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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Donnell v. Johnson (06/05/2009) sp-6378

O'Donnell v. Johnson (06/05/2009) sp-6378

     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

SERENA L. ODONNELL, )
) Supreme Court No. S- 12938
Appellant, )
) Superior Court No.
v. ) 3AN-04-12557 CI
)
IRIS I. JOHNSON, JOHN F. )
JOHNSON, and JANE DOE, ) O P I N I O N
)
Appellees. ) No. 6378 - June 5, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances: Brett von Gemmingen, Law Offices
          of  Brett von Gemmingen, LLC, Anchorage,  for
          Appellant.   Barry J. Kell,  Call,  Hanson  &
          Kell, P.C., Anchorage, for Appellees Iris  I.
          Johnson and John F. Johnson.

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

          CARPENETI, Justice.
I.   INTRODUCTION
          I.   The plaintiffs insurer paid her medical bills, thus
acquiring  a subrogation interest against the defendant  and  the
defendants   insurer.   The  plaintiffs  insurer   informed   the
plaintiffs attorney that it would recover its subrogated  medical
payments  directly  from the defendants  insurer.   The  eventual
settlement  in  the suit between the plaintiff and the  defendant
provided  that,  in  addition to payment to  the  plaintiff,  the
defendants  insurer  would satisfy the subrogated  medical  claim
directly  with  the plaintiffs insurer.  The plaintiffs  attorney
nonetheless sought a portion of the subrogated medical payment as
fees  under  the  common fund doctrine, but  the  superior  court
refused.   Because our settled case law  controls this  case  and
has  not  been altered by later case law, and because  the  plain
language  of  the  settlement  offer  did  not  contemplate  that
defendants would pay any part of the subrogated claim directly to
plaintiff,  we  affirm  the  superior  courts  exclusion  of  the
subrogation  payment from the judgment entered and  the  superior
courts  determination  that  the  defendant  owes  no  additional
attorneys fees.  On the issue of post-judgment interest, we  also
affirm  the decision of the superior court because the  defendant
repeatedly attempted to pay the plaintiff.
II.  FACTS AND PROCEEDINGS
               In November 2002 Serena ODonnell, insured by State
Farm, was injured in an auto accident caused by Iris Johnson, who
was  insured  by Allstate.  After the accident, State  Farm  paid
ODonnells  medical  bills, totaling $14,047,  under  the  medical
payments  coverage  portion of her policy,  thereby  obtaining  a
subrogated claim against the other driver and Allstate.  In April
2003 State Farm sent a letter to ODonnells attorney informing him
that  it  would  pursue  its subrogated  interest  directly  with
Allstate,  and  requesting  that he  not  incur  any  expense  or
attorneys  time  on behalf of collection of State  Farms  medical
payment  lien.   In  February 2004 State Farm sent  a  letter  to
Allstate  asserting a subrogation claim for the  medical  payment
lien.
          In  July 2007 the Johnsons made an offer of judgment to
ODonnell.  The terms of the offer were that the Johnsons would
          allow  entry of judgment for plaintiff SERENA
          ODONNELL  in  this  action  for  the  sum  of
          SIXTEEN THOUSAND DOLLARS ($16,000) plus Civil
          Rule  79  costs,  prejudgment  interest,  and
          schedule[] Rule 82 (b)(1) attorneys fees.  In
          addition,  Allstate will  satisfy  the  State
          Farm   Insurance   Company   lien/subrogation
          interest ($14,046.80) directly to State  Farm
          Insurance Company.
          ODonnell  accepted the offer ten days  later.   On  the
same  day, she filed a proposed final judgment with the  superior
court.   That  proposed judgment added the State Farm subrogation
amount  to  the  $16,000 to be paid to ODonnell to  result  in  a
$30,047  principal  amount.   The  superior  court  entered  this
proposed  judgment  as  the final judgment  on  August  1,  2007,
omitting attorneys fees and costs from the total.
          On  August  29,  2007,  the Johnsons  objected  to  the
proposed  final  judgment on the grounds that  the  judgment  was
contrary  to Alaska law and the plain language of the  agreement.
ODonnell  responded that the objection was untimely, having  been
due  within ten days of the entry of judgment in accordance  with
Alaska Rules of Civil Procedure 59(f) and 58.1(c)(3).  In October
2007  the  court  determined that it had  erred  in  signing  the
previous final judgment because of the omission of costs and fees
and  because  the base figure for calculation of  attorneys  fees
should  not  have  included the satisfaction  of  the  subrogated
medical payment.  The court vacated the judgment, and granted the
Johnsons  Motion  for Relief of Judgment, calculating  the  fees,
costs,  and  interest  on  the basis of the  $16,000  offered  to
ODonnell in the original offer for judgment.
          ODonnell  then moved to join Allstate and  State  Farm,
