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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

Mat-Susitna Regional Medical Center, LLC v. Burkhead (2/19/2010) sp-6458, 225 P3d 1097

     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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