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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Scammon Bay Association, Inc. v. David Ulak (12/23/2005) sp-5971

Scammon Bay Association, Inc. v. David Ulak (12/23/2005) sp-5971

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

SCAMMON BAY ASSOCIATION, INC., )
and its workers compensation carrier, ) Supreme Court No. S-11392
AMERICAN INTERNATIONAL GROUP, INC., )
)
Appellants, )
) Superior Court No.
v. ) 4BE-02-130 CI
)
DAVID ULAK, SUBURBAN PROPANE, ) O P I N I O N
L.P., a foreign corporation, and WAVE )
FUELS & TRANSPORTATION, LLC, )
a domestic company, )
)
Appellees. ) [No. 5971 - December 23, 2005]
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Dale O. Curda, Judge.

          Appearances:  Erling T. Johansen,  Davison  &
          Davison,  Inc.,  Anchorage,  for  Appellants.
          Thomas  Van Flein, John B. Thorsness,  Clapp,
          Peterson,  Van Flein, Tiemessen &  Thorsness,
          LLC,   Anchorage,   for   Appellee   Suburban
          Propane, L.P.  Michael P. McConahy, McConahy,
          Zimmerman & Wallace, Fairbanks, for  Appellee
          Wave Fuels & Transportation, LLC.

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

          MATTHEWS, Justice.