claiming  that State Farm was obligated to make an appearance  in
the  case  if  it  was the real party in interest  regarding  the
medical  payment claim, and that Allstate also should be  joined,
because  Allstates offer to pay State Farm was an essential  part
of  the  judgment. ODonnell claimed these joinders were necessary
to  protect ODonnell against later claims for reimbursement  from
State   Farm  from  the  judgment  paid  to  her  and  to  ensure
enforcement of all of the terms of the Johnsons offer of judgment
to  ODonnell.  The Johnsons opposed the motion on the ground that
the State Farm claim was never an element of ODonnells damages in
her  suit against the Johnsons under this courts rule in  Ruggles
v.  Grow1  that  a subrogated claim belongs to the  insurer,  who
cannot  be  required to assert its claim as part of its  insureds
claim against the tortfeasor.  Further, the Johnsons argued  that
ODonnell  was  aware at the time the agreement  was  signed  that
Allstate was not a party to the agreement.  The court denied  the
motion to join the insurance companies and entered final judgment
in November 2007.
          Several  additional  post-judgment  motions  were  then
litigated.  These motions primarily concerned ODonnells attorneys
refusal   to  accept  payment  from  Allstate  of  the   judgment
calculated  in  October  and refusal to sign  a  satisfaction  of
judgment, as well as the Johnsons attempts to obtain the  release
from  the court registry of funds seized from their personal bank
account  by  ODonnell after the initial incorrect judgment.   For
the  first time in late November, ODonnells attorney notified the
Johnsons  by letter of his belief that they should pay  one-third
of  the  State  Farm medical payment subrogation amount  to  him,
although the letter also acknowledged that at that time the  full
claim  had  been paid directly to State Farm.  At  a  hearing  in
January  2008, ODonnell argued that this courts ruling in  Sidney
v.  Allstate,2 handed down that month, supported his  claim  that
Allstate should pay him one-third of the sum it had already  paid
to  State  Farm.  The superior court asked for briefing  on  that
issue.
          The  Johnsons argued to the superior court that  Sidney
affirmed the Ruggles rule.  Therefore, Allstate did not  owe  any
additional  money on top of the settlement amounts already  paid,
and any claim for attorneys fees from the common fund should have
been  made  against  ODonnells  insurer  under  the  common  fund
doctrine. ODonnell replied that the money in the registry  should
simply  be released to her.  This money was the Johnsons personal
money seized immediately after the initial judgment of $38,241 in
August  2007,  which  the Johnsons had been  attempting  to  have
released  from the court registry since November 2007.   ODonnell
also  quoted  the  Johnsons  counsels statement  at  the  January
hearing  that,  assuming common fund moneys were  owed,  Allstate
would be liable for them rather than the Johnsons.
          The superior court issued a final order on these issues
          in February 2008.  The court did not require the signing of a
satisfaction of judgment, but ruled for the Johnsons on all other
issues,  ordering  that  (1)   the  Johnsons  personal  funds  be
released  to  them, (2) ODonnell accept the check  from  Allstate
representing the corrected judgment amount determined in November
2007,  (3)  ODonnell was not entitled to attorneys  fees  on  the
State  Farm medical payments claim, and (4) if the Alaska Supreme
Court  reverses  this  Court on the medical lien  attorneys  fees
issue, then the amount owed to any Plaintiff . . . shall be  paid
by Allstate and not Iris Johnson or John Johnson.
          ODonnell  appeals,  raising three  issues:  First,  she
argues  that  the final judgment should have included  the  State
Farm  lien  amount,  either because the offer  should  have  been
interpreted to include that amount or because otherwise she would
have  been  unable to enforce Allstates promise  to  satisfy  the
State  Farm  lien.   Second,  she claims  that  the  common  fund
doctrine  mandates payment of attorneys fees on  the  State  Farm
lien.   Finally,  she argues that post-judgment  interest  should
have  been  awarded  until  the date that  she  accepted  payment
regardless  of  any fault on her part in the delay  in  accepting
payment.
III. STANDARD OF REVIEW
          I.   Because interpreting the offer of judgment involves contract
interpretation,  we  independently  review  whether   the   final
judgment  should  have  included the subrogated  medical  payment
amount  and  whether Allstate or the Johnsons  should  have  been
required  to  pay any additional fees to ODonnell.3  The  correct
interpretation  of  our  precedents also  calls  for  independent
review,4 as does determining the proper period of time for a post-
judgment interest calculation.5
IV.  DISCUSSION
     A.   It Was Not Error To Exclude the Subrogation Claim from the
          Calculation of Final Judgment.
          
