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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Corrections v. Hendricks-Pearce (6/24/2011) sp-6571

State, Dept. of Corrections v. Hendricks-Pearce (6/24/2011) sp-6571, 254 P3d 1088

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA, DEPARTMENT                         ) 
OF CORRECTIONS,                                     )    Supreme Court No. S-13602 
                                                    ) 
                        Appellant,                  )    Superior Court No. 3AN-08-09147 CI 
                                                    ) 
        v.                                          )    O P I N I O N 
                                                    ) 
ANITA HENDRICKS-PEARCE,                             )    No. 6571- June 24, 2011 
Personal Representative of the                      ) 
Estate of DEWELL PEARCE,                            ) 
                                                    ) 
                        Appellee.                   ) 
                                                    ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Craig F. Stowers, Judge. 

                Appearances:        Dale W. House, Assistant Attorney General, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for Appellant.  Ted Stepovich, Anchorage, for Appellee. 

                Before: Carpeneti, Chief Justice, Fabe and Winfree, Justices. 
                 [Stowers and Christen, Justices, not participating.] 

                WINFREE, Justice. 

----------------------- Page 2-----------------------

I.      INTRODUCTION
 

                The State of Alaska provided a prisoner extensive medical care during his 

incarceration.   Around the time of his release from custody, the prisoner won a medical 

malpractice judgment against the State.  The State paid part of the judgment but, relying 

on a reimbursement statute, withheld the medical care costs associated with conditions 

unrelated to the malpractice claim.        The State then sought declaratory judgment that it 

was entitled to reimbursement from the former prisoner.             The superior court ruled that 

the statute does not authorize the State to seek reimbursement from former prisoners no 

longer in custody.   Because we interpret the statute to allow post-release reimbursement 

of medical costs incurred during incarceration, we reverse the superior court's ruling and 

remand for further proceedings. 

II.     FACTS AND PROCEEDINGS 

                The   State   has   a   statutory   and   constitutional   obligation   to   provide   all 
prisoners necessary medical care regardless of their ability to pay.1  The State provides 

prisoners medical care through its own Department of Corrections (DOC) employees and 

designated contractors (in-house medical care), but some medical conditions require 
treatment by other providers (outside medical care).2 

                Dewell     Pearce3   was   a  prisoner   from    1994   to  2008,   and   during   his 

        1       AS 33.30.011(4)(A); Abraham v. State, 585 P.2d 526, 531 (Alaska 1978); 

Rust v. State, 582 P.2d 134, 142 (Alaska 1978). 

        2       Compare   22   Alaska   Administrative   Code   (AAC)   05.121(b)(1)   (2004) 

(describing some medical care providers as "department employees" and "designated 
contractors"), with AAC 05.121(b)(2) (referring to prisoner "health care services not 
provided through department employees or designated contractors"). 

        3       Dewell Pearce died in November 2009 and Anita Hendricks-Pearce, his 

estate's personal representative, was substituted in his place.          For ease of reference we 
                                                                                      (continued...) 

                                                 -2-                                              6571 

----------------------- Page 3-----------------------

incarceration the State provided him medical care for a variety of conditions.  The State 
claims it paid more than $150,000 for Pearce's 2001 to 2008 outside medical care.4 

                 While in custody Pearce sued the State for medical malpractice.  A March 

2008 jury trial concluded in Pearce's favor and the court entered a $369,277.88 judgment 

against   the   State.   In   May   2008   the   State   paid   part   of   the   judgment,   but   withheld 

$140,847 as claimed reimbursement for Pearce's outside medical care unrelated to the 
injuries giving rise to the malpractice suit.5         In July 2008 the State filed a declaratory 

judgment action regarding its reimbursement right under AS 33.30.028.6   The record 

        3        (...continued) 

use "Pearce" throughout this opinion. 

        4       See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 245 (1983) (holding 

if a "governmental entity can obtain the medical care needed for a detainee only by 
paying for it, then it must pay"). 

        5       See id. at 245 n.7 (stating "[n]othing we say here affects any right a hospital 

or governmental entity may have to recover from a detainee the cost of the medical 
services provided").   Later decisions have cited this footnote for the limited proposition 
that at least some medical costs might be recovered from a prisoner who receives medical 
services at government expense. See, e.g., Tillman v. Lebanon Cnty. Corr. Facility, 221 
F.3d 410, 418 (3d Cir. 2000); Reynolds v. Wagner, 936 F. Supp. 1216, 1223 (E.D. Pa. 
 1996); Williams v. Ergle, 698 So. 2d 1294, 1295 (Fla. Dist. App. 1997). 

