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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cornelison v. TIG Insurance (8/12/2016) sp-7119

Cornelison v. TIG Insurance (8/12/2016) sp-7119

          Notice:    This  opinion   is  subject   to  correction  before  publication   in   the  PACIFIC  REPORTER.  

          Readers  are r   equested  to  bring  errors to the attention  of  the  Clerk  of  the  Appellate C  ourts,  

          303  K  Street, Anchorage, Alaska  99501, phone   (907)  264-0608, fax   (907)  264-0878,  email  

          corrections@akcourts.us.  



FLOYD  and  JUDY  CORNELISON,                                 )  

                                                              )     Supreme  Court  No.  S-15647  

                             Appellants,                      )  

                                                                                                                        

                                                              )     Superior Court No. 3PA-11-01386 CI  

          v.                                                  )  

                                                                    O                  

                                                              )        P I N I O N  

                                                        

TIG INSURANCE, CRAWFORD &                                     )  

                                                                                                       

COMPANY/BROADSPIRE SERVICES,                                        No. 7119 - August 12, 2016  

                                                              ) 

                                                

GRIFFIN & SMITH, ROBERT GRIFFIN,)  

                                   

CHRISTI NIEMANN, NORTHERN                                     )  

                              

INVESTIGATIVE ASSOCIATES,                                     )  

                                                   

DENNIS JOHNSON, DENARA, INC.                                  )  

                             

and JOEL SERES, M.D.,                                         )  

                                                              )
  

                             Appellees.                       )
  

                                                              )
  



                                                                                                   

                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                                     

                   Judicial District, Palmer, Gregory L. Heath, Judge.  



                                                                                               

                   Appearances: Floyd  and Judy Cornelison, pro  se, Wasilla,  

                                                                                            

                   Appellants.   Adolf  V.  Zeman,  Landye  Bennett  Blumstein  

                                                                                              

                   LLP, Anchorage, for Appellees TIG Insurance and Crawford  

                                                                                                      

                   Company/Broadspire.   Ray  R.  Brown,  Jessica Dillon,  and  

                                                                                                       

                   Michelle Nesbett,  Dillon  & Findley,  P.C.,  Anchorage,  for  

                                                                                                

                   Appellees  Griffin  &  Smith,  Robert  Griffin,  and  Christi  

                                                                                                

                   Niemann.  Matthew D. Regan and Alex Vasauskas, Holmes  

                                                                                              

                   Weddle & Barcott, PC, Anchorage, for Appellees Northern  

                                                                                                            

                   Investigative Associates, Dennis Johnson, and Denara, Inc.  

                                                                                                   

                    Scott Leuning, Leuning & Renner, LLC, Sioux Falls, South  

                                                                    

                   Dakota, for Appellee Joel Seres, M.D.  



                                                                                                    

                   Before: Fabe, Winfree, and Bolger, Justices. [Stowers, Chief  

                                                                     

                   Justice and Maassen, Justice, not participating.]  


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

                          BOLGER, Justice.
   

                          WINFREE, Justice, dissenting in part.
                              



I.           INTRODUCTION  



                          An employer and its workers' compensation insurer challenged a former  

                                                                                                                                                              



employee's continuing eligibility for workers' compensation, relying on surreptitious  

                                                                                                                                                   



video  surveillance  and  a  doctor's  report  issued  after  the  doctor  viewed  an  edited  

                                                                                                                                                               



surveillance  video.                         The  employee  and  his  wife  sued  the  employer's  workers'  

                                                                                                                                                         



compensation  carrier  and  a  number  of  others  involved  in  the  attempt  to  terminate  

                                                                                                                                 



benefits; they alleged several causes of action, contending that the video had  been  

                                                                                                                                                                 



purposely edited to provide a false picture of the employee's physical abilities and that  

                                                                                                                                                                    



the defendants had participated to varying degrees in a scheme to defraud the Alaska  

                                                                                                                                                              



Workers' Compensation Board. The trial court granted summary judgment or dismissal  

                                                                                                                                                          



as to all of the defendants on all counts.  We affirm in part, reverse in part, and remand  

                                                                                                                                                             



for further proceedings.  

                       



II.          FACTS AND PROCEEDINGS  

                                           



                          Floyd Cornelison injured his back at work in 1996 while shoveling dirt.  

                                                                                                                                                                             



He had back surgery later that year, but it did little to improve his condition.  The Board  

                                                                                                                                                                



found  he  was  permanently  and  totally  disabled  (PTD)  in  2001  under  the  odd-lot  

                                                                                                                                                            

doctrine.1   TIG Insurance, the workers' compensation insurer for Floyd's employer, did  

                                                                                                                                                                      



not contest that he was PTD; it reclassified his workers' compensation benefits as PTD  

                                                                                                                                                                  



             1             The   odd-lot   doctrine,  which  we   have   adopted,   permits   a   finding   of  



permanent total disability                            in   a workers'               compensation   proceeding   where a worker,                             

"while not altogether incapacitated for work, [is] so handicapped that [he] will not be                                                                                

employed regularly in any well-known branch of the labor market."                                                                         Meek v. Unocal     

Corp., 914 P.2d 1276, 1279 (Alaska 1996) (quoting                                                     Olson v. AIC/Martin J.V.                         , 818 P.2d     

669, 674 (Alaska 1991)).            



                                                                                   -2-                                                                           7119
  


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

 in 2000.                                                 Floyd also received Social Security disability payments, and the employer                                                                                                                                                                                                                                                                                                                                                                               



received an offset for those payments.                                                                                                                                                                                                                    



                                                                                       In 2007 TIG began an investigation into Floyd's claim; in pleadings before                                                                                                                                                                                                                                                                                                                                                                       



the superior court, TIG said it sought "potential evidence to show that the benefits being                                                                                                                                                                                                                                                                                                                                                                                                                                                    



paid [to Floyd] may be excessive."                                                                                                                                                                                                          TIG hired a private investigation firm, Northern                                                                                                                                                                                                                         



InvestigativeAssociates,to conduct surveillanceandsearch                                                                                                                                                                                                                                                                                                                                     for information                                                                                      aboutFloyd.                                                                        



Dennis Johnson was the president and owner of Northern Investigative Associates and                                                                                                                                                                                                                                                                                                                                                                                                                                                                       



 an officer of Denara, Inc., which did business under the name Northern Investigative                                                                                                                                                                                                                                                                                                                                                                                                       



Associates.     After investigators employed by the firm surreptitiously filmed Floyd,                                                                                                                                                                                                                                                                                                                                                                                                                                              



Johnson created edited videos and presented those videos to TIG.  Johnson also wrote                                                                                                                  



reports based on the investigators' notes.                                                                                                                                                                                        



                                                                                       Floyd and his wife, Judy, alleged that Johnson edited the video to create a                                                                                                                                                                                                                                                                                                                                                                                                        



 false impression of Floyd's physical capacities, making him look more capable than he                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



was in reality and editing out behaviors that showed he was in pain, and contended that                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



Johnson knew from prior experience in workers' compensation cases what type of                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 evidence he needed to produce. They alleged Johnson created this false video to bolster                                                                                                                                                                                                                                                                                                                                                                                                                                             



his own business because he knew that if he did not provide sufficient evidence to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



terminate Floyd's benefits, the insurer would likely not use his investigative services in                                                                                                                                                                                                                                                                                                                                                                                                                                                                           



the future.                                                          



                                                                                       After Johnson reported that Floyd was more active than he claimed to be                                                                                                                                                                                                                                                                       



 and provided the edited video, TIG required Floyd to attend an employer's medical                                                                                                                                                                                                                                                                                                                                                                                                                                          



 evaluation (EME) in 2008 with Dr. Joel Seres, who had previously conducted other                                                                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                                                                2            In a 1999 report Dr. Seres told  

EMEs related to Floyd's workers' compensation case.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                            2                                          Under   AS   23.30.095(e)   an   employee   is   required   to   attend   medical  



 examinations requested and paid for by his employer "at reasonable times during the                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             (continued...)  



