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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mat-Susitna Regional Medical Center, LLC v. Burkhead (2/19/2010) sp-6458
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
| MAT-SU REGIONAL MEDICAL | ) |
| CENTER, LLC, | ) Supreme Court No. S- 13010 |
| ) | |
| Appellant, | ) Superior Court No. 3PA-07-1660 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| BRANDI M. BURKHEAD and | ) No. 6458 February 19, 2010 |
| MEG J. VOSS, | ) |
| ) | |
| Appellees. | ) |
| ) | |
)
MAT-SU REGIONAL MEDICAL ) Supreme Court No. S-13326
CENTER, LLC, )
) Superior Court Case No. 3PA-07-
2144 CI
Appellant, )
)
v. )
)
MEG J. VOSS, )
)
Appellee. )
)
Appeal in File No. S-13010 from the Superior
Court of the State of Alaska, Third Judicial
District, Palmer, Vanessa White, Judge.
Appeal in File No. S-13326 from the Superior
Court of the State of Alaska, Third Judicial
District, Palmer, Kari Kristiansen, Judge.
Appearances: Peter J. Aschenbrenner,
Aschenbrenner Law Offices, Inc., Fairbanks,
for Appellant. Frank J. Schlehofer, Azar &
Schlehofer, P.C., Anchorage, for Appellee
Brandi M. Burkhead. Kimberlee A. Colbo,
Hughes Pfiffner Gorski Seedorf & Odsen, LLC,
for Appellee Meg J. Voss.
Before: Carpeneti, Chief Justice, Eastaugh,
Fabe, Winfree, and Christen, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
These two appeals, consolidated for decision, raise
common questions about an attempt by Mat-Su Regional Medical
Center (Mat-Su) to assert a direct claim against a motor vehicle
driver who allegedly injured Brandi Burkhead, to whom Mat-Su then
provided medical services. At Mat-Sus request, Burkhead assigned
to Mat-Su all her rights and claims against Meg Voss, the alleged
tortfeasor. In S-13010 we consider whether it was error to deny
Mat-Sus motion to intervene in Burkheads personal injury lawsuit
against Voss. And in S-13326 we consider whether Mat-Su may
bring a direct action, based on Burkheads assignment of her
personal injury claim, against Voss. We conclude that it may
not, and that Mat-Sus only remedy here is provided by the medical
lien statute, AS 34.35.475. We therefore affirm Superior Court
Judge Vanessa Whites order denying Mat-Sus motion to intervene in
Burkheads personal injury lawsuit against Voss. We likewise
affirm Superior Court Judge Kari Kristiansens judgment dismissing
Mat-Sus direct personal injury claim against Voss.
II. FACTS AND PROCEEDINGS
A. The Accident
A. Brandi Burkhead was injured in a vehicular collision near
Palmer in July 2007. Burkhead was admitted to Mat-Su Regional
Medical Center, where she received emergency and other medical
services. Mat-Su alleges that the services had a value of
$301,863.59.
During her treatment at Mat-Su, Burkhead allegedly
signed two Consent: Authorization, Assignment, and Acknowledgment
forms in which she ostensibly assigned to Mat-Su all rights to or
claims for payment against third parties for the reasonable value
of medical services rendered.1 Mat-Su also recorded a health
care lien against Burkhead for $301,863.59 under AS 34.35.450-
.482.
B. Mat-Sus Motion To Intervene in Burkheads Suit Against Voss
In August 2007 Burkhead began a personal injury lawsuit
against Meg Voss, the driver of the other vehicle involved in the
collision.
In November of that year Mat-Su moved to intervene in
Burkheads lawsuit against Voss and to obtain co-plaintiff status.2
Mat-Su claimed its status as assignee, not as a lienor, was the
sole legal basis for intervening. Mat-Su argued that Burkheads
assignment to Mat-Su of her right to recover medical expenses
reshaped real party in interest status of her creditor . . . for
the purpose of prosecuting a claim for recovery of those expenses
as damages. Mat-Su contended that it could intervene both
permissively and as a matter of right.3
Both Burkhead and Voss objected to Mat-Sus motion to
intervene. Superior Court Judge Vanessa White denied Mat-Sus
motion in January 2008.
