for anything further to
          The State thereupon filed a controversion notice with the
Workers' Compensation Board.  Georgina and Jeremiah countered by
filing an application for adjustment of claim with the Board to
determine whether "the employer's obligation to pay a prorated
share of litigation costs and expenses in a third-party action
should be calculated on the basis of the employer's total potential
liability or only on benefits actually paid by the employer prior
to settlement of the third-party action." [Fn. 8] 
          The Board held a hearing.  The State's position was that
it no longer had to pay any future benefits to Jeremiah because
such benefits were forfeited under AS 23.30.015(h) because the
compromise was not consented to by the State and it was for an
amount less than the compensation to which Jeremiah would be
entitled under the act.  As to Georgina, the State's position was
that it had no obligation to reimburse her for a pro rata share of
her litigation expenses attributable to future workers' compensa-

tion benefits which the State saved by reason of the Hageland
          The Kacyons argued that the forfeiture provisions of AS
23.30.015(h) did not apply because the global settlement was
greater than past and future compensation payments due collectively
to Jeremiah and Georgina, and the subsequent allocation by the
superior court of only five percent of the net proceeds to Jeremiah
did not harm the State because it was still entitled to a credit
against the "global" proceeds. [Fn. 9]  They contended further that
pro rata costs and fees were due not only on reimbursed benefits,
but future benefits as well. 
          The Board ruled in favor of the Kacyons on both issues. 
Specifically, the Board ruled that 
          [e]mployer shall pay Applicants compensation
benefits, for so long as they remain otherwise eligible, in an
amount equal to thirty percent of the compensation which would
otherwise be payable in the absence of the third party settlement
as reimbursement for their Cooper v. Argonaut[ [Fn. 10]] fees, for
their successful efforts in the third party action. 

In reaching this conclusion the Board held that Jeremiah's claim
for fees based on thirty percent of future benefits saved by the
State was not barred by AS 23.30.015(h) because the allocation to
Jeremiah was a judicial determination.  
          The State sought reconsideration, seeking, inter alia,
clarification as to "what happens . . . when the minor's allocation
of the settlement proceeds is exhausted by the compensation off-
set?"  The State explained this request as follows:  
          The Board did not state in its order that the
minor, Jeremiah, is entitled to anything more than his attorney fee
reimbursement so long as he is eligible for compensation, implying
that the compensation entitlement continues to be off-set against
the global settlement so long as he remains eligible.  However, the
Board states no statutory authority for such action, and the
employer desires further clarification of the Board's intent and
its authority for such action. 

          The Board issued a decision on reconsideration, ordering
that full payments to Jeremiah should resume when the subsection
.015(g) credit is exhausted. [Fn. 11] 
          The State appealed, but only as to whether future
benefits for Jeremiah were forfeited under AS 23.30.015(h).  The
superior court affirmed and the State brings the present appeal. 
     Contentions of the Parties on Appeal
          The State contends that its liability to pay future
benefits to Jeremiah was extinguished under AS 23.30.015(h).  It
argues that the amount allocated to Jeremiah by the superior court
was the final step of a compromise of Jeremiah's claim against
Hageland.  Since the allocated sum was less than the compensation
to which Jeremiah would be entitled from the State and it is
uncontested that the allocation was made without the State's
approval, the State argues that the conditions required by
subsection .015(h) have been satisfied.  The State contends that
the Board's rationale that the allocation was not a compromise but
a judicial determination creates false opposites, for judicial
approval of a compromise does not remove a compromise from the
application of subsection .015(h).  The State also argues that if
judicial approval of the settlement took the settlement out of
subsection .015(h) the Board should have ruled that the State
should have been given notice and an opportunity to be heard in
connection with the approval of the settlement. 
          In response, Jeremiah argues first that the "compromise"
to which subsection .015(h) refers is the unallocated settlement
between Georgina as personal representative and Hageland.  Since
this settlement was greater than amounts paid as compensation and
any amount the State would have to pay in the future to both of 
Randall's beneficiaries, subsection (h) does not apply.  Because
the settlement is greater than all benefits paid and payable by the
State, the State is not liable for future payments to him, except
for pro rata fees and costs on benefits saved.  Second, Jeremiah
contends that subsection (h) does not apply because the allocation
to him was not the product of a compromise with a third person but
the result of a court order applying an approved method of
allocating proceeds between beneficiaries in a wrongful death case. 