        6        AS 33.30.028 provides: 

                         (a) Notwithstanding any other provision of law, the 
                 liability for payment of the costs of medical . . . care provided 
                 or made available to a prisoner committed to the custody of 
                 the   commissioner       is,  subject  to  (b)   of  this  section,   the 
                responsibility of the prisoner and the 

                         (1) prisoner's insurer if the prisoner is insured . . .; 

                         (2) Department of Health and Social Services if the 
                prisoner is eligible for assistance . . .; 
                                                                                          (continued...) 

                                                   -3-                                                6571 

----------------------- Page 4-----------------------

suggests that Pearce was released from custody sometime before the State filed this 

action. 

                In March 2009 the State moved for summary judgment, arguing that AS 

33.30.028 makes inmates responsible for medical expenses they incur while in custody, 

and that the State was entitled to reimbursement from Pearce.                  Pearce opposed that 

motion   and   filed   a   cross-motion   for   summary   judgment.        Pearce   argued   that   AS 

33.30.028 does not authorize reimbursement (1) for the cost of medical care "made 

available" by the State, which Pearce interpreted to mean outside medical care, in the 

absence of the financial resources listed in AS 33.30.028(a)(1)-(5) (specified funding 

sources), or (2) from former prisoners after their release from custody.                  Pearce also 

contended that the statute of limitations barred at least some of the State's claims, and 

that the State had waived its claims by not asserting them in the medical malpractice 

case.    The State agreed in its reply that its claims should not include medical expenses 

incurred outside the limitations period, but maintained that AS 33.30.028 entitled it to 

reimbursement of approximately $137,000. 

        6       (...continued) 

                        (3) United States Department of Veterans Affairs if the 
                prisoner is eligible for veterans' [medical] benefits . . .; 

                        (4)  United   States   Public   Health   Service,   the   Indian 
                Health   Service,   or   any   affiliated   group   or   agency   if   the 
                prisoner is a Native American and is entitled to medical care 
                from those agencies or groups; and 

                        (5) parent or guardian of the prisoner if the prisoner is 
                under the age of 18. 

                        (b) The commissioner shall require prisoners who are 
                without resources under (a) of this section to pay the costs of 
                medical. . . care provided to them by the department.              At a 
                minimum, the prisoner shall be required to pay a portion of 
                the costs based upon the prisoner's ability to pay. 

                                                  -4-                                             6571
 

----------------------- Page 5-----------------------

                In June 2009 the superior court issued an oral decision denying the State's 

motion and granting Pearce's cross-motion.             The court first rejected Pearce's waiver 

argument, noting that the State's reimbursement claim was unrelated to Pearce's medical 
malpractice claim and therefore was not a compulsory counterclaim.7   The court then 

concluded   that   the   term   "prisoner,"   by   statutory   definition,   includes   only   persons 

currently   held   in   custody.    Because   Pearce   was   no   longer   a   "prisoner,"   the   court 

determined he had no liability to the State for his previous medical expenses. 

                The State moved for reconsideration. The superior court denied the motion 

and entered final judgment for Pearce in July 2009.  The State appeals. 

III.    STANDARD OF REVIEW 

                We review a grant of summary judgment de novo, "affirming if the record 

presents no genuine issue of material fact and if the movant is entitled to judgment as a 
matter of law."8     Both parties advocate that we exercise de novo review for statutory 

interpretation.    De novo review is appropriate to the extent that we are called upon to 

review   DOC's   interpretation   of   the   term   "prisoner"   in   AS   33.30.028;   we   use   our 

independent judgment to review agency interpretations of statutory terms that do not 

implicate agency expertise, adopting the rule of law that is most persuasive in light of 
precedent, reason, and policy.9 

        S 

        7       See Alaska R. Civ. P. 13(a) (stating compulsory counterclaim "arises out 

of the . . . occurrence that is the subject matter of the opposing party's claim").            Pearce 
does not contest this ruling. 