A.              Under Ruggles v. Grow,6 an insurer may explicitly
direct its insured not to pursue its medical subrogation claim as
part  of the insureds lawsuit against the tortfeasor.7  Once  the
insurer has done so, the subrogated claim cannot be part  of  the
insureds  claim.8   State  Farm cited  Ruggles  in  a  letter  to
ODonnells  counsel early in the litigation process  and  directed
him not to expend litigation efforts to recoup State Farms claim.
State  Farm  then  presented its claim directly to  Allstate  and
requested  that  Allstate communicate directly with  State  Farm.
The  offer  of  judgment stated that Allstate would  satisfy  the
medical  subrogation lien directly with State Farm and explicitly
did not include that amount in the judgment that the offer stated
it would allow to be entered against the Johnsons.
          ODonnell  presents two lines of argument for concluding
that  the  judge  erred  in excluding the lien  amount  from  the
judgment.  The first is that the offer was ambiguous and that her
interpretation   was   more   reasonable   than   the    Johnsons
interpretation;  that  is,  that  the  Johnsons  and  the   court
misinterpreted  the  offer.  The second is that  the  promise  to
satisfy  the lien might not be enforceable because it was between
          non-parties to the suit.   Neither argument succeeds.
          1.   The offer of judgment was not ambiguous.
          ODonnell  asserts that the judgment did not  match  the
terms  of the Rule 68 offer of judgment and that she did not  get
the benefit of her bargain.  Although the offer explicitly stated
she would receive judgment in the amount of $16,000, she suggests
there  was room to disregard that unambiguous language and  award
judgment for $16,000 plus the medical lien amount.  This  appears
to be because she assumed that the agreement referred to the fact
that  Allstate would satisfy the lien to State Farm only  because
she  bargained for it.  Therefore she also assumed that the offer
represented  a  common  fund.  We have applied  the  common  fund
doctrine  in  situations  in  which  an  injured  partys  insurer
benefits  from her recovery of a settlement fund from  which  her
insurer   satisfies  its  medical  lien  subrogation.9   ODonnell
appears to argue that the language of this agreement should  have
been interpreted to give rise to such rights.
          But  here  such  an interpretation was unreasonable  in
light  of  Alaska  law,  which allows  an  insurer,  by  explicit
direction,  to  prevent  its insured from pursuing  the  insurers
subrogation  claim.   It was not possible under  Alaska  law  for
ODonnell to regain the right to collect money on behalf of  State
Farm after State Farm told her not to do so in clear and emphatic
terms.10  Further, the offer of judgment could not reasonably  be
interpreted to mean that the Johnsons agreed to have judgment  in
the  amount of the lien entered against them, or that they  would
pay any part of the subrogated medical payment claim to ODonnell.
The  first sentence of the offer explicitly states that  it  will
allow  judgment  to be entered against Johnson for  $16,000  plus
costs  and  attorneys  fees.  The second sentence  provides  that
Allstate,  [i]n  addition, will satisfy State  Farms  subrogation
amount directly to State Farm.
          Further,  since  the  common fund  doctrine,  where  it
applies, applies to benefitted insurers,11 it would not have been
a  reasonable interpretation of the offer that it had any  effect
on  whether ODonnell would be entitled to collect attorneys  fees
from  Allstate or the Johnsons beyond what was stated  explicitly
in  the offer.  The offer of judgment is unambiguous with respect
to   the  obligations  the  Johnsons  agreed  to  undertake,  and
ODonnells interpretation is unreasonable.
          2.   No enforceability problems existed such that joinder of the
               insurance companies was required.
               