He argues further that the State's claim that it should have been
notified and given an opportunity to be heard in the court
proceedings regarding the allocation presents no more than a
possible claim of harmless error, for if the State had been allowed
to participate and had convinced the court to allocate an amount to
Jeremiah greater than compensation paid and payable to him, the
State "would be in exactly the same position that the [Kacyons]
believe [it] to be in presently."
          We agree with the State that judicial approval of a
compromise affecting a minor does not necessarily create an
exception to subsection .015(h).  While we have never decided what
constitutes a "compromise" for the purposes of subsection .015(h),
courts interpreting similar workers' compensation statutes have
been presented with this question.  
          In Banks v. Chicago Grain Trimmers Ass'n, one question
was whether an employee's acceptance of a remittitur following a
favorable verdict was a compromise under an analogous provision of
the Longshoremen's and Harbor Workers' Compensation Act. [Fn. 12] 
The Court held that accepting a remittitur was not a compromise
because "[a]n order of remittitur is a judicial determination of
recoverable damages; it is not an agreement among the parties
involving mutual concessions." [Fn. 13]  The Court also stated that
the purpose of the compromise provision was to protect "the
employer against his employee's accepting too little for his cause
of action against a third party.  That danger is not present when
damages are determined, not by negotiations between the employee
and the third party, but rather by the independent evaluation of a
trial judge." [Fn. 14] 
          By contrast, in Morauer & Hartzell, Inc. v. Woodworth,
the question presented was whether a settlement in an amount which
had been suggested by the trial judge at a pre-trial settlement
conference and which was put in the form of a consent judgment was
a compromise under the Longshoremen's Act. [Fn. 15]  The court held
that the consent judgment was a compromise rather than a judicial
determination because, among other reasons, "the consent judgment
was not the result of the judge's independent finding of the value
of the claim after full presentation of the evidence, but was at
most an informal exploratory attempt to determine the possibilities
for private settlement . . . ." [Fn. 16]  The court also observed
that since the employee "was free to reject the settlement
opportunity and have the case heard, the possibility of prejudice
to the employer, arising from [the employee's] acceptance of a
lesser amount than a jury might award, did exist here." [Fn. 17]
          Civil Rule 90.2 requires a court to "determine that the
terms on which a minor's claim will be compromised are fair and
reasonable," [Fn. 18] and to hold a hearing if the net settlement
proceeds  exceed $25,000. [Fn. 19]  The court's role in a Civil
Rule 90.2 proceeding is not analogous to that of a trier of fact
charged with the responsibility of determining damages in a civil
action.  Instead, the court in a Civil Rule 90.2 proceeding merely
determines whether a settlement is fair and reasonable.  And the
determination is typically not made after a full presentation of
the evidence.  Instead the facts sufficient to demonstrate the
reasonableness of the settlement are usually presented in summary
form, typically in a nonadversarial context.  
          That pattern held in this case, as Georgina was the only
witness to testify at the Rule 90.2 hearing.  The hearing was very
brief -- its transcript is less than seven pages long.  The
proposed allocation between Georgina and Jeremiah which the court
approved was not contested.  And while the years-of-dependency
formula which the allocation employed has been approved by this
court, [Fn. 20] it is by no means the exclusive method by which
wrongful death damages may be allocated between a surviving spouse
and a child.  An adversary presentation might well have produced a
greater allocation in favor of Jeremiah.  For these reasons we
conclude that the Civil Rule 90.2 hearing did not suffice to remove
this case from the compromise provisions of AS 23.30.015(h).
          But this only means that the "compromise" language of
subsection (h) has been satisfied.  Still to be answered is whether
the compromise at issue is the global settlement or the allocation
to Jeremiah.  On this point our view is that the global settlement
should be regarded as the relevant compromise under the
circumstances of this case.
          Alaska Statute 23.30.015(g) and (h) lend themselves to a
construction that they apply to "global" settlements reached by
personal representatives with third-party tortfeasors.  These
subsections do not speak of breaking down benefits among the
beneficiaries of a deceased worker.  Instead, subsection .015(g)
requires the employee's representative to "promptly pay to the
employer the total amounts paid by the employer under (e)(1)(A)-(C)
of this section insofar as the recovery is sufficient after
deducting all litigation costs and expenses."  (Emphasis added.) 
Subsection .015(e)(1)(C) in turn encompasses "all amounts paid as
compensation."  And an excess recovery by the representative "shall
be credited against any amount payable by the employer thereafter." 