                                                                                                                                                                                                                                                                                 -3-                                                                                                                                                                                                                                                               7119
  


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

the employer that Floyd had "a significant pain problem that precludes his ability to sit                                                                                                                                                                                                                                                                                                                                                                                                                               



 or stand for any significant length of time"; Dr. Seres thought Floyd had "a legitimate                                                                                                                                                                                                                                              



 source for his pain," relating it to "the remarkable scarring and sclerosis of musculature                                                                                                                                                                                                                                                                                                                                                                  



that has occurred in his lower back as the direct result of his surgical procedures."                                                                                                                                                                                                                                                                                                                                                                                                                   That  



 same year, a neuropsychologist associated with Dr. Seres administered a psychological                                                                                                                                                                                                                                                                                                                                                      



 assessment   of   Floyd   and   concluded   that   Floyd   provided   a   reasonable   effort  in   the  



 evaluation and had "a considerable pain problem."                                                                                                                                                                                                                                                                          And in a 2001 report, Dr. Seres                                                                                                                                         



wrote that Floyd had "[p]ersisting mechanical low back pain" and "[m]arked scarring of                                                                                                                                                                                                                                                                                                                                                                                                                                    



the musculature of the low back."                                                                                                                                                                            



                                                                                Before the 2008 EME, TIG supplied Dr. Seres with copies of the edited                                                                                                                                                                                                                                                                                                                                           



video and Johnson's reports.                                                                                                                                                    In his 2008 report, Dr. Seres had a completely different                                                                                                                                                                                                                                          



impression of Floyd, writing, "His exaggerated physical limitations as demonstrated in                                                                                                                                                                                                                                                                                                                                                                                                                                    



today's evaluation are in sharp contrast to the movements recorded in the surveillance  



reports and videos."                                                                                                        Dr. Seres concluded Floyd had "an exaggerated pain syndrome,                                                                                                                                                                                                                                                                              



which is not supported adequately by the physical findings and is virtually invalidated                                                                                                                                                                  



by the surveillance study."                                                                                                                                       Dr. Seres's report raised "the possibility of drug diversion"                                                                                                                                                                                                                                        



 and mentioned the edited videos multiple times.                                                                                                                                                                                                                                                        According to an email between the                                                                                                                 



insurance adjuster and the law firm representing the employer, Dr. Seres "strongly                                                                                                                                                                                                                                                                                                                                                                                          



indicate[d] he [did] not believe [Floyd] is permanently and totally disabled based on the                                                                                                                                                                                                                                                                                                                                                                                                                           



information   contained   in   the   surveillance   video   and   the   inconsistencies   in   the  



 evaluation."    



                                                                                 TIG subsequently authorized more surveillance by Johnson; the adjuster's                                                                                                                                                                                                                                                                                                                   



notes record a conversation with one of Johnson's investigators in which the investigator                                                                                                                                                                                                                                                                                                                                                                       



                                        2                                        (...continued)  



                                                                                                                                                                                       

 continuance of the disability."  



                                                                                                                                                                                                                                                            -4-                                                                                                                                                                                                                                            7119  


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

                                                                                                                            

reported that Floyd was "active in his shop and yard on a level of 10 hours a day every  



                                                                                                                                   

day."  Johnson created another edited video, which TIG again sent to Dr. Seres.  In a  



                                                                                                                              

2009 report, Dr. Seres noted that the new edited video contained "remarkable new  



                                                                                                                     

material . . . that strongly argues that [Floyd] is actually not impaired in any significant  



                                                                                                                              

way from a physical standpoint."  Dr. Seres also commented, "I have never seen a more  



                                                                                                                             

remarkable discrepancy between the severe disability that the patient demonstrates when  



                                                                                                                         

he is seen by me, in comparison to the remarkably normal behavior and physical abilities  



                                                                                                                            

seen in these surveillance films."  He then proceeded to present his "conclusions based  



                                                                                                                                

upon [his] medical review of the patient's physical capacities demonstrated during the  



                                                                                                                             

surveillance." Dr. Seres concluded Floyd was "capable of returning to any type of work  



                                                                                                                         

without restrictions on a full time basis." After acknowledging that he had been retained  



                                                                                                                       

to give an opinion on Floyd's PTD benefits, Dr. Seres included the following comment  



                                                                                                                        

in his report: "[Floyd] has indicated to me in the past that he is receiving Social Security  



                                                                                                             

Disability  (SSDI)  income as well.                      If this is true I believe that the [edited  videos]  



                                                            

demonstrate Social Security [f]raud."  



                                                                                                                     

                    In   April   2009   TIG   filed   a   petition   asking   the   Alaska   Workers'  



                                                                                                                            

Compensation Board to terminate Floyd's PTD benefits; the law firm of Griffin & Smith  



                                                                                                                                      

represented the insurer, with a paralegal, Christi Niemann, signing the petition itself.  



                                                                                                                        

Although the petition alleged "new evidence" supported terminating Floyd's benefits,  



                                                                                                                              

no evidence accompanied the petition, and the petition did not set out any specific facts  



                                                                                                                     

to support the assertion that Floyd was no longer PTD.  Floyd filed a pro se opposition  



                                                                                                                       

to the petition, denied that he was no longer PTD, and said, "There was no evidence  



                                                                                                                          

stated or attached in the Petition."  The next month, Griffin & Smith filed Dr. Seres's  



                                                             

2008 and 2009 reports with the Board.  



                                                                                                                     

                    The Board proceedings progressed toward a hearing.  Floyd eventually  



                                                                                                                 

obtained  representation,  but for  a portion  of the Board  proceedings a non-attorney  



                                                                -5-                                                         7119
  


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

represented him.                            In 2012 the employer filed an amended petition to terminate Floyd's                                                                                         



benefits in which it set out the factual bases for its petition, including Dr. Seres's reports                                                                                                            



from 2008 and 2009.                                    In the petition the employer stated that the date Floyd's disability                                                                         



ended was "a date in the future when the . . . Board determines that [Floyd] is not                                                                                                                         



permanently and totally disabled."                                                       Floyd continued to receive PTD benefits during the                                                                         



                                                                                                                                  3  

course of the Board proceedings to terminate them.                                                                                    



                                  In 2011 both Floyd and Judy, representingthemselves, filed suit in superior  

                                                                                                                                                                                                       

court against some of those involved in the attempt to terminate Floyd's benefits.4                                                                                                                                   In  

                                                                                                                                                                                                                     



their initial complaint they sued only TIG; its adjusters, Crawford & Company and  

                                                                                                                                                                                                                  



Broadspire Services, Inc.; Griffin & Smith; and two of Griffin & Smith's employees,  

                                                                                                                                                                                               



Niemann and attorney Robert Griffin.  The Cornelisons alleged several tort claims and  

                                                                                                                                                                                                                  



requested damages in excess of $100,000.  About a month later they filed an amended  

                                                                                                                                                                                                     



complaint, adding as defendants Dr. Seres, Johnson, Northern Investigative Associates,  

                                                                                                                                                                                               



and Denara, Inc.  They filed a second amended complaint in October 2011; this is the  

                                                                                                                                                                                                                    



latest complaint they  filed.   An out-of-state attorney, appearing with local counsel,  

                                                                                                                                                                                                      



represented the Cornelisons when they filed the second amended complaint.  

                                                                                                                                                                                                   



                                  In  the  second  amended  complaint,  the  Cornelisons'  causes  of  action  

                                                                                                                                                                                                           



included tortious interference with contract rights; negligent infliction of emotional  

                                                                                                                                                                                                 



distress (NIED); intentional infliction of emotional distress (IIED); abuse of process;  

                                                                                                                                                                                                      



fraud, false light, defamation, libel, slander, and "other misrepresentations"; breach of  

                                                                                                                            



                 3                If the Board orders payment of benefits, the employer cannot unilaterally                                                                                    



terminate those benefits; it may only modify or terminate those benefits through a Board                                                                                                                  

order.    Underwater Constr., Inc. v. Shirley                                                               , 884 P.2d 156, 161 (Alaska 1994).                                       



                 4                Evidently the timing of the lawsuit was based on the Cornelisons' belief  

                                                                                                                                                                                                             

that the statute of limitations on their claims began to run in April 2009, when they first  

                                                                                                                                                                                                                  

received the petition to terminate Floyd's benefits.  

                                                                                                                                  



                                                                                                          -6-                                                                                                  7119
  


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

professional obligations                             on the part of thedefendants; and violations oftheAlaskaUnfair                                                              



TradePracticesandConsumerProtection                                                      Act(UTPA). TheCornelisons                                         soughtdamages   



in excess of $100,000 and some type of injunctive relief against the                                                                            defendants to prevent         



a situation like theirs fromoccurring                                          again. The              defendants answered, denying all claims  



and raising affirmative defenses.                                           The defendants grouped themselves as follows for                                                           



purposes of representation:                                  Dr. Seres; Johnson, Northern Investigative Associates, and                                                                

                                                                  5   Crawford & Company, and Broadspire Services, Inc.  

Denara, Inc. (Johnson); TIG,                                                                                                                                                         



(TIG); and Griffin & Smith, Griffin, and Niemann (Griffin & Smith).  