          1.   ODonnell further argues that unless the trial court joined
State  Farm  and  Allstate as parties, or  made  payment  of  the
subrogation  lien  part  of the judgment  against  the  Johnsons,
Allstates  promise  to pay the lien would be  unenforeable.   She
further  argues that since the trial court denied her motions  to
join  the  insurance  companies,12 the only way  to  enforce  her
bargain with the Johnsons was to include the lien payment in  the
judgment.  But she had no obligation to enforce the agreement  as
to  Allstates  payment  to State Farm:  State  Farm  had  already
notified  her  that it would be pursuing the  claim  on  its  own
behalf.  Further, under our ruling in Rice v. Denley,13 where two
          parties explicitly state that their settlement does not include
the  injured  partys  insurers subrogation  claim,  that  insurer
cannot   collect  its  claim  from  the  settlement.14   ODonnell
therefore  had  no  reasonable concern that if Allstate  did  not
satisfy  State Farms subrogation claim directly with State  Farm,
that  State  Farm would then return to collect it  from  ODonnell
instead.  The Johnsons statement in the offer that Allstate would
satisfy  the medical payment claim directly with State Farm  made
it  clear that the judgment for ODonnell against the Johnsons did
not include that amount.
          Ruggles   held  that  where  an  insurer   acquires   a
subrogated interest by payment of its insureds medical  expenses,
that subrogated claim belongs to the insurer.15 The plain language
of the agreement and State Farms express direction to its insured
not to pursue its medical lien claim place this situation clearly
under  Ruggles.   ODonnells claim did not and could  not  include
State Farms subrogated interest.
     B.   It  Was  Not Error To Conclude that the Medical Payment
          Subrogation Satisfaction Was Not  Common Fund Money for Which
          ODonnells Attorney Is Owed Fees.
          ODonnell  argues that we should apply the  common  fund
doctrine  to  this case without regard to the insurance  companys
directions to her not to pursue the case.  First, she argues that
under  Sidney 16 we have already invoked the common fund doctrine
without  regard to insurance company authorization.  Second,  she
argues  that  we  should  overrule  Ruggles  because  of  another
equitable  doctrine, the made-whole doctrine.   We  address  each
argument in turn.
          1.   Sidneys holding regarding the requirement of insurer
               authorization in the application of the common-fund doctrine does
               not apply to this case.
          1.   Under the common fund doctrine generally, a litigant or
lawyer  who  recovers a common fund for the  benefit  of  persons
other  than  himself or his client is entitled  to  a  reasonable
attorneys  fee  from  the fund as a whole.17   In  the  insurance
context, where an injured plaintiff confers a benefit on  his  or
her  insurer by securing recovery for both, the insurer is liable
for pro rata fees and costs based on what it recovers as a result
of  plaintiffs  efforts.  For example, in  Alaska  Native  Tribal
Health   Consortium  v.  Settlement  Funds18  (ANTHC),   patients
recovered from third party tortfeasors funds that were ultimately
used  to  used  to  satisfy  the Consortiums  medical  liens  for
treatment of the patients.19  Under unjust enrichment principles,
we   determined  that  it  would  be  inequitable  to  allow  the
Consortium to retain the benefit of having its lien satisfied and
not  pay its share of fees and costs for the recovery.  We relied
on this rationale for the common fund doctrine:
          In  hospital lien cases, the hospitals  right
          to  assert a lien, and its right to  recovery
          based on that lien, depend by statute on  the
          obtaining  of a judgment or settlement.   The
          proceeds   of  that  judgment  or  settlement
          operate as a fund, and, without the fund, the
          hospital  has nothing upon which to assert  a
          lien . . . .[20]
          The  common fund doctrine is applied whenever  a  party
obtains  well-defined  benefits for other parties.21   In  ANTHC,
without  the judgment obtained by the patients there  would  have
been nothing on which to enforce the lien, and the Consortium was
ready  and  willing to take the benefits of the  common  fund  so
obtained.22   Thus, the elements of a common fund recovery  under
Alaska  law  are (1) the efforts of one party (2) result  in  the
creation  of  a  fund  benefitting  a  third  party  (3)  who  is