          In the present case Georgina's and Jeremiah's benefits
were to some extent interdependent.  If Jeremiah became ineligible
his share would be paid to Georgina.  Moreover, in the proceedings
before the Board the Kacyons agreed that the global settlement
should be the measure of the credit the State was entitled to as to
their collective compensation benefits and foreswore any claim for
future compensation benefits except for pro rata costs and fees. 
Given the Kacyons' concession, the State is made no worse off by
the allocation than it would have been if Jeremiah's allocation had
been greater than the amount of workers' compensation he was due.
[Fn. 21] 
          Under these circumstances, we believe that the global
settlement should be considered the relevant compromise to which
subsection (h) refers. [Fn. 22]  The subsequent allocation did
nothing to prejudice the State and, "in the absence of language
plainly demanding it, a construction is not to be favored which
visits a forfeiture on the employee or his dependent and gives a
windfall to the [employer]." [Fn. 23]
          The judgment of the superior court is reversed and this
case is remanded to the Board with directions to vacate its
decision on reconsideration requiring that full payments to
Jeremiah resume when the sum allocated to him from the global
settlement is exhausted.  The Board should reinstate its earlier
order that Jeremiah should receive as reimbursement for costs and
fees incurred in the third-party action an amount equal to thirty
percent of the compensation to which he otherwise would be
entitled.  Appropriate offsets should be ordered to correct
overpayments that Jeremiah has received.  REVERSED and REMANDED.


Footnote 1:

     Because a number of the subsections of AS 23.30.015 are
relevant to this appeal we set out all of the relevant subsections
at this point as they existed at the time this case was decided by
the Workers' Compensation Board.

                         (a) If on account of disability or death
                    for which compensation is payable under this
                    chapter the person entitled to the
                    compensation believes that a third person
                    other than the employer or a fellow employee
                    is liable for damages, the person need not
                    elect whether to receive compensation or to
                    recover damages from the third person.
                         (b) Acceptance of compensation under an
                    award in a compensation order filed by the
                    board operates as an assignment to the
                    employer of all rights of the person entitled
                    to compensation and the personal
                    representative of a deceased employee to
                    recover damages from the third person unless
                    the person or representative entitled to
                    compensation commences an action against the
                    third person within one year after an award.
                         . . . .
                         (e) An amount recovered by the employer
                    under an assignment, whether by action or
                    compromise, shall be distributed as follows:
                         (1) the employer shall retain an amount
                    equal to
                         (A) the expenses incurred by the employer
                    in respect to the action or compromise,
                    including a reasonable attorney fee determined
                    by the board;
                         (B) the cost of all benefits actually
                    furnished by the employer under this chapter;
                         (C) all amounts paid as compensation and
                    second-injury fund payments;
                         (D) the present value of all amounts
                    payable later as compensation (present value
                    to be computed from a schedule prepared by the
                    board), and the present value of the cost of
                    all benefits to be furnished later under AS
                    23.30.095 (as estimated by the board), the
                    amounts so computed and estimated to be
                    retained by the employer as a trust fund to
                    pay compensation and the cost of benefits as
                    they become due and to pay any finally
                    remaining excess sum to the person entitled to
                    compensation or to the representative; and
                         (2) the employer shall pay any excess to
                    the person entitled to compensation or to the
                    representative of that person.
                         (f) Even if an employee, the employee's
                    representative, or the employer brings an
                    action or settles a claim against the third
                    person, the employer shall pay the benefits
                    and compensation required by this chapter.
                         (g) If the employee or the employee's
                    representative recovers damages from the third
                    person, the employee or representative shall
                    promptly pay to the employer the total amounts
                    paid by the employer under (e)(1)(A)-(C) of
                    this section insofar as the recovery is
                    sufficient after deducting all litigation
                    costs and expenses.  Any excess recovery by
                    the employee or representative shall be
                    credited against any amount payable by the
                    employer thereafter.  If the employer is
                    allocated a percentage of fault under AS
                    09.17.080, the amount due the employer under
                    this subsection shall be reduced by an amount
                    equal to the employer's equitable share of
                    damages assessed under AS 09.17.080(c).
                         (h) If compromise with a third person is
                    made by the person entitled to compensation or
                    the representative of that person of an amount
                    less than the compensation to which the person
                    or representative would be entitled, the
                    employer is liable for compensation stated in
                    (f) of this section only if the compromise is
                    made with the employer's written approval.
                         . . . .
                         (j) Notice of the commencement of an
                    action against a third party shall be given to
                    the board and to all interested parties within
                    30 days.