                                                                                                                                                          



                             Litigation ensued, including discovery disputes.  The Board proceeding  

                                                                                                                                                                      



continued toward a hearing as well. In February 2012 the Cornelisons asked the superior  

                                                                                                                                                                             



court to stay the proceedings until the Board case ended, basing their argument on two  

                                                                                                                                                                                      



alternative grounds:  primary jurisdiction and a balancing test imported from situations  

                                                                                                                                                                         



with both civil and criminal cases proceeding at the same time. In their motion for a stay  

                                                                                                                                                                                    

                                                                                             6  and they said they would "submit a Third  

they referred to AS 23.30.250(a) and (c),                                                                                                                                        

                                                                           



               5             Initially TIG had separate counsel in the superior court.                                                                   In June 2013 the               



attorney representing Crawford & Company and Broadspire Services, Inc. began to                                                                                                          

represent TIG as well.                             



               6             Alaska Statute 23.30.250(a) provides:  

                                                                                             



                             A person who (1) knowingly makes a false or misleading  

                                                                                                                                        

                              statement, representation, or submission related to a benefit  

                                                                                                                                                 

                             under this chapter; (2) knowingly assists, abets, solicits, or  

                                                                                                                                                            

                             conspires  in  making  a  false  or  misleading  submission  

                                                                                                                                      

                             affecting the payment, coverage, or other benefit under this  

                                                                                                                                                         

                             chapter;(3) knowingly misclassifiesemployees or engagesin  

                                                                                                                                                             

                             deceptive leasing practices for the purpose of evading full  

                                                                                                                                                         

                             payment of workers' compensation insurance premiums; or  

                                                                                                                                                            

                             (4) employs or contracts with a person or firm to coerce or  

                                                                                                                                  

                             encourage an individual to file a fraudulent compensation  

                                                                                                                                                                 (continued...)  



                                                                                            -7-                                                                                    7119
  


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

Amended   Complaint  to   make   this   particular   statutory   claim perfectly                                                                                                                                                                                                                                                        clear"   to   the  



defendants after the Board's decision.                                                                                                                                     The defendants opposed, arguing that the Board                                                                                                                                                



did not have jurisdiction over tort claims so that primary jurisdiction did not apply. The                                                                                                                                                                                                                                                                                        



court denied the motion to stay, holding that primary jurisdiction did not apply because                                                                                                                                                                                                                                                                         



none of the claims fell within the Board's primary jurisdiction; the court also decided that                                                                                                                                                                                                                                                                                        



it was "not required to address the claims in the worker[s'] compensation case," so a stay                                                                                                                                                                                                                                                                                    



would only prejudice the defendants.                                                                                                                                     



                                                            In March 2013 Dr. Seres moved for summary judgment on all of the claims                                                                                                                                                                                                                                     



against him.                                             That month Griffin & Smith moved for judgment on the pleadings under                                                                                                                                                                                                                                             



Alaska Civil Rule 12(c), arguing, that the exclusive remedy provision of the Alaska                                                                                                                                                                                                                                                                                 



Workers' Compensation Act (AWCA) barred the suit.                                                                                                                                                                                                      



                                                            In   May   2013   the   Cornelisons'   attorneys   asked   to   withdraw,  and   the  



Cornelisons moved for a stay of the proceedings so they could find new counsel.                                                                                                                                                                                                                                                                                            After  



an ex parte hearing on the motion to withdraw, the court permitted the withdrawal and                                                                                                                                                                                                                                                                                               



granted a 90-day stay; the court also stated that it would not grant further continuances                                                                                                                                                                                                                                                 



for the Cornelisons to get an attorney.                                                                                                                                      



                                                            The Cornelisons did not find new counsel within 90 days, so they again                                                                                                                                                                                                                                         



asked the court to stay the proceedings pending resolution of the Board case.                                                                                                                                                                                                                                                                          The court   



denied the stay.  The Cornelisons petitioned this court for review of the order denying  



                              6	                            (...continued)  



                                                                                                                                                                                                                                                                                                                          

                                                            claim is civilly liable to a person adversely affected by the  

                                                                                                                                                                                                                                                                                                                            

                                                            conduct,  is  guilty  of  theft  by  deception  as  defined  in  

                                                                                                                                                                                                                                                                                                                         

                                                            AS  11.46.180,  and  may  be  punished  as  provided  by  

                                                                                                                                

                                                            AS 11.46.120 - 11.46.150.  



                                                                                                                                                                                                                                                                                                                                                                                          

Alaska Statute 23.30.250(c) permits compensatory and punitive damages as well as  

                                                                                                                                                                                                                                                                                                

attorney's fees to a prevailing party in a claim under subsection (a).  



                                                                                                                                                                                             -8-	                                                                                                                                                                              7119
  


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

the stay; we denied review because by the time we considered the petition, the Board had                                                                                                       



already issued its final decision denying the petition to terminate Floyd's benefits.                                                                                                        The  



Cornelisons filed a copy of the Board's decision and order with the superior court in                                                                                                             

                                        7       In  its  decision,  the  Board  found  that  Floyd  continued  to  be  

December   2013.                                                                                                                                                                                



permanently and totally disabled, declined to give any weight to Dr. Seres's reports,  

                                                                                                                                                                                     



described Johnson's edited videos as "flawed" based in part on its review of one day of  

                                                                                                                                                                                                  



surveillance footage, and decided there was no evidence that Floyd had committed fraud  

                                                                                                                                                                                           



in obtaining either his PTD or Social Security benefits.  The Board awarded attorney's  

                                                                                                                                                                                



fees and costs to the Cornelisons.  

                                                                               



                               TIGmoved for summary judgment in thesuperiorcourtinNovember 2013,  

                                                                                                                                                                                           



arguing that there were no issues of material fact with regard to any of the claims against  

                                                                                                                                                                                       



it.       In  June  2014  Johnson  moved  for  summary  judgment  on  some  counts  and  for  

                                                                                                                                                                                               



dismissal of others under Alaska Civil Rule 12(b)(6).  

                                                                                                                            



                               The superior court granted summary judgment to Dr. Seres in May 2014.  

                                                                                                                                                                                                         



It concluded that Dr. Seres owed no duty to the Cornelisons, so there could be no breach  

                                                                                                                                                                                        



of a duty.  It also decided that claims against Dr. Seres were time-barred because the  

                                                                                                                                                                                                



evaluation that was the basis of the claims occurred in 2008, and the Cornelisons did not  

                                                                                                                                                                                                

bring suit until 2011.8   The superior court explained that the discovery rule for statute of  

                                                                                                                                                                                                  



limitations did not apply because the Cornelisons had alleged that Dr. Seres injured  

                                                                                                                                                                                      

Floyd during the EME.9                                        The court next decided that Dr. Seres was shielded from  

                                                                                                                                                                                           



               7               On appeal the parties dispute the admissibility of the Board's decision.                                                                                                  



Because the superior court did not consider either its admissibility or any preclusive                                                                                         

effect it might have on the issues here, we express no opinion about this dispute.                                                                                                         



               8               See AS 09.10.070(a) (two-year limitations period for tort actions).  

                                                                                                                                                                    



               9               See Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1274 (Alaska  

                                                                                                                                              

                                                                                                                                                                        (continued...)  



                                                                                                -9-                                                                                        7119
  


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

liability   by   AS   23.30.095(k)   because   he   was   an   employer's   independent   medical  



               10  

examiner.                                                                                                                 

                    It stated that AS 23.30.095(k) also protected Dr. Seres from any claims  



                                                                                                         

related to libel, and it noted Judy's concession that the fraud claims were not aimed at  



                                                                                                                            

Dr. Seres; accordingly it granted summary judgment to Dr. Seres on the fraud, false light,  



                                                                                                                               

defamation, libel, slander, and misrepresentation claim. The court found no basis for the  



                                                                                                                               

other  claims  against  Dr.  Seres,  and  it  granted  summary  judgment  for  him  on  all  



                             

remaining claims.  



                                                                                                                               

                    In July the court granted Griffin & Smith's motion for judgment on the  



                                                                                                                             

pleadings.  It first concluded that, because Griffin & Smith served as attorneys for TIG  



                                                                                                                              

in the workers' compensation case, Griffin & Smith "stepped into the shoes of TIG" and  



                                                                                                                    

was thus "a party to the initial economic relationship," so that no liability for interfering  



                                                                                                                        

with  an  economic  relationship  could  attach.                        The  court  also  observed  that  Floyd's  



                                                                                                                           

benefits  were  "never  unilaterally  terminated,"  so  no  breach  occurred.                                      The  court  



                                                                                                                               

concluded  the  Cornelisons  had  not  adequately  pleaded  either  their  negligent  or  



intentional infliction of emotional distress claim against Griffin & Smith, so it granted  



                                                                                                                        

judgment on the pleadings on those claims as well.  It also found no abuse of process  



                                                                                                                              

because (1) the proceeding that served as the basis for the abuse of process claim was  



          9          (...continued)  



                                                                                                                                

2013) ("The common-law discovery rule tolls the running of an applicable statute of  

                                                                                                                                  

limitations '[w]here an element of a cause of action is not immediately apparent.' "  

                                                                                                         

(quoting John's Heating Serv. v. Lamb, 46 P.3d 1024, 1031 (Alaska 2002))).  