benefitted in a clear and well-defined manner, and (4) the  third
party is ready and willing to accept the benefits so obtained.
           In  Sidney,  we  addressed the issue  of  an  insurers
readiness and willingness to accept the benefits of its  insureds
efforts where it accepted those benefits without objection.23  In
that  case,  Sidney, the insured driver, settled with the  driver
who  injured her for the limits of the at-fault drivers insurance
policy,  exhausting  that policy and thereby  triggering  Sidneys
rights  to  collect  underinsured  motorist  insurance  from  her
insurer,  Allstate.24    Sidneys  settlement  with  the  at-fault
drivers  insurance company had designated $25,000 to be  paid  to
her  and $25,000 to be paid to her insurer to satisfy its medical
payment subrogation lien.25  Regarding Sidneys right to have  her
insurer  pay  a pro rata share of the attorneys fees expended  to
obtain  this  settlement, we held that Sidneys  pursuit  of  that
claim  conferred a direct benefit on her insurer.26  We  reasoned
that  since $25,000 of the settlement satisfied Allstates medical
subrogation lien, and Allstate neither expended effort to collect
that  $25,000 nor objected to Sidneys efforts to obtain  it,  but
rather  retained  the  benefit, the equitable  rationale  of  the
common fund doctrine should apply.27  Therefore, in that case, we
ruled  that Allstate owed a pro rata share of the attorneys  fees
and   costs  expended  in  settling  with  the  at-fault  drivers
insurance company.28
          Contrary  to  ODonnells assertion,  the  discussion  of
Ruggles  in the Sidney opinion confirms the essential holding  of
Ruggles.29  We  noted in Sidney that Ruggles allowed  an  insured
injured  party  to  include the subrogated  claim  in  its  claim
against the tortfeasor if the insurer does not object.30  This is
consistent with basic unjust enrichment principles, since a party
who  passively  accepts  a benefit can be  held  responsible  for
reimbursing  the  person who conferred the  benefit  under  those
principles.31
          Sidney  does  not  render  the  insurers  authorization
irrelevant, as ODonnell argues.  If the insurer actively requests
that the plaintiff not pursue her subrogation claim,  there is no
common  fund because the insurer will not be collecting the  lien
from the plaintiffs recovery fund but will seek its own recovery.
Conversely,  the plaintiff may not collect the subrogated  amount
or attorneys fees on that amount, whether from her own insurer or
from  the  defendant. In Sidney, the insurer  did  not  take  any
action,  but  passively accepted the conferred  benefit.32   Most
jurisdictions agree that if an insurer chooses not to rely on the
services of plaintiffs counsel and provides notice of this, there
is  no  benefit conferred and no unjust enrichment, and thus  the
          common fund rule does not apply.33
          2.   The made-whole doctrine does not apply to this case.
          ODonnell  also argues that Sidney implicitly recognized
equitable  doctrines such as the made-whole doctrine, or,  if  it
did  not,  we  should now apply that doctrine to  this  case  and
overrule  Ruggles.  We disagree that the made-whole doctrine  has
any bearing on this case or was at all relevant to Sidney.
         The  made-whole doctrine recognizes that  there  may  be
situations  in  which a defendants policy would be exhausted  and
the  injured  party would be left without being fully compensated
for  her  own loss if her insurer collected the subrogation  lien
before  she  was herself compensated for her separate  damages.34
This issue is not before the court now because ODonnell was fully
compensated.  The made-whole doctrine was also not  an  issue  in
Sidney because of her under-insured motorist protection.35
          3.   The promise that Allstate would pay common fund money is
               irrelevant.
          1.   Finally, ODonnell makes the claim that the Johnsons attorney
repeatedly  promised the trial court that any common fund  monies
owed  to  Ms.  ODonnell would be paid by Allstate, implying  that
therefore  Allstate  has  incurred a  liability.   But  Allstates
attorney merely stated that, if any common fund money were  owed,
Allstate would pay it rather than the Johnsons.  Because we  have
held  that  no  common  fund  money  is  owed,  the  promise   is
inapplicable.
     C.   The  Superior Court Did Not Err in Ruling that ODonnell
          Was   Not  Entitled  to  Post-judgment  Interest  After
          November 23, 2007.
          