        8       Beegan v. State, Dep't of  Transp. & Pub. Facilities, 195 P.3d 134, 138 

(Alaska 2008) (citingMatanuska Elec. Ass'n v. Chugach Elec. Ass'n, 152 P.3d 460, 465 
(Alaska 2007)). 

        9       Seybert   v.   Cominco   Alaska   Exploration,   182   P.3d   1079,   1089   (Alaska 

2008). 

                                                  -5-                                            6571
 

----------------------- Page 6-----------------------

IV.	    DISCUSSION 

        A.	     Pearce Is A "Prisoner" For Purposes Of AS 33.30.028. 

                1.	    Alaska Statute 33.30.028 is ambiguous and does not conclusively 
                       limit liability for medical costs to current prisoners. 

                The State argues a prisoner's responsibility for medical costs under AS 

33.30.028 is not discharged upon release from custody.  It contends the superior court's 

interpretation is inconsistent with the statute's legislative purpose of shifting medical 

costs to prisoners to the fullest extent possible. 

                Pearce responds that the reimbursement language of AS 33.30.028 is clear 

and unambiguous in using the word "prisoner" to describe only an individual who is 

currently incarcerated.       The superior court adopted this interpretation in its decision, 

relying on the definition of "prisoner" found in AS 33.30.901(12)(A):               "a person held 
under authority of state law in official detention as defined in AS 11.81.900(b)."10 

                Although we follow the legislature's specific definitions of terms where 
provided,11 we recognize that statutes frequently identify parties based on a prior status 

that conferred certain rights and duties.        Enforcement of those rights or duties is not 

necessarily conditioned on retention of that status - whether a term refers to current or 

former status depends on the statute's specific context and intent.              For example, the 

Uniform Residential Landlord and Tenant Act provides that if a "tenant" terminates a 

rental agreement under specific circumstances, the "tenant" may subsequently recover 

        10      AS    11.81.900(b)(40)     defines   "official   detention"   as  "custody,    arrest, 

surrender in lieu of arrest, or actual or constructive restraint under an order of a court." 

        11     Anderson v. Alyeska Pipeline Serv. Co., 234 P.3d 1282, 1287 (Alaska 2010) 

("With a few narrow exceptions, we do not construe statutory language according to its 
common meaning when the legislature has provided a definition of a word or phrase 
. . . ."); see also AS 01.10.040(a) ("Technical words and phrases and those that have 
acquired   a   peculiar   and   appropriate   meaning,   whether   by   legislative   definition   or 
otherwise, shall be construed according to the peculiar and appropriate meaning."). 

                                                 -6-	                                           6571
 

----------------------- Page 7-----------------------

pre-termination damages.12        The party recovering damages no longer is a "tenant" under 

the   statutory   definition   -   "a   person   entitled  under   a   rental   agreement   to   occupy   a 
dwelling"13 - and the term therefore refers to the tenant's status when the right to 

recovery   arose.    Similarly,   even   though   an   "employee"   under   the   Alaska   Workers' 
Compensation Act is "an employee employed by an employer,"14 workers' compensation 

benefits are not limited to current employees; for example, the work-related death of an 

employee precludes further "employee" status but does not preclude later compensation 
benefits for the work-related death.15 

                Both Pearce and the State draw conclusions from AS 33.30.028's failure 

to expressly include former prisoners.           The State argues that if the legislature intended 

to relieve former prisoners of liability, the statute would have indicated that medical costs 

"are   the   responsibility   of   the   prisoner,   but   only   during   the   period   of   the   prisoner's 

incarceration."   Pearce argues that to impose liability on former prisoners would require 

explicit inclusion, citing as an example the Missouri Incarceration Reimbursement Act, 

        12      AS 34.03.160(a)-(c); AS 34.03.210. 

        13      AS 34.03.360(21). 

        14      AS 23.30.395(19). 

        15      See, e.g., AS 23.30.010(a) (stating compensation benefits are payable "for 

disability or death or the need for medical treatment of an employee"); AS 23.30.041(c) 
(discussing reemployment benefits for injured "employee" totally unable for certain 
period   of   time   to   return   to   "employee's   employment");   AS   23.30.095(a)   (requiring 
employer to pay medical expenses for up to two years after "employee's" injury); AS 
23.30.105(a) (requiring an "employee" to file claim for disability within two years after 
employee has knowledge of disability's nature and relation to employment).                      It is not 
surprising     that   our  workers'     compensation       case   law   is  replete   with   claims    for 
compensation by former employees.              See, e.g., Shehata v. Salvation Army, 225 P.3d 
1106, 1109 (Alaska 2010); Kim v. Alyeska Seafoods, Inc., 197 P.3d 193, 194 (Alaska 
2008). 