          10        Alaska Statute 23.30.095(k) sets out the process for second independent  

                                                                                                                 

medical evaluations in workers' compensation cases.  The Board can order a second  

                                                                                                                         

independent medical evaluation when the employee's physician and the employer's  

                                                                                                                  

physician disagree about causation or the need for a specific treatment. "The purpose of  

                                                                                                                                 

 [a second independent medical evaluation] is to have an independent expert provide an  

                                                                                                                                

opinion to the [B]oard about a contested issue."  Seybert v. Cominco Alaska Expl., 182  

                                                                                                                              

P.3d 1079, 1097 (Alaska 2008).  

                                        



                                                               -10-                                                        7119
  


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

administrative rather than judicial and (2) the defendants were "simply exercising [their]                                                                                                                                                                                                                                                                        



right   to   be   heard."     The   court   decided   any   defamatory   statements   were   privileged  



because they had been made in the workers' compensation proceeding.                                                                                                                                                                                                                                                       It also decided                 



there was no misrepresentation, no plausible professional malpractice claim, and no                                                                                                                                                                                                                                                                         



plausible UTPA claim.                                                                                  



                                                           That day, thecourt                                                               alsogranted                                           summary judgment to TIG. For                                                                                                              the tortious  



interference with contract claim, the court used essentially the same rationale as it had                                                                                                                                                                                                                                                              



in its order on Griffin & Smith's motion.                                                                                                                                               Its reasoning for the abuse of process claim                                                                                                                                



and the emotional distress claims was also similar.                                                                                                                                                                             As for the misrepresentation claim,                                                                                              



the court decided the Cornelisons had failed to show justifiable reliance on any statement                                                                                                                                                                                                                                                         



and dismissed that claim.                                                                                             The court granted summary judgment on the defamation                                                                                                                                                               



claims, noting that the defendants have an absolute privilege to publish defamatory                                                                                                                                                                                                                                                      



matter within the bounds of an adjudicative proceeding.                                                                                                                                                                                                  Finally, the court determined   



that   the   Cornelisons   did   not   have   a   cause   of   action   against   TIG   for   professional  



malpractice or for a UTPA violation.                                                                                                                                  



                                                           The court also granted Johnson's motion for summary judgment or for                                                                                                                                                                                                                                                 



failure to state a claim.                                                                            It decided that Johnson was an agent or employee of TIG, so no                                                                                                                                                                                                               



cause   of   action   for   tortious   interference   with   any   contract   between   TIG   and   the  



Cornelisons existed; the court accordingly dismissed this claim for failure to state a                                                                                                                                                                                                                                                                                                



claim.   With respect to the intentional infliction of emotional distress claim, the court                                                                                                                                                                                                                                                                            

                                                                                                                        11           for  the  proposition  that  it  must  make  a  "threshold  

cited    Chizmar    v.    Mackie                                                                                                                                                                                                                                                                                                          



determination 'whether the severity of the emotional distress and the conduct of the  

                                                                                                                                                                                                                                                                                                                                                                              



offending party warrant an instruction on intentional infliction of emotional distress.' "  

                                                                                                                                                                                                                                                                                                                                                                                                 



The court concluded that the Cornelisons did "not present any specific emotional injuries  

                                                                                                                                                                                                                                                                                                                                                            



                              11                           896  P.2d   196,  208  (Alaska   1995).  



                                                                                                                                                                                      -11-                                                                                                                                                                                                 7119  


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

                                                                                                                    

resulting from [the] defendants' conduct" but "only generally claim[ed] 'emotional  



                                                                                                                                

distress.' "  After summarizing some case law, the court decided Johnson's conduct did  



                                                                                                                         

not "[]rise to [the] level of outrageous conduct necessary to attach liability."  It granted  



                                                                                                                             

summary judgment to Johnson on that claim.  With respect to the NIED claim, the court  



                                                                                                                                

decided that there was no physical injury to the Cornelisons and that they did not fall  



                                                                                                                         

within any exception to the rule requiring some type of physical injury, so it granted  



                                                                                                                          

Johnson's Rule 12(b)(6) motion on that claim. The court dismissed the abuse of process  



                                                                      

claim against Johnson because Johnson was working for TIG and had no control over  



                                                               

the administrative or legal proceedings.  



                                                                                                                              

                    The court decided that under AS 23.30.280(e), Johnson was immune from  



                                                                                                       

liability for any defamation claims because he was only providing information related  



                                                                                                                              

to suspected fraud.  The court explained that the alleged facts did "not support any type  



                                                                                                                                

of misconduct" on Johnson's part and that "[r]egardless of how defendants edited the  



                                                                                                                                

[video] for purposes of reporting the information to TIG, the evidence shows that the  



                                                                                                                              

[edited video] accurately depicted [Floyd's] outdoor activities."   It declined to find  



                                                                                                                       

"editing,  however  sloppily,  the  high  numbers  of  hours  of  footage  into  a  compact  



                                                                                                                                      

presentable report of the relevant information amounts to any type of misconduct."  



                                                                                                                   

Finally, it decided that any defamatory statements were privileged if made in conjunction  



                                                                                                                            

with an adjudicative hearing.  The court dismissed the professional negligence claim  



                                                                                                                           

because there was no duty of care, and it dismissed the UTPA claim because the UTPA  



                        

did not apply.  



                                                                                                                               

                    At  the  end  of  the  three  July  31,  2014  orders,  the  court  included  the  



                 

following paragraph:  



                                                                                                            

                    The  court  finds  itself  an  improper  forum  for  claims  of  

                                                                                                              

                    emotional distress resulting from [Board] hearings, yet, is  

                                                                                                      

                    concerned that claimants have little protection from poorly  

                                                                                                    

                    constructed and pursued claims for termination of benefits  



                                                               -12-                                                         7119
  


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

                             pursuant to the AWCA.  The AWCA provides penalties for                             

                             several types of actions under AS . . . 23.30.250 through                                                       

                             AS . . . 23.30.260.                       However, the Act does not contemplate                        

                             the   emotional   distress   suffered   by   claimants   who   are   the  

                             victim[s] of injudicious, imprudent claims.                                                   The Department   

                             of   Labor   and   Workforce   Development   should   consider  

                             implementing mechanisms to ensure that only well-founded                                             

                             complaints are allowed to protract over time.                                                      



                             The Cornelisons appeal.               



 III.          STANDARD OF REVIEW                       

                                                                                                                                       12   Summary judgment is  

                             We review grants of summary judgment de novo.                                                                                                              



 appropriate if there is no genuine factual dispute and the moving party is entitled to  

                                                                                                                                                                                       

judgment as a matter of law. 13   In reviewing summary judgment, we draw all reasonable  

                                                                                                                                                                     

 inferences in  favor  of the nonmoving party.14                                                           We can  affirm a grant of summary  

                                                                                                                                                                      

judgment on any basis appearing in the record. 15  

                                                                                                           

                             We review the grant of a motion for judgment on the pleadings de novo.16  

                                                                                                                                                                                             



When reviewing a dismissal granted under Civil Rule 12(c), "we read the facts alleged  

                                                                                                                                                                            



 in the pleadings and the inferences to be drawn therefrom in a light most favorable to the  

                                                                                                                                                                                     

non-movant."17  



               12            Parker  v.  Tomera,  89  P.3d  761,  765  (Alaska  2004).
  



               13            Id.
  



               14            Id .
  



               15            Id.
  



               16            Prentzel  v.  State,  Dep't  of  Pub.  Safety,  53  P.3d  587,  590  (Alaska  2002).  



               17            Id.  at  589  n.1  (citing Hebert  v.  Honest  Bingo,   18  P.3d  43,  46-47  (Alaska  



 2001)).   