I.   INTRODUCTION
          An  employee  was  injured on  the  job  and  recovered
workers  compensation benefits from the employer.   The  employee
then  sued  other potential tortfeasors.  Under AS  23.30.015(g),
the employer would normally have a lien on any money the employee
recovered  from other tortfeasors, up to the amount  of  benefits
paid  by  the  employer to the employee.  But in this  case,  the
employee  and  the tortfeasors settled their dispute  and  agreed
that  the  employer  was twenty-five percent  at  fault  for  the
accident, and proposed that the superior court hold a hearing and
then  make  a finding to this effect.  Under subsection  .015(g),
this  finding of fault could arguably have the effect  of  wiping
out  the  employers lien.  Concerned about this possibility,  the
employer  moved  to  intervene  in  the  litigation  between  the
employee  and  the  tortfeasors.  The superior court  denied  the
motion,  primarily because the motion was not made until the  day
before  the  hearing.   The superior court then  made  a  written
finding  that the employer was twenty-five percent at  fault  for
the  employees  injuries, and entered a judgment  dismissing  the
employees claims against the other tortfeasors.  The employer has
appealed,  arguing  that  the superior  court  erred  in  denying
intervention.  We agree.  Given the late date that  the  employer
learned  about the proposal to eliminate its lien, we  think  the
intervention motion was not untimely.  We therefore  reverse  the
denial  of  the motion, vacate the superior courts findings,  and
remand the case for further proceedings.
II.  FACTS AND PROCEEDINGS
          The following facts do not appear to be contested.   In
March  2001  David Ulak was employed by Scammon Bay  Association,
Inc.,  as  a  gas station attendant.  His hands were  exposed  to
liquid  propane when he disconnected a fill line coupling from  a
storage  tank,  and he lost six fingers as a result.   After  the
accident, Scammon Bay filed a report of occupational injury under
the  Workers Compensation Act.  Since then, Scammon Bays insurer,
American  International Group, Inc., has paid more than  $150,000
in  disability benefits, medical expenses, and other expenses  on
Ulaks behalf.1
          In  May 2002 Ulak filed a complaint against Wave  Fuels
and  Suburban  Propane.   Wave  Fuels  contracted  with  Suburban
Propane  to  supply  propane  to  the  Scammon  Bay  Association.
Suburban  Propane supplied the tank and the propane and  arranged
for  their transportation to Scammon Bay.  The complaint alleged,
among  other things, that Suburban and Wave were strictly  liable
as  owners of an ultra-hazardous substance, that the storage tank
was  defective, and that Suburban and Wave failed  to  warn  Ulak
about the dangers of liquid propane.  The complaint did not  name
Scammon  Bay  as  a  defendant, presumably because  AS  23.30.055
limits  an  employers  liability for most workplace  injuries  to
          payment of workers compensation, which Scammon Bay was already
paying Ulak.
          After  some discovery was conducted, the parties  moved
for  partial  summary judgment on various claims.  In  June  2003
Wave  and  Suburban also moved for an order that would  authorize
the  jury, in the event of a trial, to allocate fault to  Scammon
Bay.   The  motion concerning Scammon Bays fault was  significant
for  several reasons.  First, a jury finding that Scammon Bay was
at  fault  would  reduce Wave and Suburbans liability  for  Ulaks
injuries  under AS 09.17.080(c).2  Second, although  Scammon  Bay
would  normally  have  a  right under AS 23.30.015(g)  to  recoup
workers  compensation benefits paid from any amount recovered  by
Ulak  from  Wave and Suburban, subsection .015(g) also says  that
this  lien  is reduced  by the amount of fault allocated  to  the
employer  under  AS 09.17.080(c).3  Ulak opposed  the  motion  to
permit  the  jury  to allocate fault to Scammon  Bay,  presumably
because  his  first  priority at the time  was  to  maximize  his
recovery  from Suburban and Wave, even though it might result  in
Scammon  Bay obtaining a $150,000 lien on any recovery.  As  late
as  September  24, 2003, Ulak was submitting briefs arguing  that
Scammon Bay was not at fault as a matter of law.
           With the motions pending, Ulak, Wave, and Scammon  Bay
began  settlement  talks in fall 2003 with a  mediator.   In  its
brief  to  this  court,  Scammon Bay  admits  that  it  initially
participated  in  these  talks.  Ulaks attorney  later  told  the
superior  court  that  Scammon Bay had abandoned  the  settlement
talks early in the process and that there had been correspondence
with  Scammon  Bays attorney about the outcome of the  mediation.
These representations are quoted in Waves brief to this court and
do not seem to be disputed by Scammon Bay.
          On  November 3, 2003, Ulak, Wave, and Suburban appeared
before  Superior Court Judge Dale O. Curda, ostensibly  to  argue
their motions.  Scammon Bay was not present at the hearing, which
focused entirely on settlement instead of on the pending motions.
The  attorneys  for  the parties told the  court  that  Wave  was
willing  to  pay Ulak $275,000, and Suburban was willing  to  pay
$425,000.   As  described by one of the attorneys,  Suburban  and