          Final  judgment in this matter was entered on  November
11, 2007.  Allstate mailed ODonnell a check for the amount of the
judgment, which included post-judgment interest through  November
23,  2007.   That  check  was received by ODonnells  attorney  on
November  20,  2007.   ODonnells attorney notified  the  Johnsons
counsel  by letter on November 21, 2007 that he had received  the
check  but  that  the  Johnsons owed  another  $296  because  the
November 20 check and the Johnsons personal funds seized and held
by  the  court registry did not cover the one-third of the  State
Farm  satisfaction to which ODonnell now claimed to be  entitled.
On  December 14, 2007, ODonnells attorney  mailed the check  back
to  Allstate.   The  Johnsons prevailed on  a  motion  to  compel
ODonnell to accept the check on February 12, 2008.
          Under  Farnsworth  v. Steiner,36 an  appellant  may  be
entitled to post-judgment interest where she was not paid  during
the  pendency of her appeal regardless of responsibility for that
delay.37   However,  payment to ODonnell was  not  delayed  here.
ODonnell   had  the check in her possession for twenty-five  days
and  then chose to return it; the Johnsons attorney then  had  to
expend additional resources to get her to accept it.  We held  in
Providence  Insurance  Co. of Alaska v. Firemans  Fund  Insurance
Cos.38 that the common law definition of when payment is tendered
should  guide  the  determination of when post-judgment  interest
accrual  is  tolled.39  At common law, tender required  that  the
thing actually be produced and made available for acceptance  and
          appropriation by the person to whom it is offered.40  Here, the
Johnsons did tender payment to ODonnell on November 20, 2007, and
no post-judgment interest should accrue after that payment.
V.   CONCLUSION
          Because no common fund money or attorneys fees are owed
ODonnell  under  the plain language of the offer of  judgment  or
under  Ruggles  v. Grow, and because the Johnsons  in  fact  paid
ODonnell  before  the  deadline set in  the  final  judgment  and
therefore  owed no additional post-judgment interest,  we  AFFIRM
the decision of the superior court in all respects.
_______________________________
     1    984 P.2d 509 (Alaska 1999).