                                                                                         -13-                                                                                   7119
  


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

                         We review grants of motions to dismiss under Civil Rule 12(b)(6) de novo,                                                        



                                                                                                                                                        18  

"construing the complaint liberally and accepting as true all factual allegations."                                                                          "In  



                                                                                                                                                             

reviewing a motion to dismiss, we do not consider materials outside the complaint and  

                                19   " 'Motions to dismiss are disfavored,' and before dismissal will be  

its attachments."                                               



granted it must be 'beyond doubt that the plaintiff can prove no set of facts that would  

                                                                                

entitle him or her to relief.' "20   In reviewing motions to dismiss, we view the facts in the  

                                                                                                                                                              



light most favorable to the nonmoving party and draw all reasonable inferences in favor  

                                                                                                                                                          

of that party.21  

              



                         "Interpretation of a statute is a question of law to which we apply our  

                                                                                                                                                 



independent judgment; we interpret the statute according to reason, practicality, and  

                                                                                                                                                             



common sense, considering the meaning of the statute's language, its legislative history,  

                                                                                                                                                      

and its purpose."22  

              



IV.	         DISCUSSION  



                                                                                                                                              

             A.	         The  Superior  Court  Properly  Dismissed  Or  Granted  Summary  

                                                                                                     

                         Judgment On The Abuse Of Process Claims.  



                                                                                                                 

                         The Cornelisons argue that the superior court improperly dismissed their  



                                                                                                                                                               

abuse of process claims on several grounds, including Griffin & Smith's failure to  



                                                                                                                                                 

comply with Board regulations for filing the petition to terminate benefits and Johnson's  



             18          Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res.                                               , 335 P.3d 1088, 1092             



(Alaska 2014) (quoting                       Pedersen v. Blythe                  , 292 P.3d 182, 184 (Alaska 2012)).                    



             19	         Id. (quoting Pedersen, 292 P.3d at 184).  

                                                                                            



             20          Id.  (alteration omitted) (quoting Adkins v. Stansel , 204 P.3d 1031, 1033  

                                                                                                                                              

(Alaska 2009)).  

                 



             21	         Id.  



             22          Louie v. BP Exploration (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)  

                                                                                                                                                         

(citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).  

                                                                                                       



                                                                              -14-	                                                                       7119
  


----------------------- Page 15-----------------------

alleged manipulation of the evidence.                                                                                             Griffin & Smith, TIG, and Dr. Seres all contend                                                                                          



that the Cornelisons' abuse of process claim fails as a matter of law because it fails to                                                                                                                                                                                     



identify any ulterior motive in bringing the Board proceeding. Johnson argues that abuse                                                                                                                                                                                            



of process does not apply to an administrative proceeding.                                                                                                                                               



                                              The Cornelisons claimed in their complaint that the defendants committed                                                                                                                                             



the tort of abuse of process in the course of the petition to terminate Floyd's benefits.                                                                                                                                                                                                                 



They alleged the defendants submitted "junk evidence" to the Board and in so doing                                                                                                                                                                                                 



breached various duties; they also alleged some defendants failed to follow prescribed                                                                               

                                                                                                                                                                                                                    23  But they did not allege  

Board processes, thereby thwarting the purposes of the AWCA.                                                                                                                                                                                                                       



any purpose in bringing the petition except to terminate Floyd's benefits.  

                                                                                                                                                                                                                                                           



                                              In Greywolf v. Carroll we defined abuse of process as "the misuse of a legal  

                                                                                                                                                                                                                                                                                    



process  against  another  primarily  to  accomplish  a  purpose  for  which  it  was  not  

                                                                                                                                                                                                                                                                                          

designed."24  Alaska law requires two elements for such a claim: (1) an "ulterior purpose  

                                                                                                                                                                                                                                                                            



independent from the process" and (2) "a willful act in the use of the process that is not  

                                                                                                                                                                                                                                                                                            

                                                                                                                                                                    25   In Sands v. Living Word Fellowship,  

proper in the regular conduct of the proceeding."                                                                                                                                                                                                              

                                                                                                                        



we emphasized that "a claim for abuse of process is a claim that the defendant misused  

                                                                                                                                                                                                                                                                           



process to attain some separate ulterior purpose independent from the process - for  

                                                                                                                                                                                                                                                                                            



example, to extort the plaintiff and force him to take some action by the use of the  

                                                                                                                                                                                                                                                                                           



                       23                     To the extent the Cornelisons base their complaint on TIG's and Griffin &                                                                                                                                                                         



 Smith's failure to follow the Board's procedural regulations, any failure to comply with                                                                                                                                                                                               

the Board's procedural regulations was a matter for the Board to resolve.                                                                                                                                                                                            We have   

previously recognized the Board's power to waive procedural requirements in its own   

regulations.   See Crawford &Co. v. Baker-Withrow                                                                                                                             , 73 P.3d 1227, 1229 (Alaska 2003).                                                                



                       24                     151 P.3d 1234, 1243 (Alaska 2007) (citing RESTATEMENT   (SECOND)   OF  

                                                                                                                                                                                                     

TORTS  682 (A                                         M. L           AW  INST . 1977)).   

                         



                       25  

                                                                                                                                                                                                                                                                            

                                             Id. (quoting Sands v. Living Word Fellowship, 34 P.3d 955, 961 (Alaska  

2001)).  



                                                                                                                                             -15-                                                                                                                                     7119
  


----------------------- Page 16-----------------------

                                   26  

process as a threat."                    The tort of abuse of process applies to those who "us[e] the                                        



process to put pressure upon the other to compel him to pay a different debt or to take                                           

some other action or refrain from it."                        27  



                                                                                                                                     

                       The Cornelisons implicitly argued that TIG wanted to terminate Floyd's  



                                                                                                                                            

benefits because the benefits were expensive, not because TIG thought Floyd was in fact  



                                                                                                                               

no longer disabled.   But even accepting this claim as true, TIG used the appropriate  



                                                                                                                                          

process - a Board proceeding - to accomplish this goal. The Cornelisons do not point  



                                                                                                                                   

to a "separate ulterior purpose" in bringing the petition to terminate Floyd's workers'  



                                                                                                                                        

compensation, so they have not alleged facts sufficient to support this claim.   Their  



                                                                     

allegation that Johnson hoped to further his business by supplying TIG with an edited  



                                                                                                                                      

video that would result in termination of Floyd's benefits is not the type of ulterior  



                                                                                                                                               

purpose that supports an abuse of process claim.  The required motive in an abuse of  



                                                                                                                                               

process claim is to put pressure on the person who is wrongfully sued to perform or to  

                                                                                                28  The superior court properly  

                                                                                                                                    

                                                                                   

refrain fromperforming an action unrelated to the process. 



dismissed or granted summary judgment on the abuse of process claims.  

                                                                                                               



           B.          The Superior Court Properly Dismissed The UTPA Claims.  

                                                                                                                     



                       The Cornelisons' UTPA claim alleged that the defendants had committed  

                                                                                                                                



"many acts or practices" that "were and are intentional or reckless, unfair and deceptive,  

                                                                                                                                 



immoral, unethical, oppressive, and unscrupulous andoffendpublicpolicyandconstitute  

                                                                                                                                   



an inequitable assertion of power or position."  The superior court relied on different  

                                                                                                                                    



reasons to dismiss or grant summary judgment to the defendants on this claim. It decided  

                                                                                                                                      



that "neither tradenor commerce"was exchanged between Dr. Seres andtheCornelisons  

                                                                                                                               



           26          34  P.3d  at  961.  



           27         Id.  (quoting  RESTATEMENT,  supra  note  24,     682  cmt.  b).  



           28         Id.  



                                                                     -16-                                                                7119
  


----------------------- Page 17-----------------------

and that the Cornelisons "did not purchase or lease any goods or services" from either     



Griffin & Smith or Johnson, and thus the UTPA did not apply. As to TIG, it decided that                                                                                           



the UTPA expressly exempted the insurance company.                                                                      



                             Alaska   Statute   45.50.481(a)(3)   exempts   from   the   UTPA   "an   act   or  



transaction regulated under AS 21.36 . . . or a regulation adopted under [its] authority."                                                                                                  



Alaska   Statutes   21.36   regulates   "Act[s]"   and   "trade   practice[s]   in   the   business   of  

                                                                                                                                                                      29  Alaska  

insurance,"including prohibitions on "unfair or deceptiveact[s]or practice[s]."                                                                                             



Statute 21.36.125(a) specifically prohibits a number of acts or practices in the settlement  

                                                                                                                                                                    



of insurance claims, like misrepresentation of facts and failure to act in good faith.  We  

                                                                                                                                                                                  



agree with Griffin & Smith that the Cornelisons' claim is essentially one for unfair  

                                                                                                                                                                            



claims  settlement,  which  falls  within  the  AS  45.50.481(a)(3)  exemption.                                                                                                  The  

                                                                                                                                                                              



Cornelisons alleged the defendants acted in concert to misrepresent Floyd's physical  

                                                                                                                                                                        



capacities, delayed the proceedings before the Board in an attempt to gain an advantage,  

                                                                                                                                                                   



and  refused  to  acknowledge  their  mistakes  when  confronted  by  the  Cornelisons.  