Wave  would,  as part of the proposed settlement,   assume  Ulaks
obligation to deal with Scammon Bays lien.  But Suburbans  lawyer
told   the   court  that  Suburbans  settlement  with  Ulak   was
conditioned, at least by my client, on not having to pay anything
toward the workers compensation lien.  Suburbans lawyer also told
the  court  that it was the parties view that it was not  even  a
close call that a trial would result in an allocation of fault to
Scammon  Bay sufficient to wipe out the lien. Far from  objecting
to  this characterization, Ulaks lawyer observed that Scammon Bay
knew  about the hearing, refused to admit fault, had declined  to
participate in the case, and was holding the parties  hostage  in
their attempt to settle the case.  Scammon Bay does not argue  on
this  appeal that it was unaware of the November hearing  or  the
possibility  that  the  parties  proposed  settlement  might   be
discussed.
          The  November  hearing  ended without  any  resolution.
Suburbans  lawyer said the parties objective was to get  $700,000
          into the plaintiffs hands . . . and also essentially do away with
the   workers  compensation  lien.   Suburbans  lawyer  initially
suggested that the parties should join Scammon Bay to the  action
as  a  necessary party under Alaska Civil Rule 19, but  concluded
that  since Scammon Bay had gotten adequate notice and  so  forth
and  .  .  . they can be bound, then maybe we can proceed without
them.  This prompted Waves lawyer to propose that the court enter
findings  based  on stipulation, briefing, and oral  argument  to
eliminate  the lien and approve the settlement.  The  court  took
the  matter under advisement, and said it would get something out
in writing to specify the next step.
          On  December  15, 2003, the court issued  a  notice  of
hearing.   This notice set a hearing date for January  29,  2004,
said the court would make a fault-allocation finding as discussed
on  November 3, and asked the parties to submit proposed  factual
findings  consistent with the proposed settlement by  23  January
2004.  The court clerk served this notice on the parties  but not
on  Scammon  Bay.  This notice effectively superseded an  earlier
order  scheduling a jury trial on the merits to begin during  the
week of January 5, 2004.
          On  January  15, 2004, Ulaks lawyer mailed (via  first-
class  U.S.  mail) the courts notice and his own  notice  to  the
parties and to Scammon Bays lawyer.  Ulaks notice stated that the
purpose  of the January 29 hearing would be to assess the parties
and Scammon Bays equitable share of damages under the comparative
fault  statute  and  AS  23.30.015(g), and  specifically  invited
Scammon  Bay  to  attend and participate.  A few days  later,  on
January  21, 2004, Suburban mailed a copy of the parties proposed
findings of fact and conclusions of law to Scammon Bays attorney.
The findings (apparently agreed upon by Ulak, Wave, and Suburban)
allocated  twenty-five percent of the fault for Ulaks  injury  to
Scammon  Bay,  set  Ulaks damages at $2 million,  and  explicitly
purported  to  wipe  out Scammon Bays lien  until  such  time  as
benefits  paid  reached  $500,000.  Scammon  Bay  received  these
proposed  findings  on January 22, the same day  that  they  were
filed in the trial court.
          Late in the afternoon of January 28, 2004, Scammon  Bay
began  faxing thirty-seven pages of court papers to the  superior
court  clerk,  including a motion for intervention of  right  and
permissive  intervention under Alaska Civil Rule 24(a)  and  (b),
and  a discovery request directed at each party seeking documents
pertaining to the settlement. The same day, Scammon Bay faxed and
mailed  these papers to Waves lawyer and hand-delivered  them  to
the  lawyers  for  Ulak  and Suburban.  Scammon  Bays  motion  to
intervene  argued that under the relevant statutes and under  the
equal  protection and due process clauses Scammon Bays lien could
not  be  wiped out without an adversarial hearing.   Scammon  Bay
also  said (in conclusory fashion) in its brief accompanying  the
motion  that it was not at fault for Ulaks injuries and that  the
settlement under-compensated Ulak.
          The  next  day, January 29, the court held  a  hearing.
Scammon Bays lawyer called in to participate by telephone in  the
hearing,  but the court did not take the call and did  not  allow
him  to  participate.4  The court then denied Scammon Bays motion
          to intervene.  The courts findings on the timeliness of the
intervention  motion focused on Scammon Bays prior  awareness  of
the proceedings, the lapse of time since the complaint was filed,
the  fact  that the hearing was taking place after the date  that
had  originally  been  set for trial, and the  delay  that  would
result  from entertaining a last-minute attempt to try the  issue
of Scammon Bays fault:
          I  think its clear the main issue here is the
          matter  of  timeliness.  Its been two  years.
          The  original complaint was filed in  May  of
          2002,  the injury took place over three years
          ago.   Its  obvious its very untimely,  aside
          from   the  other  things  Ive  noticed  here
          regarding the rush to get the paperwork  here
          this  afternoon, at the last  minute  almost,
          before the court.
          