                    Footnote 2:
                         See Stone v. Fluid Air Components of
                    Alaska, 990 P.2d 621, 624-25 (Alaska 1999);
                    Cooper v. Argonaut Ins. Cos., 556 P.2d 525,
                    526 (Alaska 1976). 
                    Footnote 3:
                         See AS 23.30.215(a), 23.30.395(7).
                    Footnote 4:
                         See AS 23.30.215(a),(f),(g) as it existed
                    at the time of Randall's death.
                    Footnote 5:
                         See AS 23.30.215(e).
                    Footnote 6:
                         See AS 23.30.015(j).
                    Footnote 7:
                         561 P.2d 722 (Alaska 1977).
                    Footnote 8:
                         This was an open question until it was
                    answered in 1999 in Stone, 990 P.2d at 623.
                    Footnote 9:
                         The Kacyons' position on this point was
                    expressed as follows in their reply brief
                    before the Workers' Compensation Board:  
                              [S]uppose that the
                    proceeds had been allocated by the court
                    equally between Ms. Kacyon and Jeremiah. 
                    Clearly, in that situation, the State would be
                    entitled to recover all compensation benefits
                    previously paid to both claimants, subject to
                    its obligation to share pro-rata in their
                    litigation expenses, and would be relieved of
                    the obligation to make future payments to both
                    claimants, subject to whatever obligation to
                    share in litigation expenses attributable to
                    the benefits the Board determines to be
                    appropriate.  That is exactly the same
                    situation that exists under the allocation in
                    question.  Applicant has not sought, and does
                    not seek, worker's compensation payments to
                    Jeremiah in the future except to the extent
                    that the State is obligated to pay a pro-rata
                    share of the attorney's fees incurred in
                    relieving it of the obligation to make them. 
                    It is in exactly the same position it would be
                    in if the proceeds had been allocated
                    Footnote 10:
                         Cooper v. Argonaut Ins. Cos., 556 P.2d
                    525 (Alaska 1976).
                    Footnote 11:
                         According to the State, full payments of
                    $350 resumed in March of 2000. 
                    Footnote 12:
                         390 U.S. 459, 466-67 (1968). 
                    Footnote 13:
                         Id. at 467.
                    Footnote 14:
                    Footnote 15:
                         439 F.2d 550, 553 (D.C. Cir. 1970).
                    Footnote 16:
                    Footnote 17:
                    Footnote 18:
                         In re Estate of Brandon, 902 P.2d 1299,
                    1310 (Alaska 1995).
                    Footnote 19:
                         Alaska R. Civ. P. 90.2(4).
                    Footnote 20:
                         See Horsford, 561 P.2d at 727. 
                    Footnote 21:
                         The Kacyons' concession resembles the
                    concession made by the employee in Bell v.
                    O'Hearne, 284 F.2d 777 (4th Cir. 1960).  There
                    the employee recovered a judgment for $6,500
                    after trial in a third-party action.  Id. at
                    778.  The third party appealed and while the
                    case was on appeal the employee settled the
                    case for $5,000 without first obtaining
                    written approval of the employer.  Id.  The
                    employee took the position that the employer
                    should be credited the full amount of the
                    judgment, $6,500, rather than merely the
                    amount of the settlement, $5,000, against
                    future compensation benefits.  Id. at 778-79. 
                    In view of this concession, the court held
                    that the discounted settlement was not a
                    compromise within the meaning of the
                    compromise provisions of the Longshoremen's
                    Act:  "There was no compromise here of any
                    interest with which the employer was in any
                    way concerned, or to which the provision in
                    section 933(g) was directed."  Id. at 781.
                    Footnote 22:
                         In different circumstances it may be
                    appropriate to consider individual allocations
                    as compromises under subsection .015(h).  In
                    Gossett v. ERA Meyeres Real Estate, for
                    example, we concluded that a global settlement
                    must be allocated before the beneficiary's
                    share of the apportioned settlement can be
                    compared against the amount of the employer's
                    liability.  787 P.2d 1025, 1026-27 (Alaska
                    1990).  In Gossett, however, the global
                    settlement was made in payment of the
                    employee's claim and his wife's loss of
                    consortium claim.  Id. at 1026.  Unlike the
                    Kacyons' situation, where each has received
                    and is due workers' compensation benefits, any
                    recovery by the wife in Gossett was not
                    subject to a credit against amounts payable by
                    the employer.  Id. 
                    Footnote 23:
                         Bell, 284 F.2d at 781.