                                                                                                                                                                                            



Because this alleged conduct falls within the insurance industry exemption to the UTPA,  

                                                                                                                                                                           



the superior court properly dismissed the UTPA claim.  

                                                                                                                        



              C.	            The  Superior  Court  Properly  Dismissed  The  Interference  With  

                                                                                                                                                                             

                             Contract Claims.  

                                                   



                             The Cornelisons alleged a cause of action they called tortious interference  

                                                                                                                                                                



with their financial rights and interests. As part of this cause of action, they alleged they  

                                                                                                                                                                                 



had "an established and continuing financial property right and interest" in the PTD  

                                                                                                                                                                               



benefits Floyd received under the Board's 2001 order.   They alleged the defendants  

                                                                                                                                                                  



interfered with this property right through the investigation, the medical evaluation, and  

                                                                                                                                                                                  



the subsequent filing of the petition to terminate Floyd's benefits.  

                                                                                                                                               



              29             AS  21.36.010.  



                                                                                        -17-	                                                                                         7119  


----------------------- Page 18-----------------------

                         The  superior  court  analyzed  this  claim  as  either  a  tortious  interference  with  



contract  claim  or  a  tortious  interference  with  a  prospective  economic advantage  claim.   



We   consider  the   Cornelisons' claim  to  be   one   for  tortious   interference  with   contract  

because  no  prospective  business  relationship  is  at  issue  in  this  case.30  



                         The   tort   of   intentional   interference   with   contractual  relations   has   six  



elements:     "(1)  an  existing   contract   between    [the   plaintiff]   and   a   third   party;  



(2)   defendant's  knowledge   of  the   contract   and   intent  to   induce   a  breach;   (3)  breach;  



(4)  wrongful  conduct  of  the  defendant  causing  the  breach;  (5)  damages;  and  (6)  absence  

of   privilege   or  justification   for   the   defendant's   conduct."31  

                                                                                                                    The   Cornelisons'   claim  



appears  to  be  based  on  their  theory  that  Floyd  is  a  third-party  beneficiary  of  the  insurance  



contract   between   his   former   employer   and   the   employer's   workers'   compensation  



insurer.   



                         But  even  if  we  were  to  accept  this  theory  -  and  we  do  not  now  decide  the  



question  whether  workers'  compensation  recipients  are  third-party  beneficiaries  of  the  



insurance  contract  between  the  insurer  and  employer  -  there  was  never  a  breach  of  the  

                                                                                                                                                     32   As a  

contract  because  Floyd  continued  to  received  benefits  throughout  the  litigation.                                                                        



             30          See Odom v. Fairbanks Mem'l Hosp.                                      , 999 P.2d 123, 132 (Alaska 2000)                       



(setting out the elements of tortious interference with a prospective economic advantage,                                                      

including the existence of a prospective business relationship).                              



             31          K &K Recycling, Inc. v. Alaska Gold Co., 80 P.3d 702, 716 (Alaska 2003)  

                                                                                                                                                        

(citing Odom v. Lee, 999 P.2d 755, 761 (Alaska 2000)).  

                                                                                                           



             32          We  recognize,  as  the  Cornelisons  note,  that  TIG  could  not  simply  

                                                                                                                                                     

controvert Floyd's benefits and unilaterally cease payment because they were being paid  

                                                                                                                                                           

pursuant to a Board order.  See Underwater Constr., Inc. v. Shirley, 884 P.2d 156, 161  

                                                                                                                                                            

(Alaska  1994)  (holding  that  when  benefits  are  paid  pursuant  to  a  Board  order  the  

                                                                                                                                                             

employer "must first seek the approval of the Board" before modifying or terminating  

                                                                                                                                        

benefits).  But the reason behind the continued payments is immaterial to the question  

                                                                                                                                       

                                                                                                                                         (continued...)  



                                                                             -18-                                                                        7119
  


----------------------- Page 19-----------------------

result, we agree with the superior court that the Cornelisons failed to set out a prima facie                                                                                                             



case of interference with contract rights.                                                             Therefore this cause of action was properly                                              



dismissed.  



                 D.	             The   Superior   Court   Properly   Dismissed   Or   Granted   Summary  

                                 Judgment On The Common Law Fraud Claims.                                                                    



                                 The Cornelisons alleged common lawfraud against the defendants, but this                                                                                                    



cause of action fails as a matter of law.  The elements of common law fraud are "(1) a                                                                                                        



false   representation   of   fact;   (2)   knowledge   of   the   falsity   of   the   representation;  



                                                                                                                                                                                              33  

(3)   intention to induce reliance; (4) justifiable reliance; and (5) damages."                                                                                                                                   

                                                                                                                                                                                                       "As a  



                                                                         

general rule, in common law fraud, a person cannot justifiably rely on a statement she  



                                                     34  

                                                                                                                                                                                                        

knows  to  be  false."                                          The  Cornelisons  alleged  that  the  defendants  made  false  



                                                                                                                                                                                              

representations  about  Floyd's  physical  capabilities  in  the  context  of  the  workers'  



                                                                                                                                                                                                        

compensation case; they also contended that the statements in Dr. Seres's reports about  



                                                                                                                                                                                                        

possible drug diversion and Social Security fraud, with the implication that Dr. Seres  



                                                                                                                                                                                                             

would report the suspected fraud, were misrepresentations. The Cornelisons alleged that  



                                                                                                                                                                                                               

the defendants "launch[ed] and orchestrate[d] an extreme and outrageous offense" on  



                                                                                                                                                                                                 

them  and  "perpetuate[d]  a  fraud  upon"  both  them  and  the  Board  by  making  



                                                                                

misrepresentations about them.  



                                                                                                                                                                                                                 

                                 The misrepresentations about Floyd's physical capabilities cannot serve as  



                                                                                                                                                                                       

a basis of a misrepresentation claim by the Cornelisons.  Presumably the Cornelisons  



                 32              (...continued)  



                                                                                     

whether there was a breach of the contract.  



                 33              Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska 2010) (citing  

                                                                                                                                                                                                     

Jarvis v. Ensminger                               , 134 P.3d 353, 363 (Alaska 2006)).                                   



                 34              Id. (citing 2 DAN  B. D                                OBBS, T            HE  LAW OF  TORTS    474 (2001)).                            

                                                              



                                                                                                      -19-	                                                                                              7119
  


----------------------- Page 20-----------------------

were aware these representations were false; if so, they could not have justifiably relied                                                                                                                                                                                                                       



on those representations as a matter of law.                                                                                                                       Without this required element of justifiable                                                                                  



reliance, their common law fraud claim was inadequate, and the superior court correctly                                                                                                                                                                                                              



dismissed the common law fraud claim.                                                                                          



                                                   But    the    Cornelisons    also    appear   to   advance    a    second    theory    of  



misrepresentation:   they apparently also allege that (1) Dr. Seres and Griffin & Smith                                                                                                                                                                                                                        



misrepresented their intention to report Floyd to Social Security for fraud; (2) Dr. Seres                                                                                                                                                                                                                        



and Griffin & Smith knew they were not going to report fraud but falsely implied to the                                                                                                                                                                                                                                    



Board and the Cornelisons that they would do so; (3) they intended this threat of a fraud                                                                                                                                                                                                                       



report to intimidate the Cornelisons and possibly cause the Cornelisons not to contest the                                                                                                                                                                                                                                  



petition to terminate benefits; (4) the Cornelisons justifiably relied on the statement of   



intent; and (5) the Cornelisons were damaged.                                                                                             



                                                   But   the   Cornelisons   cannot   show   justifiable   reliance   on   this   asserted  



misrepresentation either.                                                                      According to the Restatement, "[t]he recipient of a fraudulent                                                                                                                              



misrepresentation can recover against its maker for [his] pecuniary loss resulting from                                                                                                                                                                                         



 [the misrepresentation] if, but only if, (a) he relies on the misrepresentation                                                                                                                                                                                                          in acting or                        

                                                                                                                                                                                                                               35         The Cornelisons did not  

refraining from action                                                                , and (b) his reliance is justifiable."                                                                                                                                                                                             



allege they suffered a loss because of any action they took or failed to take in reliance on  

                                                                                                                                                                                                                                                                                                                             



the misrepresentation.  They appear to allege they suffered emotional distress because  

              



they were concerned that Dr. Seres or Griffin & Smith would report Floyd for Social  