               Secondly,    as   far   as    permissive
          intervention,   the  court   shall   consider
          whether the intervention will unduly delay or
          prejudice the adjudication of the rights of a
          party,  not only is that a yes, but  thats  a
          resounding   yes.   It  would   be   horrific
          consequences  here for the whole  concept  of
          the  litigation process, aside from Mr. Ulaks
          injuries,  to delay this case at  this  point
          and  allow intervention.  As the parties have
          pointed out, this is the time for trial,  and
          if  we  did have a jury coming in here,  that
          whoever  tried  to  intervene  would  not  be
          allowed  to intervene, and this is  the  time
          for trial and  on the facts.
          
               . . . .
          
               And,  finally  .  . . the  parties  have
          indicated  as  part of the  background  here,
          throughout this file its very clear that  Mr.
          Johansen  and  his  client [Scammon  Bay  and
          American  International Group] had notice  of
          the  proceedings  and they  couldnt  come  in
          unless  they acceded to it, and they  decided
          not   to.    And  its  clearly   unfair   and
          prejudicial  to everyone here  involved  here
          for  the court to allow intervention at  this
          time.
          
The  court went on to say it would approve the findings of  fact,
emphasizing  that  the  case  had  been  hard-fought  and  highly
intensively litigated, that the parties had submitted a  several-
inch file of depositions to support the findings, that these  are
not  stipulated facts, that the court had read these papers,  and
that it believed the fault allocation to Scammon Bay was within a
ballpark  .  . . which is entirely appropriate.  Soon  afterward,
the  court  signed  the  parties written  findings  of  fact  and
conclusions  of  law.  These findings and conclusions  prohibited
Scammon  Bay from asserting a lien on Ulaks recovery  and  barred
Scammon  Bay from using the recovery as an offset against  future
benefits until total benefits paid exceeded $500,000.  The  court
subsequently  entered a judgment dismissing  the  complaint  with
prejudice.
          Scammon Bay appealed.
III. DISCUSSION
          A  failed  intervenor has standing to appeal  only  the
denial  of  intervention, so we will consider that issue  without
reaching   Scammon  Bays  arguments  that  the  superior   courts
allocation  of  fault was clearly erroneous or  is  unenforceable
against Scammon Bay.5
          A timely application is a prerequisite to intervention,
whether the movant seeks mandatory intervention under Civil  Rule
24(a)  or  permissive intervention under Rule 24(b).6  Timeliness
is   the   only  issue  here,  since  the  superior  court   said
untimeliness was the main reason for its decision to deny Scammon
Bays  motion to intervene and the parties appear to concede  that
Scammon Bay is otherwise entitled to intervention of right  under
Rule  24(a).   We  review the superior courts assessment  of  the
timeliness of Scammon Bays motion for abuse of discretion.7
          We  have said that the trial court should determine the
timeliness of a proposed intervention by weighing  the  lapse  of
time  in the light of all the circumstances of the case, focusing
on  whether  any delay in moving for intervention will  prejudice
the  existing parties to the case.8  The federal courts have made
this inquiry somewhat more specific.  They look at four factors:
          (1) the length of time the applicant knew  or
          reasonably   should  have  known   that   its
          interest  was imperilled before it  moved  to
          intervene;  (2) the foreseeable prejudice  to
          existing  parties if intervention is granted;
          (3)   the   foreseeable  prejudice   to   the
          applicant if intervention is denied; and  (4)
          idiocratic   circumstances   which,    fairly
          viewed,     militate    for    or     against
          intervention.[9]
          