     2     187  P.3d 443 (Alaska 2008) (holding that underinsured
motorists carrier was liable for pro rata share of attorneys fees
and   costs  for  insureds  efforts  to  obtain  settlement  with
liability insurer).

     3    See Pagenkopf v. Chatham Elec., Inc., 165 P.3d 634, 638
(Alaska 2007).

     4    Sidney, 187 P.3d at 448.

     5    Pagenkopf, 165 P.3d at 644.

     6    984 P.2d 509.

     7     Id.  at  512 (Once [a request not to present  insurers
claim]  was  made  [plaintiff] lost  the  right  to  present  the
claim.).

     8    See id.

     9     See,  e.g., Alaska Native Tribal Health Consortium  v.
Settlement Funds Held for or to be Paid on Behalf of E.R. ex rel.
Ridley,  84  P.3d  418,  432  (Alaska 2004)  (applying  equitable
considerations to health care provider lien recovery and  finding
pro  rata  share  of attorneys fees owed because  injured  partys
litigation  benefitted hospital with lien,  hospital  appreciated
benefit,  and it was unjust to allow hospital to benefit  without
paying its share of legal fees and costs).

     10    See Ruggles, 984 P.2d at 512.

     11     Cooper  v. Argonaut, 556 P.2d 525, 527 (Alaska  1976)
(interpreting workers compensation statute in light of  equitable
principles and holding that in order to insure that the employers
compensation carrier is not unjustly enriched at the  expense  of
the  employee,  we read AS 23.30.015(g) to require the  proration
between  the  carrier  and the employee of litigation  costs  and
attorneys  fees  incurred by the employee in  recovering  from  a
third-party tort-feasor.).

     12     Although she listed the denial of her motion to  join
the  insurance  companies in her statement of points  on  appeal,
ODonnell  does  not present any arguments on this  point  in  her
briefs.  We therefore consider this issue abandoned.  See  Kodiak
Elec. Assn, Inc. v. DeLaval Turbine, Inc., 694 P.2d 150, 153  n.4
(Alaska  1984) (holding that issues raised in points  on  appeal,
but  not adequately briefed, are deemed abandoned).  However, the
refusal  to  join  the insurance companies would  likely  not  be
erroneous under the same reasoning used in this section.

     13    944 P.2d 497 (Alaska 1997).

     14    Id. at 500 (holding that meeting of minds was required
as  to whether settled claim included victims insurers subrogated
claim  and noting that if it was clear that both parties intended
that  the  settlement  agreement was  only  for  the  nonassigned
portion of Denleys claim there would be no basis for Colonial  to
assert lien rights against the settlement proceeds.).

     15    984 P.2d 509, 512 (Alaska 1999).

     16    187 P.3d 443 (Alaska 2008).

     17     Edwards  v.  Alaska Pulp Corp., 920 P.  2d  751,  754
(Alaska  1996) (quoting Boeing v. Van Gemert, 444 U.S.  472,  478
(1980)).

     18    84 P.3d 418 (Alaska 2004).

     19    Id. at 420-22.

     20     Id. at 433 (quoting Martinez v. St. Joseph Healthcare
Sys., 871 P.2d 1363, 1365 (N.M. 1994)).

     21    Id.

     22    Id.

     23    187 P.3d 443, 453-54 (Alaska 2008).

     24    Id. at 446.

     25    Id.

     26    Id. at 454.

     27    Id.

     28    Id.

     29    Id.

     30    Id. (quoting Ruggles v. Grow, 984 P.2d 509, 512 (Alaska
1999) (emphasis added)).

     31      See, e.g., Alaska Native Tribal Health Consortium v.
Settlement Funds Held for or to be Paid on Behalf of E.R. ex rel.
Ridley,  84  P. 3d 418, 432 (Alaska 2004) (holding  that  passive
beneficiaries  required to bear fair share of costs).   Appellees
complain  that the court in Sidney appears to have  assumed  that
Sidney had authority to collect but that seems to miss one of the
main  points  of the common fund doctrine, which is that  express
authorization is not required if the party charged  with  sharing
the fees passively accepted a benefit.

     32    187 P.3d at 453-54.

     33    See, e.g., Richter, Wembley & Erickson, P.S. v. Honore,
628  P.2d  1311, 1313-14 (Wash. App. 1980); Travelers Ins.Co.  v.
Williams, 541 S.W.2d 587, 590 (Tenn. 1976).

     34    Lee R. Russ, 16 Couch on Insurance  223:134 (2008).

     35    See 187 P.3d 443, 445-46 (Alaska 2008).

     36    638 P.2d 181 (Alaska 1981).

     37    Id. at 185.

     38    778 P.2d 200 (Alaska 1989).

     39    Id.

     40    Id. at 204.

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