                                                                                                                                                                                                                                                                                                               



 Security fraud; they also have alleged damages based on the time and energy expended  

                                                                                                                                                                                                                                                                                                  



in this lawsuit and in opposing the petition to terminate.  But as we understand their  

                                                                                                                                                                                                                                                                       



argument, the emotional distress resulted from the misrepresentation itself, not from  

                                                                                                                                                                                                                                                                                                                   



 some action they took in reliance on it. And the action they took - vigorously opposing  

                                                                                                                                                                                                                                                                                                    



                         35                        RESTATEMENT,  supra  note  24,     537  (emphasis  added).  



                                                                                                                                                            -20-                                                                                                                                                                     7119  


----------------------- Page 21-----------------------

the petition to terminate benefits and suing the defendants in this case - does not show                                                                                                                                                                                                



 anyrelianceon                                      the statements "in Dr. Seres's reports suggesting socialsecurity fraud and                                                                                                                                                                



Dr. Seres's duty to report it."                                                                        To the contrary, it indicates that the Cornelisons did not                                                                                                                              



believe the truth of the statements and wanted to clear their name.                                                                                                                                                                   The superior court   



thus correctly dismissed or granted summary judgment on the common law fraud claim.                                                                                                                                                                                                  



                       E.	                    The Superior Court Properly Dismissed The Professional Negligence                                                                                                                                                   

                                              Claims.  



                                              TheCornelisonsbroughtaprofessionalnegligenceaction against Dr. Seres,                                                                                                                                                                   



 TIG, and Johnson, alleging these defendants had not exercised the required level of skill                                                                                                                                                                                                 



                                                                                                                                                                                                                                                                                                     36  

that a reasonably prudent professional in their respective professions would exercise.                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                                                        

 The superior court dismissed most of these claims because none of the defendants owed  



                                                                                                                                                                                                                                                     

 a legal duty to the Cornelisons.   It dismissed the claim against TIG based on  O.K.  



                                                                                                                                                                                                                                                                                        

Lumber Co. v. Providence Washington Insurance Co., where we held that a third party  



                                                                                                                                                                                                                                                                           

who is injured by a tortfeasor does not have a cause of action for breach of the covenant  



                                                                                                                                                                                                                  37  

                                                                                                                                                                                                                         

 of good faith and fair dealing against the tortfeasor's insurer. 



                                                                                                                                                                                                                                                                                    

                                              "Aprofessionalmalpracticeaction involves 'aprofessional'sallegedbreach  



                                                                                                                                                                                                                                                                 

 of  a  duty  of  due  care  which  was  implied  by  law  as  a  result  of  a  contractual  



                                                    38  

                                                                                                                                                                                                                                                                                             

undertaking.' "                                              In this case, the Cornelisons did not have a contract with Johnson, and  



                                                                                                                                                                                                                                                             

thus  the  superior  court  determined  they  had  no  cause  of  action  for  professional  



                       36                     Itdoes                 not appear that theCornelisons                                                                           madeaspecificclaimofprofessional                                                  



negligence against Griffin & Smith in the complaint; Griffin & Smith's name comes up                                                                                                                                                                                                             

 only in allegations that TIG did not adequately control the firm.                                                                                                                                                                  It thus appears that                                    

 Griffin & Smith is correct that there was no professional negligence claim against it.                                                                                                                                                                                                              



                       37                     759 P.2d 523, 525-26 (Alaska 1988).  

                                                                                                                                                        



                       38                     Breck v. Moore, 910 P.2d 599, 603 (Alaska 1996) (quoting Lee Houston  

                                                                                                                                                                                                                                                                            

 & Assocs., Ltd. v. Racine, 806 P.2d 848, 853 (Alaska 1991)).  

                                                                                                                                                                                         



                                                                                                                                              -21-	                                                                                                                                      7119
  


----------------------- Page 22-----------------------

malpractice against him.                                               The court also decided there was no attorney-client or doctor-                                                                                            



patient relationship between the Cornelisons and Griffin & Smith or Dr. Seres, so there                                                                                                                                                



could be no professional liability.                                                              



                                      Our  decision   in   Smith   v. Radecki                                                              held   that an                        employer's doctor                                      in   a  



workers' compensation casegenerally does                                                                                 not enter intoaphysician-patientrelationship                                                



with the injured worker; we also acknowledged a "growing body of case law from other                                                                                                                                                   



states" that recognizes independent medical examiners may have limited duties to those                                                                                                                                                



                                        39                                                      40  

                                                 But as in Smith,                                     these limited duties are not implicated here.  The  

they examine.                                                                                                                                                                                                                           



superior  court  thus  correctly  dismissed  the  professional  negligence  action  against  

                                                                                                                                                                                                                               



Dr.  Seres.                         Because  any  professional  malpractice  action  against  TIG  is  barred  by  

                                                                                                                                                                                                                                             

AS 23.30.05541  and no contractual duty that gave rise to a duty of care existed between  

                                                                                                                                                                                                                              



the Cornelisons and the other defendants here, the superior court properly dismissed the  

                                                                                                                                                                                                                                             



professional malpractice claims.  

                                                                       



                   39                 238 P.3d 111, 115-17 (Alaska 2010).                                                    



                   40                Id.  at 116-17. TheCornelisonsapparentlycontendthatDr.                                                                                                             Seres had a duty  



to them in his role as an employer's medical evaluator apart from any duty that might  

                                                                                                                                                                                                                                    

arise from a physician-patient relationship.                                                                                    The contractual relationship that might                                                             

underlie this claim is not entirely clear, but appears to be related to their argument that                                                                                                                                               

they have some type of third-party beneficiary status under the workers' compensation                                                                                                                         

insurance contract.  

                                                        



                   41                 AS 23.30.055  ("The liability of an employer prescribed in AS 23.30.045  

                                                                                                                                                                                                                        

is exclusive and in place of all other liability of the employer . . . .").  See Stafford v.  

                                                                                                                                                                                                                                                

 Westchester  Fire  Ins.  Co.  of  N.Y.,  526  P.2d  37,  43  (Alaska  1974)  (holding  that  

                                                                                                                                                                                                                                         

"intentional torts committed in connection with the investigation of claims and payment  

                                                                                                                                                                                                                             

thereof" are not barred by the AWCA's exclusive remedy provision (emphasis added)),  

                                                                                                                                                                                                                              

overruled on other grounds by Cooper v. Argonaut Ins. Cos., 556 P.2d 525 (Alaska  

                                                                                                                                                                                                                              

 1976).  



                                                                                                                     -22-                                                                                                              7119
  


----------------------- Page 23-----------------------

                 F.	             Summary Judgment On Or Dismissal Of The Negligent Infliction Of                                                                                                               

                                 Emotional Distress Claims Was Error.                                                 



                                 The   Cornelisons   alleged   that   the   defendants   negligently   caused   them  



"severeemotional distress,unnecessary pain and suffering[,]andinconvenience"bytheir                                                                                                                        



conduct during the workers' compensation proceedings.                                                                                          In their complaint they also                                 



alleged that the defendants had caused them "physical distress" and "great physical . . .                                                                                                                         



harm." We have held that "there is no recovery of damages for emotional distress where                                                                                                                 



the emotional distress arises from negligent conduct and is unaccompanied by physical                                                                                                            



                   42  

injury."                                                                                                                                                                                                     

                          We have recognized two exceptions to this rule:  the bystander exception and  



                                                                            43  

                                                   

the preexisting duty exception. 



                                                                                                                                                                       

                                 The superior court granted summary judgment to Dr. Seres on the NIED  



                                                                                                                                                                                                             

claim and dismissed the claim as to the other defendants on various grounds. It ruled that  



                                                                                                                                                                                                                 

the claim against TIG was barred by AS 23.30.055, the exclusive remedy provision of  



                                                                                                                                                                                                        

the AWCA. It granted judgment on the pleadings to Griffin & Smith on the NIED claim  



                                                                                                                                                                                                        

for several reasons, concludingfirst thattheCornelisons had not alleged a physical injury  



                                                                                                                                                                                                          

or a special duty that would exempt them from pleading a physical injury.   It then  



                                                                                                                                                                                                       

decided that AS 23.30.055 applied to Griffin & Smith, barring any "claim for NIED  



                                                                                                                                                                                            

arising out of . . . untimely payments."   The court also decided that AS 23.30.130  

"foreclose[d] tort liability based on petitions for modification."44  The court dismissed  



                 42              Chizmar v. Mackie                              , 896 P.2d 196, 201 (Alaska 1995) (citing                                                                Hancock v.   