                                                   -7-                                             6571
 

----------------------- Page 8-----------------------

which provides that the attorney general may "seek to secure reimbursement for the 

expense of the state of Missouri" if "an offender or former offender has sufficient assets" 
to repay the state.16  But these arguments simply reinforce the impossibility of assigning 

a "plain meaning" to "prisoner" without reference to AS 33.30.028's legislative history 
and purpose.17 

        16      Mo. Ann. Stat.  217.831(3) (West 2011) (emphasis added). 

        17      Pearce   cites  State   v.   Merry,   784   P.2d   253,   256   (Alaska   App.   1989) 

(concerning computation of eligibility for parole under former AS 33.15.080) for the 
single-sentence proposition that when "interpreting statutes in AS 33.30, ambiguities in 
the statutes must be construed against the government and in favor of the individual." 
But the court of appeals's full statement is as follows: 

                Although     we   strictly  construe   criminal    statutes,  "[s]trict 
                construction     does   not  require   that  statutes  be  given   the 
                narrowest   meaning   allowed  by   the   language;   rather,   the 
                language should be given 'a reasonable or common sense 
                construction,      consonant     with    the   objectives     of   the 
                legislature.' " 

Id. (quotingBelarde v. Anchorage, 634 P.2d 567, 568 (Alaska App. 1981)).  And Pearce 
makes no effort beyond his single-sentence proposition to develop an argument that 
medical reimbursement is a statutory penalty for which a narrow interpretation might be 
necessary.  Cf.Alaska Pub. Offices Comm'n v. Stevens, 205 P.3d 321, 326 (Alaska 2009) 
(holding that, as with criminal penalties, "imprecise, indefinite, or ambiguous statutory 
or regulatory requirements must be strictly construed in favor of the accused before an 
alleged breach may give rise to a civil penalty").  We reject Pearce's proposed statutory 
interpretation rule for AS 33.33.028. 

                Pearce also argues that "[i]n light of the constitutional principles underlying 
the right to adequate health care, . . . any statute that purportedly gives the State the right 
to seek reimbursement must be specific in its scope and intent."  Neither the cases cited 
in Pearce's brief nor any other cases appear to support this proposition, and  City of 
Revere implies that a prisoner's constitutional right to receive medical care does not limit 
a state's ability to seek reimbursement for that care.  See 463 U.S. at 245. 

                                                 -8-                                            6571
 

----------------------- Page 9-----------------------

                2.	     Extending   liability   for   medical   costs   to   former   prisoners   is 
                         consistent with AS 33.30.028's legislative history and purpose. 

                Pearce   contends   that   the   legislative   history   of   AS   33.30.028   does   not 

indicate intent to allow the State to seek reimbursement from prisoners after their release 

from custody.  We disagree. 

                The primary goal of AS 33.30.028 is reducing medical costs: the legislation 

that led to the reimbursement statute's enactment was directed at controlling the costs 
incurred in correctional institutions,18 and the sponsor statement indicated the proposed 

measures would "reduce some of the costs of inmate health care and allow [the State] to 
focus its limited budget on its true mission."19  Although the legislative history does not 

explicitly   address   extending   liability   to   former   prisoners,   preventing   the   State   from 

collecting from prisoners to the fullest extent possible would contravene the statute's 

cost-saving purpose and is not justified by another interest evident from the face of the 

statute or its legislative history. 

                The superior court's narrow interpretation of "prisoner" would also lead to 

anomalous consequences which, in our view, the legislature did not intend.                    Shielding 

former prisoners from liability for medical costs, as the State points out, "subjects both 

prisoners and [the State] to a limitations period for reimbursement that is [dependent] 

upon how much of the prisoner's sentence remains when [the State] provides medical 

care.    That   time   period   bears   no   reasonable   relationship   to   the   statute's   purposes." 