Federal law also offers some guidance on how to weigh these  four
factors.   According to the Wright & Miller treatise  on  federal
procedure, motions to intervene of right are found to be untimely
less  often than are permissive intervention motions due  to  the
greater likelihood of prejudice to the applicant.10  In addition,
the  requirement of timeliness is not a means of  punishment  for
the  dilatory.   Instead, the most important  consideration  when
making  the timeliness determination is the prejudice  caused  by
the  applicants  delay in making its motion.11   We  have  relied
before on federal practice in applying Rule 2412 and will use the
four-factor  test  and  the accompanying  interpretive  rules  to
determine the timeliness of Scammon Bays motion.
          Under this framework, we think that it was an abuse  of
discretion to deny Scammon Bays motion as untimely.13
          The  first factor is the length of Scammon Bays  delay.
          The question is when Scammon Bay should have known that its
interest  in the case would no longer be adequately protected  by
the  existing parties.14  The superior court said [i]ts been  two
years,  apparently charging Scammon Bay with a duty to  intervene
as  soon  as the complaint was filed.  We do not think  the  duty
arose then.
          An  employer  with a compensation lien whose  fault  is
subject  to  allocation during litigation brought by  an  injured
worker  under  AS 23.30.015 has several interests.  The  employer
wants  the  plaintiff to recover from the third party  an  amount
sufficient  to  cover its lien and to provide an  offset  against
future  benefits.   The  employer  also  wants  to  minimize  its
equitable  share  of  damages assessed  under  AS  09.17.080(c)15
because that amount will be deducted from its lien and, if it  is
greater  than the lien, will require the employer to keep  paying
future  benefits  until  the lien plus the  benefits  exceed  the
equitable  share.16  The  equitable share  can  be  minimized  by
establishing that the employer either bears no responsibility for
the  accident  or only a slight degree of responsibility.   These
interests  of the employer will usually be consistent with  those
of  the  plaintiff.   A rule that would require  an  employer  to
intervene in section .015 actions as a matter of course would  be
undesirable because, as we noted in Wichman, there is a potential
for  prejudice to the employee . . . by joining the holder  of  a
right  to reimbursement of workers compensation benefits as party
plaintiff  before  trial in an employees  suit  against  a  third
party.17
          In  this  case  Scammon  Bay had  good  reason  not  to
intervene  at the outset of the litigation or when the defendants
moved  for an order that would permit the jury to allocate  fault
to  Scammon Bay.  Ulak was represented by competent counsel,  his
interests  were  consistent  with  Scammon  Bays,   and  he   was
opposing any allocation of fault to Scammon Bay.  Indeed  one  of
the grounds for Ulaks opposition to allocation to Scammon Bay was
an  empty chair argument based on the assumption that it is  easy
to  lay  disproportionate   blame at trial  on  an  unrepresented
actor.   This  argument would have been undercut by Scammon  Bays
intervention.
          The next point at which it might be argued that Scammon
Bay  should have intervened is at or around the November 3,  2003
hearing.  By the November hearing the situation had changed.  The
parties  had agreed on how much Wave and Suburban should pay  and
they  were  unified  in seeking to eliminate Scammon  Bays  lien,
either as a means of sweetening the pot for Ulak or as a means of
diminishing the amount the settlement required Wave and  Suburban
to  pay.   It  also  seems that Scammon  Bay  was  aware  that  a
settlement  was in the works, that there would be  a  hearing  on
this,  and  that even Ulak viewed Scammon Bays lien as  a  monkey
wrench.   Moreover, by November 20, Scammon Bay had obtained  the
courts  log  notes  showing that Wave  had  urged  the  court  to
allocate  fault  to Scammon Bay (as one of several  options)  and
that the court had taken the matter under advisement.
          Yet  we  do  not  believe that  Scammon  Bays  duty  to
intervene  arose in November.  At this point, Ulaks  interest  in
          eliminating the lien was contingent on the superior courts
approving  the  settlement, which in turn was contingent  on  the
courts  willingness to make a summary finding that  Scammon  Bays
equitable  share  of  damages  was at  least  $150,000.   Neither
Scammon  Bay  nor the parties to the action knew what  the  court
would  do  following  the  November 3  hearing.   Had  the  court
rejected  the  possibility of a summary finding  against  Scammon
Bay,  thereby  rejecting the tentative settlement,  Scammon  Bays
interests  would  have  been realigned  with  Ulaks,  vindicating
Scammon  Bays  decision to stay out.  At a minimum,  Scammon  Bay
reasonably could have expected that no summary finding binding on
it  would  be  made  unless  it  first  received  notice  and  an
opportunity to be heard.
          The issue is therefore when Scammon Bay received notice
that  the court really was going to adjudicate the extent of  its
fault.18  On December 15 the court  issued a notice of hearing for
the purpose of allocating fault to Scammon Bay.  But, in what was
probably  an oversight by the parties and the court, Scammon  Bay
was  not  notified of this hearing until Ulaks lawyer mailed  the
notice  to  Scammon  Bay  on  January 15,  specifically  inviting
Scammon  Bay  to participate.  Assuming two days for delivery  by
the  post  office (both sender and receiver being in  Anchorage),
Scammon Bay was first informed of the hearing on January 17.   We
conclude that this was the date upon which Scammon Bays  duty  to
intervene  arose.   Measured from January 17,  only  twelve  days
elapsed  before  Scammon Bay submitted its motion  to  intervene.
This is a relatively short delay.19
          The  second factor to be considered in determining  the
timeliness  of  Scammon  Bays  attempted  intervention   is   the
prejudice to the existing parties caused by the delay.  The court
said  there  would be horrific consequences here  for  the  whole
concept of the litigation process, aside from Mr. Ulaks injuries,
to  delay  this  case  at  this  point  and  allow  intervention,
apparently because January 29 was the time for trial.   We  think
there  are  several  problems with this assessment.   First,  the
court  appeared  to  take into account the prejudice  that  would
follow  from  granting intervention generally,  rather  than  the
prejudice  specifically  resulting  from  Scammon  Bays  lack  of
diligence, if any, in moving to intervene.20  Second, January  29
was  not  actually  the  time for trial.  Although  the  original
scheduling order had set trial for the week of January  5,  2004,
this  timing  had been abandoned by December 15, 2003,  when  the
court ordered the parties to submit proposed findings of fact for
a  summary  hearing on January 29.  The hearing  notice  did  not
contemplate a trial or anything like a trial and indeed the court
ruled  on  the  proposed findings entirely on the  basis  of  the
written  record.  There was no jury selection and  presumably  no
preparation by the court or the parties for a trial on that date.
          This  is  not  to say that there was no prejudice  from
Scammon  Bays delay.21  Had Scammon Bay submitted its  papers  at
least  two  or three days before the hearing, instead of  at  the
last  minute,  it certainly would have been more  convenient  for
everyone.   The  hearing probably would have  been  cancelled  or
postponed,  if only to give the parties some time to  respond  to
          Scammon Bays motion.  This would have saved the attorneys (and