C. Mat-Sus Direct Action Against Voss
In December 2007 Mat-Su brought a separate lawsuit
against Voss to recover the reasonable value of the medical
services Mat-Su provided to Burkhead. Voss moved for summary
judgment, arguing in part that Alaskas lien statute, AS
34.35.475, provided Mat-Sus exclusive remedy against Voss. Voss
also contended that the alleged assignment was unenforceable as a
matter of law because Burkhead was incompetent and under duress
when she agreed to the assignment.
Mat-Su moved for an Alaska Civil Rule 56(f) continuance
that would have allowed Mat-Su an extra sixty days to file a
complete opposition to Vosss summary judgment motion. Mat-Su
argued that it needed the additional time to conduct depositions
and further discovery to develop its position that the Consent:
Assignment forms are valid and enforceable against Ms. Voss.
Voss opposed Mat-Sus continuance motion, arguing that
determining the validity of the assignments was utterly
irrelevant to the primary issue: whether, as a matter of law, the
lien enforcement procedure is Mat-Sus exclusive remedy. Mat-Su
replied that the validity of the assignment was relevant because
Voss had claimed in her summary judgment motion that the
assignment was unenforceable.
Superior Court Judge Kari Kristiansen held a hearing on
Mat-Sus Rule 56(f) continuance motion in May 2008. Vosss
attorney stated during the hearing that, for the purposes of
deciding whether AS 34.35.475(b) provided Mat-Sus exclusive
remedy, the court could assume for argument sake that the
assignment that was signed by Ms. Burkhead was valid. The court
asked Mat-Sus attorney whether further discovery was necessary to
respond to Vosss exclusive remedy argument. Mat-Sus attorney
responded: No, I dont need further discovery per se to respond to
the exclusive remedy argument.
The court then denied Mat-Sus motion for a continuance
and ordered Mat-Su to respond to Vosss summary judgment motion
within ten days. The court stated that it would grant Mat-Sus
request to depose Burkhead but questioned the relevance of a
deposition to Vosss motion for summary judgment on the exclusive
remedy issue.
Mat-Su filed a timely opposition to Vosss summary
judgment motion. The court held a hearing on Vosss motion in
August 2008. The court ultimately agreed with Voss that the lien
enforcement procedure found in AS 34.35.475(b) was Mat-Sus
exclusive remedy, and granted Vosss motion for summary judgment
on August 12, 2008.
The next day, Mat-Su filed a motion for summary
judgment on the affirmative defenses Voss had raised in her
answer. Voss filed a notice stating that she would not file an
opposition because Mat-Sus summary judgment motion was moot.
Judge Kristiansen entered final judgment for Voss on October 6,
2008, without ruling on Mat-Sus summary judgment motion.
D. Mat-Sus Appeals
A. In S-13010 Mat-Su appeals Judge Whites decision denying Mat-
Sus intervention motion in Burkheads personal injury suit against
Voss. In S-13326 Mat-Su appeals Judge Kristiansens decision
granting summary judgment against Mat-Su in its direct action
against Voss. We heard oral argument in Mat-Sus appeal of Judge
Whites decision in February 2009. After oral argument Mat-Su
moved to consolidate that appeal with its then-pending appeal of
Judge Kristiansens decision. We conditionally granted Mat-Sus
motion for the purposes of considering and resolving the two
appeals, and heard oral argument in the appeal of Judge
Kristiansens decision in September 2009.
III. STANDARD OF REVIEW
A. Denial of Intervention in Burkheads Action Against Voss
We apply our independent judgment in determining
whether a superior courts denial of a motion to intervene as a
matter of right was in error if timeliness is not at issue, the
facts relevant to intervention are undisputed, and only questions
of law are posed.4
We review a superior courts denial of a motion for
permissive intervention for abuse of discretion.5
B. Grant of Summary Judgment and Entry of Final Order in Mat-
Sus Action Against Voss
We review grants of summary judgment de novo, drawing
all factual inferences in favor of, and viewing the facts in the
light most favorable to the non-prevailing party.6 We affirm
grants of summary judgment if there are no genuine issues of
material fact and the prevailing party was entitled to judgment
as a matter of law.7
We review for abuse of discretion a decision to deny a
continuance requested under Alaska Civil Rule 56(f).8
IV. DISCUSSION
A. Whether It Was Error To Grant Summary Judgment to Voss and
Enter Final Judgment of Dismissal
Although the denial of Mat-Sus attempt to intervene in
Burkheads suit was appealed and argued first, we discuss the
issues raised by the appeal in Mat-Sus direct action against Voss
first because they dispose of both appeals.