Conditioning the State's right to reimbursement on the timing of medical care would also 

result in inequitable treatment of prisoners and their specified funding sources, whose 

        18      Minutes, House Judiciary Standing Comm. Hearing on H.B. 219, 19th Leg. 

1st Sess. (Mar. 24, 1995) (Testimony of Rep. Eldon Mulder). 

        19      Rep. Eldon Mulder, Sponsor Statement for H.B. 219, 19th Leg. 1st Sess. 

(March 21, 1995). 

                                                   -9-	                                               6571 

----------------------- Page 10-----------------------

liability would vary depending on when the prisoner's medical condition arose or was 

treated.   And prisoners would have incentive to delay seeking medical care until as late 

as   possible   in   their   sentence,   hoping   that   the   State   would   run   out   of   time   to   seek 

reimbursement before their release. 

                3.	     Conclusion 

                Based     on   the   foregoing,    and   without     needing    to  consider    DOC's 
interpretation to dispel any lingering ambiguity,20 we interpret "prisoner" to include 

former prisoners for the application of AS 33.30.028.  We therefore reverse the superior 

court's ruling that the State is not authorized to seek medical cost reimbursement from 

Pearce under AS 33.30.028. 

        B.	     We   Remand   For   Further   Proceedings   On   Whether   AS   33.30.028 
                Allows Reimbursement For Pearce's Outside Medical Care. 

                The superior court did not address the other statutory interpretation question 

raised in the summary judgment briefing - whether AS 33.30.028 entitles the State to 

reimbursement for the cost of outside medical care from a prisoner without the specified 

funding sources. 

                Pearce   argues   the   statute   allows   reimbursement   for   the   cost   of   outside 

medical care only from the specified funding sources.               Pearce suggests a dichotomy 

based on differences in the subsections' language: under subsection .028(a), liability for 

medical care "provided or made available " to a prisoner is "the responsibility of the 
prisoner and the [specified funding sources]."21  But under subsection .028(b), prisoners 

        20      See Bartley v. State, Dep't of Admin., Teachers' Ret. Bd., 110 P.3d 1254, 

1261 (Alaska 2005) (citing Union Oil Co. v. State, Dep't of Revenue, 560 P.2d 21, 23, 
25 (Alaska 1977)) (noting agency interpretation may help resolve "lingering ambiguity" 
even when applying independent judgment). 

        21      AS 33.30.028(a) (emphasis added).           These sources include the prisoner's 

                                                                                        (continued...) 

                                                  -10-	                                             6571 

----------------------- Page 11-----------------------

without the specified funding sources are required to pay only for medical services 
"provided to them by the department" and then only to the extent of their ability to pay.22 

Pearce argues this language distinguishes between two types of medical care:  in-house 

medical care "provided" to a prisoner by in-house providers, and outside medical care 

"made available" to a prisoner through outside providers.               Pearce's interpretation also 

distinguishes between two types of prisoners:  under subsection .028(a), prisoners who 

have access to the specified funding sources, and under subsection .028(b), prisoners who 

lack the specified funding sources.  He concludes that only prisoners with the specified 

funding sources are responsible for the cost of outside medical care "made available" to 

them, while those who, like Pearce, lack the specified funding sources are not responsible 

for the cost of such outside medical care. Pearce contends this interpretation is supported 
by DOC's own regulation governing prisoner co-payments, 22 AAC 05.121.23 

        21      (...continued) 

personal   insurance,   Department   of   Health   and   Social   Services   benefits,   veterans' 
benefits, Indian Health Service benefits, and the parent or guardian of a minor prisoner. 
Id.  See note 6, above. 

        22      AS 33.30.028(b) (emphasis added). 

        23      22 AAC 05.121 provides in relevant part: 

                         (a) A prisoner will be provided medically necessary 
                health care services regardless of the prisoner's ability to pay 
                or arrange for payment or coverage for the services. . . . 

                         (b) Except as provided in (c) and (d) of this section, a 
                prisoner 

                         (1)   is   financially   responsible   for   a   co-payment   for 
                health     care   services    provided     to   the   prisoner    by   the 
                department   through   department   employees   or   designated 
                contractors; and 
                                                                                          (continued...) 