Ulak himself) the trouble of coming to Bethel and saved the court
the trouble of preparing for a hearing on Scammon Bays fault.  In
this  way,  Scammon  Bays  motion  did  threaten  a  last  minute
disruption  of at least some painstaking work by the parties  and
the court, and preventing such disruptions remains the purpose of
the  basic  requirement  that  the application  to  intervene  be
timely.22   All  the same, the waste of other peoples  time  that
would have been caused by Scammon Bays delay (had its motion been
granted)  still  seems relatively small, being much  smaller  for
example  than  the disruption that would result from  granting  a
motion made on the eve of an actual  trial.
          The third factor to consider in the timeliness analysis
is the prejudice to Scammon Bay of having its motion denied.  The
superior  court  did not say anything about this factor,  but  it
seems  obvious that the prejudice to Scammon Bay from the  denial
of  its  motion is potentially severe.  The superior  court  made
written  findings that purport to deprive Scammon Bay of  a  lien
worth  $150,000 and an offset against future benefits of  another
$350,000.  Yet this was done without giving Scammon Bay (then the
only entity with an interest in protecting Scammon Bays interest)
a  chance to be heard in defense of its rights.  At a minimum, we
think  a  potential intervenor has been significantly  prejudiced
where it is denied a chance to contest a claim against it of this
magnitude.
          But what if the superior courts finding does not have a
preclusive  effect on Scammon Bay?  Scammon Bay argues  that  the
summary  finding made in this case is not enforceable  under  the
comparative  fault  scheme and that giving  the  finding  such  a
preclusive  effect  would  violate  the  due  process  and  equal
protection  clauses.  If these arguments are  correct,  then  the
courts finding would be a nullity with respect to Scammon Bay and
the  denial of intervention would not result in any prejudice  to
Scammon  Bay.   The  absence of prejudice to  Scammon  Bay  would
weaken  Scammon  Bays argument for why it should  be  allowed  to
intervene23 but Scammon Bay would hardly mind losing that  battle
so  long as it wins the war to protect its lien.  Do we then need
to  determine  the  preclusive effect  of  the  fault  allocation
entered  against Scammon Bay, if only to decide  whether  it  was
erroneous  to  deny intervention?  Because we must  consider  the
prejudice  not  only  to Scammon Bay but  also  to  the  existing
parties, the answer is no.  If Scammon Bay were correct about the
preclusive  effect (or lack thereof) of the courts  finding,  the
resulting prejudice to Wave, Suburban, and/or Ulak would militate
against  denying  intervention to  Scammon  Bay.   These  parties
reached an agreement that appears to have been premised at  least
informally  on the understanding that no one would  have  to  pay
Scammon Bay on its lien.  If we upheld the denial of intervention
on  the  ground  that  Scammon Bay can still  collect  its  lien,
notwithstanding the courts summary finding against Scammon Bay in
absentia, then someone among Suburban, Wave, and Ulak (the record
is  unclear as to whom) would be forced to pay Scammon Bay, or at
least to shoulder the burden of trying not to pay Scammon Bay, on
an  apparently valid lien.  We consider this to be an  idiocratic
          factor suggesting that the whole arrangement should be unwound to
permit the parties (potentially including Scammon Bay) to try the
case  or to reach whatever agreement they can on how to deal with
a  lien  that  cannot  be gotten rid of as  easily  as  initially
expected.
          Since we think the motion for intervention should  have
been  granted  whether or not the courts finding  had  preclusive
effect,  we  do  not have to decide the findings  enforceability.
The  above states our assessment of each factor in the timeliness
analysis.   The  timing of Scammon Bays motion was understandable
under the circumstances, and the prejudice to the parties and the
court  caused  by  the  delay was only moderate.   Moreover,  the
prejudice that would result from upholding the decision  to  deny
the motion has a severe negative effect on at least somebody:  if
the  finding against Scammon Bay is binding, then it has  lost  a
chance  to save its lien; if the finding against Scammon  Bay  is
not  binding, then Ulak, Suburban, or Wave would have to pay  the
lien  or defend against it, notwithstanding an agreement possibly
premised on the liens having been eliminated.  Considering  these
factors   in   light   of  the  general  reluctance   to   reject
interventions of right on timeliness grounds, and in light of the
understanding that the timeliness requirement is not a punishment
for the dilatory,24 we think it was an abuse of discretion to deny
the motion to intervene here.
          Finally,  we note that the many cases cited by Suburban
and  Wave are not inconsistent with our decision.  Most of  these
cases  are  completely different from this  case.   For  example,
Suburban cites DAmato v. Deutsche Bank,25 in which a member of  a
class  action tried to intervene to stop a class settlement  that
he  thought left money on the table.  The court upheld a decision
denying  intervention.  The circumstances of a class  action  are
quite different from those presented here since a class member is
represented  by the lead plaintiff, who has fiduciary  duties  to
the  entire class.  By contrast, in this case the parties had  no
duty  to  Scammon Bay and indeed knew Scammon Bays  position  all
along;  they deliberately came to an agreement opposed to Scammon
Bays  interests, without ever attempting to join Scammon Bay,  as
they might easily have done.
          Suburban  also  cites  Hartford  Accident  &  Indemnity
Insurance Co. v. Birdsong,26 which is probably the strongest case
in  Suburbans favor.  In that case, two insurance companies  were
potentially   liable  for  any  judgment  entered   against   the
individual  tortfeasor.27  The plaintiff sued the tortfeasor  and
got a default order, and approximately a year later the insurance
companies  (despite an earlier, unfulfilled promise to  vindicate
their  interest  through a separate declaratory judgment  action)
sought  to  intervene  a few weeks before a  trial  that  was  to
determine the plaintiffs damages.28  The Maryland Court of Special
Appeals suggested in dicta that intervention was untimely.29   In
this case, however, Scammon Bay attempted to intervene before any
order  was entered affecting its interest and any delay  involved
was  a matter of days rather than months or years.  We also  note
that in Weimer v. Ypparila,30 the South Dakota Supreme Court  was
faced  with  somewhat  similar facts  and  allowed  an  insurance
          company to intervene after a judgment prejudicing the insurer was
entered  in  the  insurers absence, even though the  insurer  had
previously been notified that its interests were at risk from the
proceedings.   Without trying to reconcile Weimer with  Birdsong,
we  believe  the  weight  of authority  is  consistent  with  our
decision here.
IV.  CONCLUSION
          The  order denying Scammon Bays motion to intervene  is
REVERSED.  We also VACATE the order dismissing the complaint  and
VACATE  the findings that set damages and allocate fault  to  the
parties and to Scammon Bay.  Any of the parties is free to  argue
on  remand that the terms of the settlement agreement require the
complaint to be dismissed again; this issue has not been  briefed
and our decision should not be read as construing the agreement.
_______________________________
     1     Scammon  Bay  and  American  International  Group  are
represented  by  the same attorneys and have  filed  one  set  of
papers  for this appeal.  We will often refer to both as  Scammon
Bay.