1. Whether the statutory lien procedure was Mat-Sus exclusive
remedy against Voss
Mat-Su argues that Judge Kristiansen erred in
concluding that Mat-Sus exclusive remedy was the statutory lien
procedure set out in AS 34.35.475(b). Mat-Su contends that it
does not need statutory authorization to obtain common law
contract-based assignment rights, but that the relevant statutory
framework nevertheless permits it to proceed directly against
Voss.
According to Mat-Su, the relevant statutory framework
includes a federal bankruptcy statute,9 the Alaska Exemptions
Act,10 the Employee Retirement Income Security Act (ERISA),11
Alaskas treatment of insurance companies subrogation rights,12
state Medicaid law,13 and federal Medicare law.14 It argues that
those bodies of law provide instructive, analogous examples in
which creditors, providers of governmental services, or
possessors of subrogation rights may pursue claims directly
against third-party tortfeasors.
Voss responds that the hospital lien enforcement
procedure set out in AS 34.35.450.482 provides Mat-Sus exclusive
remedy against Voss and that we therefore do not need to consider
the questionably relevant extra-territorial legal authority
discussed at length by Mat-Su. In the appeal arising out of
Burkheads personal injury action against Voss, Burkhead likewise
argues that the statutory lien procedure provides Mat-Sus
exclusive remedy against Voss. Burkhead argues that permitting
Mat-Su to proceed directly against Voss would eviscerate the
careful tripartite balance our legislature established between
the patient/plaintiff, health care provider, and
tortfeasor/insurer.
Per AS 34.35.450(a), a hospital that furnishes service
to a person with a traumatic injury has a lien upon any sum
awarded to the injured person . . . to the extent of the amount
due the hospital.15 The hospital may foreclose or sue to enforce
its lien within one year of filing16 and may also, in certain very
limited situations, bring an action against a third party
responsible for the damages.17 If the responsible third party has
notice of the lien, pays the injured party, and does not pay the
hospital, the hospital has a cause of action against the third
party for 180 days from the date of payment.18
As Mat-Su observes, any exclusivity of this statutory
lien remedy is not self-evident from either the text or the
legislative history of AS 34.35.475. Mat-Su also correctly
observes that the mere existence of statutory lien rights does
not automatically extinguish common law rights or require
explicit statutory permission to acquire additional contract
rights.19
But it is significant that the legislature chose to
create a limited lien remedy rather than a statutory assignment
or subrogation remedy like those it explicitly adopted in other
contexts. In workers compensation cases, for example, an
employees acceptance of an award of compensation acts as a
conditional assignment to the employer of all rights to recover
damages from liable third parties.20 And AS 47.05.070(b) grants
the Department of Health and Social Services subrogation rights
against insurance payments and other recoveries by recipients of
Medicaid benefits.21 The legislature could have adopted a similar
remedy for health care providers but opted instead for the lien
scheme.
Moreover, although we have never expressly held that
assignments of personal injury claims are invalid as a matter of
public policy, we have long recognized a general rule of non-
assignability of claims for personal injury under Alaska law.22
We have identified limited exceptions to this general rule the
validity of the reassignment of a wrongful death claim to the
estate of the decedent, for example23 but we have never
recognized an exception for health care providers.
The absence of exclusive remedy language in the lien
statute is therefore unsurprising. The legislature, in
fashioning the lien remedy in AS 34.35.475, had no reason to
think health care providers in Alaska had any ability to obtain
or enforce personal injury assignments from their patients.
Because it had no reason to think any such remedies were
available or would become available to health care providers in
Alaska, the legislature had no reason to expressly state that the
statutory lien remedy was in lieu of contract-based assignment
remedies or other possible imaginary remedies.
But because the legislature did not explicitly or
implicitly foreclose a health care providers direct claims
against a tortfeasor based on its patients assignment of tort
claims, it is necessary to consider whether such assignments are
valid in Alaska.24
As discussed above, we have long recognized a general
rule of non-assignability of claims for personal injury under
Alaska law.25 The majority of jurisdictions around the country
have similarly declined to recognize the validity of assignments
of tort claims for personal injury,26 although some states do
allow personal injury claims to be assigned.27
Mat-Su argues that Alaska law does not prohibit the
assignment of personal injury claims, and notes that we have
never held such an assignment invalid as against public policy.