                                                   -11-                                               6571 

----------------------- Page 12-----------------------

                 The State contends that liability for the cost of outside medical care is 

imposed by AS 33.30.028(a) on all prisoners, regardless of their access to the specified 

funding sources, and that AS 33.30.028's legislative history provides no support for a 

distinction between medical care "provided" and "made available."                      It argues that 22 

AAC 05.121 is not relevant to its reimbursement claim against Pearce because the co-pay 

program established by the regulation is independent of the statute's reimbursement 

provision.     The State also argued before the superior court that its interpretation of the 

statute "merit[ed] some deference" as an agency interpretation. 

                 Pearce's   reading   of   AS   33.30.028   is  not   implausible,   and   the   statute's 

relevant language may be ambiguous.  Although the current record devotes attention to 

the legislative history of AS 33.30.028, we are not confident it alone provides sufficient 

information to allow us to fully address the statutory interpretation question left open by 

the superior court.   The State's interpretation may be entitled to at least some deference, 

        23       (...continued) 

                         (2) shall arrange for the department to obtain payment 
                 or coverage from one or more of the responsible parties set 
                 out in AS 33.30.028 (a), if the prisoner receives health care 
                 services     not  provided     through    department      employees      or 
                 designated contractors. 

                         . . . . 

                         (e) Notwithstanding (a) - (d) and (g) of this section, a 
                 prisoner   may   be   charged   for   the   full   cost   of   health   care 
                 services     provided     by   health    care   providers     other   than 
                 department employees or designated contractors, resulting 
                 from a self-inflicted injury, or an injury to the prisoner or to 
                 another prisoner resulting from an assault or other violation 
                 of facility rules or state law by the prisoner. 

                         (f) A prisoner who is provided health care services by 
                 a    departmental      employee       or   designated      contractor     is 
                 financially responsible for the following co-payments . . . . 

                                                    -12-                                              6571
 

----------------------- Page 13-----------------------

depending on the applicable standard of review for interpreting the relevant language;24 

in the absence of full briefing on the issue, we decline to decide which standard of review 

applies to this aspect of the parties' competing statutory interpretations and leave that 

matter for the superior court to determine in the first instance. 

                We believe judicial interpretation of the statute requires a determination of 

the appropriate standard of review and further record development regarding the State's 

statutory interpretation as it may be reflected in:         (1) promulgation of 22 AAC 05.121; 

(2) promulgation of department policies and procedures pursuant to AS 33.30.028 and 

22 AAC 05.121; (3) other reimbursement-enforcement actions based on the statute; and 

(4) any other relevant sources.   We therefore remand this question to the superior court 
for further proceedings.25 

        24      When an agency interprets a statute we review the interpretation under one 

of two standards:  the reasonable basis standard, if the interpretation at issue "implicates 
agency expertise or the determination of fundamental policies within the scope of the 
agency's statutory functions"; or the independent judgment standard, if "the agency's 
specialized   knowledge   and   experience  would   not   be   particularly   probative   on   the 
meaning of the statute."  Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 175 
(Alaska 1986).   We note that even when applying our independent judgment, "we have 
recognized that an agency's interpretation of a law within its area of jurisdiction can help 
resolve     lingering     ambiguity,     particularly    when     the   agency's     interpretation     is 
longstanding." Bartley, 110 P.3d at 1261 (citing Union Oil Co., 560 P.2d at 23, 25). We 
also note that to the extent the State's interpretation of the statute is embodied in a 
regulation,   we   review   an   agency's   interpretation   of   its   own   regulation   applying   the 
reasonable basis standard, "defer[ring] to the agency unless its 'interpretation is plainly 
erroneous and inconsistent with the regulation' . . . [because] the agency is best able to 
discern its intent in promulgating the regulation at issue." Kuzmin v. State, Commercial 
Fisheries Entry Comm'n, 223 P.3d 86, 89 (Alaska 2009) (internal citation omitted). 

        25      We also leave to the superior court any considerations that the State's 

recovery, if allowed, may be subject to a claim for attorney's fees and costs incurred by 
Pearce in establishing what might be considered a common fund the State has essentially 
liened for its recovery. 

                                                  -13-                                             6571
 

----------------------- Page 14-----------------------

V.     CONCLUSION 

              For   the  reasons  set  forth  above,  we   REVERSE     the  superior  court's 

summary      judgment   ruling,  VACATE       the  judgment,  and   REMAND       for  further 

proceedings. 

                                             -14-                                      6571
 
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