     2    AS 09.17.080 lays out Alaskas comparative fault scheme.
Subsection  .080(a)  requires the  court  or  the  jury  to  make
findings  allocating  fault to all parties  responsible  for  the
damages  (with  some exceptions).  Subsection .080(c)  says  that
each partys liability is based on its percentage of fault:

               The  court shall determine the award  of
          damages  to each claimant in accordance  with
          the  findings and enter judgment against each
          party liable.  The court also shall determine
          and   state  in  the  judgment  each   partys
          equitable  share  of the obligation  to  each
          claimant  in  accordance with the  respective
          percentages of fault as determined under  (a)
          of this section.  Except as provided under AS
          23.30.015(g), an assessment of  a  percentage
          of  fault against a person who is not a party
          may  only be used as a measure for accurately
          determining  the percentages of  fault  of  a
          named  party.  Assessment of a percentage  of
          fault  against a person who is  not  a  party
          does   not  subject  that  person  to   civil
          liability in that action and may not be  used
          as  evidence  of civil liability  in  another
          action.
          
     3    AS 23.30.015(g) provides:

               If   the   employee  or  the   employees
          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 employers equitable  share  of
          damages assessed under AS 09.17.080(c).
          
     4     THE  CLERK: Mr. Johansen is calling.  THE  COURT:  All
right.  Well, were not going to deal with him right now.  If  the
court  ever took the call from Scammon Bay, it did not happen  on
the record.

     5     See  Graham  v.  City of Anchorage, 364  P.2d  57,  59
(Alaska  1961).   Scammon Bay has argued that  the  findings  are
unenforceable against it because they violate the due process and
equal  protection clauses of the state and federal constitutions,
contravene the exclusivity provisions of AS 23.30.055,  and  fail
to  reflect  an independent determination by the court.   Scammon
Bay has also argued that since Ulak previously opposed allocating
any fault to Scammon Bay, he should be estopped from agreeing  to
the settlement that serves as the basis of the findings.