Mat-Su also argues that any general rule prohibiting the
assignment of personal injury claims would not apply to it
because it is required to provide emergency medical treatment to
patients under the Emergency Medical Treatment and Active Labor
Act.28 Mat-Su suggests that, as such a provider, it is not a
stranger to its patients personal injury lawsuits for the
purposes of champerty, and it has a greater need than other
health care providers to obtain assignments of personal injury
claims.
Voss argues that such assignments are contrary to law
and unenforceable as a matter of public policy. She also argues
that permitting health care providers to obtain assignments of
personal injury claims from their patients would subject
defendants to multiple lawsuits, in which there would be a
substantial risk of inconsistent results, and would potentially
prevent settlements with tort victims. Burkhead suggests that
permitting such assignments might also harm patients interests in
pursuing personal injury claims.
Nothing Mat-Su argues persuades us that we should
reexamine what we said about such assignments and recognize their
validity. We think the assignment of personal injury claims is
socially problematic given the potential for overreaching when
injured assignees bargain away some or all of their rights under
the equivalent of at least economic, if not physical or mental,
duress.29 Any benefits potentially derived by expanding the
remedies available to mandatory providers of emergency services
would seem to be outweighed by the risk that the routine
collection of such assignments from emergency room patients would
increase the potential for duress and decrease the likelihood of
a fully informed assignment.
The New Mexico Court of Appeals recently confronted the
public policy implications of the assignment of personal injury
claims to health care providers in Quality Chiropractic, PC v.
Farmers Insurance Co. of Arizona.30 Because New Mexico law
provided for the subrogation rights of insurers, the court had to
examine the similarities and differences between health care
providers and insurers. The court observed that, because
insurers have a pre-existing duty to pay, they bear the risk that
the insured will be unable to obtain compensation from the
tortfeasor.31 As the court noted, if there is no recovery from
the third-party tortfeasor after benefits have been paid, the
insurer has no additional recourse to seek reimbursement for the
benefits it paid to the insured.32 In contrast, a health care
provider is entitled to payment in full from the patient.33 The
court also noted that allowing injured tort victims to assign the
proceeds of their personal injury claims could add unnecessary
complications to the settlement of relatively straightforward
cases.34 The court thus [thought] it best to leave to the
legislature the decision as to whether to recognize health care
assignments.35
Given that our legislature has provided an effective,
albeit limited, lien remedy, the social ramifications of allowing
such assignments, and health care providers continued ability to
collect from their own patients as creditors, we think it should
be for the legislature to decide whether to recognize assignments
of patients personal injury claims.
Judge Kristiansen did not err in holding that Mat-Sus
exclusive remedy against Voss was the statutory lien procedure
set out in AS 34.35.475(b).
2. Whether it was error to deny Mat-Sus Rule 56(f) continuance
motion, to dismiss Mat-Sus action without considering the
assignment, or to not consider Mat-Sus motion for summary
judgment
1. Mat-Su also argues that the superior court: (1) abused its
discretion in denying Mat-Sus Alaska Civil Rule 56(f) continuance
motion, because such motions should be liberally granted; (2)
erred in dismissing the contract action without considering the
contract itself; (3) erred by not reject[ing] the conversion of
the motion for summary judgment into a motion to dismiss; and (4)
erred in refusing to consider Mat-Sus motion for summary
judgment, especially after order[ing] the deposition of . . .
Burkhead to be taken.
None of these arguments is availing. Rule 56(f)
permits a court to order a continuance if a party needs
additional time to conduct discovery to oppose a summary judgment
motion.36 Such motions should be freely granted only if certain
conditions are met.37 For instance, the party seeking the
continuance must adequately explain why he or she cannot produce
facts necessary to oppose summary judgment within the original
time frame.38 Mat-Su did not adequately explain what facts would
be necessary to oppose Vosss motion. It also failed to explain
why it could not produce any such facts within the original time
frame. And Mat-Su also conceded that it did not need additional
discovery to respond to Vosss motion.39
The superior court did not abuse its discretion in
declining to consider the terms of any assignment, Mat-Sus own
mooted motion for summary judgment, and a deposition the court
permitted40 after it concluded that there was a controlling legal
principle that rendered any possible factual disputes immaterial.
And it did not err in granting summary judgment after reaching
that conclusion.
B. Whether It Was Error To Deny Mat-Sus Motion for Mandatory
and Permissive Intervention
Mat-Su argues that Judge White erred in denying its
motion to intervene under Civil Rule 24(a) and Civil Rule 24(b).
Mat-Su has relied on its status as an assignee, not its status as
a lienor, as the sole legal basis for intervention.
1. Whether it was error to deny Mat-Sus motion for mandatory
intervention under Civil Rule 24(a)
1. Mat-Su argues that it was entitled to intervene as a matter
of right under Rule 24(a),41 and that the court therefore erred in
denying Mat-Sus motion. Mat-Su contends that it obtained by
contract a right to participate in Burkheads suit and satisfied
the technical requirements for mandatory intervention.
A movant is entitled to intervene as a matter of right
if: (1) the motion is timely; (2) the applicant shows an interest
in the subject matter of the action; (3) the applicant shows that
this interest may be impaired as a consequence of the action; and
(4) the applicant shows that the interest is not adequately
represented by an existing party.42
Mat-Su had no independent cause of action against Voss,
as we held above. It also sought to intervene only as an
assignee. It did not seek to intervene as a lienor, did not
invoke the lien statute, and made no showing that a claim under
that statute was ripe.43 Mat-Su therefore had no legally
cognizable interest for the purposes of intervention,44 and
therefore did not satisfy the second requirement for intervention
as of right. This makes it unnecessary for us to consider in
detail the other requirements for mandatory intervention. We
note, however, that Mat-Su has advanced no plausible reason to
think either that Burkheads attorneys could not adequately
represent any interest of Mat-Sus relevant to tort issues of
liability and damages or that there was any danger Mat-Sus
interests would be prejudiced by its nonparticipation.
Judge White did not err in denying Mat-Sus motion for
intervention under Civil Rule 24(a).
2. Whether it was error to deny Mat-Sus motion for permissive
intervention under Civil Rule 24(b)
Mat-Su also argues that the superior court erred in
denying its motion for permissive intervention under Rule 24(b).
Mat-Su contends that the superior court incorrectly mutated
permissive intervention into stipulated intervention when it
considered Burkheads arguments challenging the validity of the
assignment. It also contends that the court should have
permitted it to intervene because the parties did not assert that
Mat-Sus intervention would cause delay or prejudice.
A court may permit intervention under Rule 24(b)45 upon
timely application when the applicants claim or defense and the
main action have a common question of law or fact.46 A court must
also determine whether intervention would impair the rights of
the original parties by causing undue delay or prejudice.47 But
in cases in which the prospective intervenor raises no new
issues, we have established that the most effective and
expeditious way to participate is by a brief of amicus curiae and
not by intervention.48
There is no basis for thinking that the superior court
abused its discretion in denying Mat-Sus motion for permissive
intervention. The superior court appropriately discussed the
relevant considerations in deciding the issue. In any event, Mat-
Sus exclusive remedy against Voss was provided by the lien
statute, and Mat-Su did not demonstrate that its lien rights had
been violated or that there was any incipient danger they would
be violated. Mat-Sus intervention was unlikely to have raised
new issues pertinent to Burkheads tort claims against Voss, and
Judge White did not abuse her discretion in denying Mat-Sus
motion for permissive intervention.
V. CONCLUSION
For these reasons we AFFIRM Judge Kristiansens judgment
dismissing Mat-Sus direct claim against Voss and Judge Whites
order denying Mat-Sus motion to intervene in Burkheads tort suit
against Voss.
_______________________________
1 Both consent forms contained the same assignment
provision, which stated:
The undersigned patient/authorized person,
having been informed by my treating physician
. . . of the treatment and procedures
considered necessary or desirable, hereby:
. . .
3. ASSIGNS to Valley Hospital all
rights to or claims for payment against
third parties and DIRECTS that payment
from such third parties be made directly
to the Hospital . . . .
Mat-Su contends that these forms only assigned rights to the
extent of the reasonable value of its services. These appeals do
not turn on whether the assignments were actually so limited.
2 Mat-Su had moved to intervene in September 2007 but
withdrew that motion.