     6    Civil Rule 24(a) provides:

               Upon timely application anyone shall  be
          permitted to intervene in an action when  the
          applicant claims an interest relating to  the
          property or transaction which is the  subject
          of   the  action  and  the  applicant  is  so
          situated  that the disposition of the  action
          may  as  a practical matter impair or  impede
          the   applicants  ability  to  protect   that
          interest,  unless the applicants interest  is
          adequately represented by existing parties.
          
Civil Rule 24(b) also requires a timely application.

     7     Alaskans for a Common Language, Inc. v. Kritz, 3  P.3d
906, 912 (Alaska 2000).

     8     Wichman  v.  Benner, 948 P.2d 484, 488  (Alaska  1997)
(quoting  7C  Charles Alan Wright, Arthur R. Miller  &  Mary  Kay
Kane, Federal Practice and Procedure  1916 (1986)).

     9     Banco  Popular de Puerto Rico v. Greenblatt, 964  F.2d
1227, 1231 (1st Cir. 1992); see also DAmato v. Deutsche Bank, 236
F.3d 78, 84 (2d Cir. 2001) (similar).

     10    7C Federal Practice and Procedure, supra note 8,  1916.

     11    Id.

     12    Wichman, 948 P.2d at 488.

     13     Since  we  conclude as a result  of  our  four-factor
analysis that Scammon Bays motion should not have been denied, we
do not address Scammon Bays argument that the appellees should be
estopped  from opposing Scammon Bays motion to intervene  because
Ulak  had  invited Scammon Bay to participate at the  January  29
hearing.

     14    Banco Popular, 964 F.2d at 1231.

     15    The quoted language is contained in AS 23.30.015(g).

     16    Id.

     17    948 P.2d at 489.

     18     See  Mundt v. Northwest Explorations, Inc., 947  P.2d
827,  830 (Alaska 1997) (motion to intervene was timely; although
claimant was passive throughout much of the litigation, she acted
promptly  to  intervene once the superior court issued  an  order
that  injured  her  rights  more  broadly  than  she  could  have
previously anticipated).

     19     Cf. United States v. City of Chicago, 870 F.2d  1256,
1263  (7th Cir. 1989) (white police sergeants motion to intervene
to  oppose Title VII consent decree was timely, where motion  was
filed  six weeks after duty to intervene arose).  City of Chicago
involved  a  somewhat more complex case than this  one,  and  the
would-be  intervenor  was more of a stranger  to  the  case  than
Scammon  Bay was here (which made a six-week delay somewhat  more
justifiable).  So City of Chicago is not directly on  point,  but
it  does help persuade us that the twelve-day delay in this  case
was not significant.

     20     [T]he relevant issue is not how much prejudice  would
result  from allowing intervention, but rather how much prejudice
would  result  from the would-be intervenors failure  to  request
intervention  as  soon as he knew or should  have  known  of  his
interest in the case.  Stallworth v. Monsanto Co., 558 F.2d  257,
267 (5th Cir. 1977).

     21     Cf.  Brown v. Cook Inlet Region, Inc., 569 P.2d 1321,
1323 n.7 (Alaska 1977) (where corporation lost proxy fight in the
trial court and decided not appeal, individual board members  who
favored  appealing  could intervene after judgment  to  prosecute
appeal,  given absence of any prejudice flowing from  failure  to
intervene earlier).

     22    Banco Popular, 964 F.2d at 1232.

     23     See, e.g., Red Top Mining, Inc. v. Anthony, 983  P.2d
743,  746  (Alaska  1999) (intervention was  properly  denied  as
untimely;  there was no prejudice because trial court  stated  on
the  record  that  the proceedings should not be  interpreted  to
injure would-be intervenors rights).

     24    7C Federal Practice and Procedure, supra note 8,  1916.

     25    236 F.3d 78 (2d Cir. 2001).

     26     553 A.2d 251 (Md. Spec. App. 1989), cert. denied, 559
A.2d 790 (Md. 1989).

     27    Id. at 252-54.

     28    Id. at 254.

     29     Id. at 255.  The opinion in this case merely confirms
that a prior, interlocutory appeal in the same case was correctly
decided  by  the same court.  In both cases, the court  seems  to
refrain  from relying on untimeliness alone, since it was unclear
whether  the  trial  court had relied on this ground.  The  prior
decision  is  Hartford Ins. Co. v. Birdsong, 519  A.2d  219  (Md.
Spec. App. 1987).

     30    504 N.W.2d 333 (S.D. 1993).