3 Alaska Civil Rule 24(a) governs intervention as of
right. Civil Rule 24(b) governs permissive intervention.
4 Harvey v. Cook, 172 P.3d 794, 798 (Alaska 2007) (citing
Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d 906, 912
(Alaska 2000)).
5 Id. (citing State v. Weidner, 684 P.2d 103, 114 (Alaska
1984)).
6 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)
(citing Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska
1984)).
7 Id.
8 Hymes v. Deramus, 119 P.3d 963, 965 (Alaska 2005)
(quoting Kessey v. Frontier Lodge, Inc., 42 P.3d 1060, 1062
(Alaska 2002)).
9 11 U.S.C. 522 (2006).
10 AS 09.38.010.510.
11 29 U.S.C. 10011461 (2006).
12 See Ruggles ex rel. Mayer v. Grow, 984 P.2d 509 (Alaska
1999).
13 AS 47.05.070.
14 42 U.S.C. 1395 (2006).
15 AS 34.35.450 provides in part:
(a) An operator of a hospital in the state,
a licensed special nurse in a hospital in the
state, or a physician who furnishes service
to a person who has a traumatic injury has a
lien upon any sum awarded to the injured
person or the personal representative of the
injured person by judgment or obtained by a
settlement or compromise to the extent of the
amount due the hospital, nurse, or physician
for the reasonable value of the service
furnished before the date of judgment,
settlement, or compromise, together with
costs and reasonable attorney fees that the
court allows, incurred in the enforcement of
the lien.
16 AS 34.35.480.
17 AS 34.35.475 gives a hospital a cause of action against
a person who, despite notice of the hospitals lien, pays damages
to the hospitals injured patient. It provides:
(a) A person or insurer is liable to a
hospital, physician, or nurse, in the amount
that the hospital, physician, or nurse is
entitled to receive, for 180 days after the
date of a payment to the injured person, the
heirs of the injured person, personal
representatives, or the attorney of them,
when the person or insurer:
(1) receives a copy of notice of
lien, or the lien is recorded as provided in
AS 34.35.460 and 34.35.465;
(2) makes the payment after
receipt of notice or the recording of the
lien as compensation for the injury suffered;
and
(3) does not pay the hospital,
physician, or the licensed special nurse for
the reasonable value of the services rendered
to the injured person and claimed in the
notice of lien, or so much of the value of
the services as can be satisfied out of a
judgment, settlement, or compromise, after
paying the attorney fees, costs, and expenses
incurred in connection with it.
(b) The hospital, physician, or nurse
has a cause of action, during the 180 days,
against the person or insurer.
18 Id.
19 Young v. Embley, 143 P.3d 936, 947 (Alaska 2006)
(observing that the provision of statutory remedies does not
necessarily preclude traditional remedies).
20 AS 23.30.015, which addresses the effect of third-party
liability on workers compensation benefits, provides in relevant
part:
(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.
21 AS 47.05.070(b) provides:
When the [Department of Health and Social
Services] provides or pays for medical
assistance for injury or illness under this
title, the department is subrogated to not
more than the part of an insurance payment or
other recovery by the recipient that is for
medical expenses provided by the department.
Notwithstanding the assertion of any action
or claim by the recipient of medical
assistance, the department may bring an
action in the superior court against an
alleged third-party payor to recover an
amount subrogated to the department for
medical assistance provided on behalf of a
recipient.
22 Croxton v. Crowley Mar. Corp., 758 P.2d 97, 99 (Alaska
1988) (quoting Caldwell v. Ogden Sea Trans., 618 F.2d 1037, 1048
(4th Cir. 1980)); see also Wichman v. Benner, 948 P.2d 484, 488
(Alaska 1997) (recognizing general rule prohibiting assignment of
tort actions for personal injuries); Deal v. Kearney, 851 P.2d
1353, 1355 (Alaska 1993) (recognizing common law prohibition
against assignment of personal injury claims).
23 Croxton, 758 P.2d at 99; see also Wichman, 948 P.2d at
487-88 (holding employers workers compensation carrier could
assign its statutory right of reimbursement to insurance
carrier); Deal, 851 P.2d at 1356 (holding hospitals assignment of
its claims for indemnity, subrogation, and contribution against
individual doctor to patient did not violate public policy
because claims did not involve a personal injury).
24 It is not surprising that the legislature did not
explicitly or implicitly foreclose the assignment of personal
injury tort claims; as discussed above, it would have had no
reason to think such assignments were available.
25 See note 22.
26 See, e.g., Pony v. County of Los Angeles, 433 F.3d
1138, 1143 (9th Cir. 2006) (The right to sue in tort for personal
injury is non-assignable under California law.); Gregory v.
Lovlien, 26 P.3d 180, 182 n.3 (Or. App. 2001) ( The reasons of
policy against the assignment of personal injury claims have
little relevance with respect to property damage claims. . . .
[B]ecause we conclude that the claim at issue here is property
related, we need not decide whether personal injury claims may
now be assigned.) (internal citations omitted). See generally
R.D. Hursh, Annotation, Assignability of Claim for Personal
Injury or Death, 40 A.L.R.2d 500 (1955).
27 See, e.g., Kithcart v. Kithcart, 124 N.W. 305, 306-07
(Iowa 1910) (recognizing that all causes of action are
assignable). Some states also differentiate between claims for
personal injury and the proceeds from those claims, prohibiting
the assignment of the cause of action but permitting the
assignment of the proceeds. See, e.g., Charlotte-Mecklenburg
Hosp. Auth. v. First of Ga. Ins. Co., 455 S.E.2d 655, 657 (N.C.
1995).
28 42 U.S.C. 1395dd (2006).
29 Notwithstanding Mat-Sus contention that the assignment
only gave it the right to recover the value of its services, the
consent form Mat-Su obtained from Burkhead provided for the
assignment of all rights to or claims for payment against third
parties. (Emphasis added.)
30 Quality Chiropractic, PC v. Farmers Ins. Co. of Ariz.,
51 P.3d 1172 (N.M. App. 2002).
31 Id. at 1179.
32 Id.
33 Id. at 1180.
34 Id.
35 Id. at 1181.
36 Alaska Civil Rule 56(f) provides that:
Should it appear from the affidavits of a
party opposing [a summary judgment motion]
that the party cannot for reasons stated
present by affidavit facts essential to
justify the partys opposition, the court may
refuse the application for judgment or may
order a continuance to permit affidavits to
be obtained or depositions to be taken or
discovery to be had or may make such other
order as is just.
37 Kessey v. Frontier Lodge, Inc., 42 P.3d 1060, 1062-63
(Alaska 2002) (internal citations omitted).
38 Id. at 1063.
39 Mat-Su told the superior court at a May 20, 2008
hearing that it did not need further discovery per se to respond
to [Vosss] exclusive remedy argument. Mat-Su reaffirmed this
position at the hearing on Vosss summary judgment motion, when it
told Judge White that we agree that the record is complete on
this motion, and you can rule up or down or rule however you
wish.
40 Mat-Su asserts that the superior court ordered
Burkheads deposition. More accurately, the court permitted the
deposition. Judge Kristiansen only reluctantly allowed Mat-Su to
depose Burkhead, and explained that she failed to see the
relevance of a deposition to Vosss motion for summary judgment on
the exclusive remedy issue. In any event, nothing revealed at
that deposition created a genuine fact dispute material to the
legal issues before us.
41 Alaska 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.
42 Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 911 (Alaska 2000).
43 A third-party tortfeasor is only liable under the lien
statute to a hospital for 180 days after the date of a payment to
the injured person. AS 34.35.475(a) (emphasis added).
44 See Anchorage Baptist Temple v. Coonrod, 166 P.3d 29,
33-34 (Alaska 2007).
45 Alaska Civil Rule 24(b) provides:
Upon timely application anyone may be
permitted to intervene in an action when an
applicants claim or defense and the main
action have a question of law or fact in
common. When a party to an action relies for
ground of claim or defense upon any statute
or executive order administered by a federal
or state governmental officer or agency or
upon any regulation, order, requirement, or
agreement issued or made pursuant to the
statute or executive order, the officer or
agency upon timely application may be
permitted to intervene in the action. In
exercising its discretion the court shall
consider whether the intervention will unduly
delay or prejudice the adjudication of the
rights of the original parties.
46 Alaskans for a Common Language, 3 P.3d at 916.
47 Id.
48 State v. Weidner, 684 P.2d 103, 114 (Alaska 1984).
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