Northcutt, 808 P.2d 251, 257 (Alaska 1991)).                                                   



                 43	             Kallstrom v. United States, 43 P.3d 162, 165-66 (Alaska 2002).  

                                                                                                                                                                              



                 44              The superior court did not explain why it reached this conclusion, and  

                                                                                                                                                                                                            

Griffin & Smith has not argued that we should affirm the grant of judgment on the  

                                                                                                                                                                                                              

pleadings on this ground.  While AS 23.30.130 permits an employer to bring a petition  

                                                                                                                                                                                                  

for modification of a Board award, the Cornelisons' complaint concerned the manner in  

                                                                                                                                                                                                                 

                                                                                                                                                                                     (continued...)  



                                                                                                      -23-	                                                                                              7119
  


----------------------- Page 24-----------------------

theNIEDclaimagainst Johnson under Rule 12(b)(6), becausetheCornelisons "offer[ed]                                                                                                                                 



no facts to show that physical injury resulted from the conduct of defendants." The court                                                                                                                                      



granted summary judgment to Dr. Seres, concluding that he did not owe the Cornelisons                                                                                                                        



a   preexisting  duty   and   that   he   was   shielded   from suit                                                                                         by   AS   23.30.095(k),   which  



immunizes   a   second   independent   medical   evaluation   physician   from   damages   for  



providing an opinion in a workers' compensation case.                                                                                                    



                                     1.                Dr. Seres   



                                     While we agree with the superior court that Dr. Seres did not owe the                                                                                                                          



Cornelisons a preexisting duty that would excuse them from pleading a physical injury,                                                                                                                                     



we    disagree    that    AS    23.30.095(k)    shields    Dr.    Seres    from    liability.       Alaska  



Statute   23.30.095(k)   sets   out   the   process   the   Board   can   use   to   order  a   second  



independent   medical   evaluation.     It   permits   the   Board   to   "require   .   .   .   a   second  



independent medical evaluation" when                                                                            there is a dispute "between                                                      the   employee's  

                                                                                                                                                                                                       45   The second  

attending physician and the employer's independent medical evaluation."                                                                                                                                                   



independent  medical  evaluation  must  be  "conducted  by  a  physician  or  physicians  

                                                                                                                                                                                                               

selected by the [B]oard" and paid for by the employer.46                                                                                                     The statute also provides, "A  

                                                                                                                                                                                                                                     



person may not seek damages from an independent medical examiner caused by the  

                                                                                                                                                                                                                                    



                  44                 (...continued)  



                                                                                                                                                                                                          

which TIG and Griffin & Smith brought and prosecuted the petition.  The Cornelisons'  

                                                                                                                                                                                                                                       

complaint  in  essence  alleged  that  the  defendants  committed  fraud  on  the  Board  in  

                                                                                                                                                                                                                                                

bringing the petition because the defendants submitted evidence they knew was false.  

                                                                                                                                                                                                                              

We  see  nothing  in  the  language  of  AS  23.30.130  that  prohibits  lawsuits  in  these  

circumstances.  



                  45                 AS 23.30.095(k).  

                                                                                      



                  46                Id.  



                                                                                                                 -24-                                                                                                           7119
  


----------------------- Page 25-----------------------

rendering of an opinion or providing testimony                                         under this subsection                  , except in the event         

of fraud or gross incompetence."                              47  



                         Dr. Seres did not render an opinion as an independent medical examiner  

                                                                                                                                                 



under AS 23.30.095(k); rather he was selected by the insurance carrier, its adjuster, or  

                                                                         

its attorney to perform a medical evaluation of Floyd under AS 23.30.095(e).48   Because  

                                                                                                                                                   



Dr. Seres's opinion was not rendered under AS 23.30.095(k), the immunity provided in  

                                                                                                                                                               

that  subsection  does  not  shield  him  from  liability  based  on  his  written  reports.49  

                                                                                                                                                                    



             47          Id.  (emphasis  added).  



             48  

                         Alaska Statute 23.30.095(e) requires an employee "at reasonable times                                                          

during   the   continuance   of   the   disability   .   .   .   [to]   submit   to   an   examination   by   a  

                                       

physician . . . of the employer's choice."  If the opinion rendered under subsection (e)  

                                                                                                                                                          

conflicts with the opinion of the employee's physician, only then may the Board may  

order an evaluation under subsection (k).                                      AS 23.30.095(k).                   



             49          In addition to AS 23.30.095(k)'s plain language, the statute's legislative  

                                                                                                                                               

history supports our interpretation that this subsection applies only to physicians acting  

                                                                                                                                                       

as second independent medical examiners.  A sectional analysis of the legislation, with  

                                                                                                                                                          

the  title  "Board  IME  [Independent  Medical  Examiner],"  stated  that  subsection  (k)  

                                                                                                                                                            

"establishes a presumption that the [B]oard's independent medical examiner's opinion  

                                                                                                                                                    

is correct and provides the examiner with protection from damages for rendering an  

                                                                                                                                                             

opinion or giving testimony." H. Judiciary Comm., Sectional Analysis of House CS for  

                                                                                                                                                             

CS for SB 322 (Labor & Commerce)  18 (1988) (emphasis added).  (The provision  

                                                                                                                                                

creating a presumption that the independent medical examiner's opinion was correct was  

                                                                                                                                                           

removed from the legislation before it was enacted.  Ch. 79,  18, SLA 1988.)   The  

                                                                                                                                                          

sectional analysis differentiated between amendments affecting subsections (e), which  

                                                                              

concerns  an  employer's  medical  examiner,  and  (k),  which  concerns  the  Board's  

                                                                                                                                                  

independent medical examiner.  Sectional Analysis, supra,  15, 18.  

                                                                                                                                    



                         We recognize that in the superior court the Cornelisons appeared to agree  

                                                                                                                                                        

that AS 23.30.095(k) applies to Dr. Seres. Even if parties stipulate to a legal proposition,  

                                                                                                                                            

that stipulation is not binding on this court.  Cf. Dresser Indus., Inc. v. Alaska Dep't of  

                                                                                                                                                              

Labor, 633 P.2d 998, 1004 (Alaska 1981) (quoting S.F. Lumber Co. v. Bibb, 73 P. 864,  

                                                                                                                                                          

                                                                                                                                        (continued...)  



                                                                             -25-                                                                       7119
  


----------------------- Page 26-----------------------

Although Dr. Seres may not have had a special duty to the Cornelisons that would excuse                                                                                                                                         



themfromalleging physical injury, they adequately alleged physical injury, as explained                                                                                                                                



more fully in the following subsection.                                                                         We therefore reverse the summary judgment                                  



entered in favor of Dr. Seres on the NIED claim and remand for further proceedings.                                                                                                                       



                                     2.                 Griffin & Smith               



                                     The superior court granted Griffin & Smith judgment on the pleadings                                                                                                             



under Rule 12(c) in part because the Cornelisons had not pleaded a physical injury.                                                                                                                                                                  



While we have not specified                                                           the type of injury                                     that  constitutes physical injury                                                           for  



purposes of an NIED claim, in                                                        Hancock v. Northcutt                                       , we relied on a leading torts treatise                                       

for the "general rule" that physical injury is required for an NIED claim.                                                                                                                                  50  According  



                                                                                                                                                                                                                                    

to that treatise, physical injury for purposes of an NIED claim can include illness or other  

                                                                                                                                        51      The Restatement (Second) of Torts  

                                                                                                                                                                                                                                   

                                                                                                                 

physical consequences of the emotional distress. 



alsorecognizes that"long continued nauseaor headaches mayamount tophysical illness,  

                                                                                                                                                                                                                               

which is bodily harm" and "even long continued mental disturbance" may be an illness.52  

                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                      

A defendant can prevail on a Rule 12(c) motion "only if [the plaintiff's] pleadings  



                   49                 (...continued)  



                                                                                                                                                                                                                                       

865 (Cal. 1903)) (holding that stipulations as to the law do not bind the court).  At oral  

                                                                                                                                                                                                                                           

argument  before  us,  Dr.  Seres  could  offer  no  authority  to  support  application  of  

                                                                                                                                                                                           

AS 23.30.095(k) to an employer's independent medical examiner.  



                   50                 808 P.2d 251, 257 (Alaska 1991) (citing W. P                                                                                   ROSSER  & W. K                              EETON, T                  HE  

                                                                                                                                                        

LAW OF TORTS   54 (5th ed. 1984)).                                              

                        



                   51                W.  PROSSER  & W. K                                       EETON,  supra  note 50,  54,                                                  quoted  in  Hancock, 808   



P.2d at 257.         



                   52                RESTATEMENT, supra note 24, at  436A cmt. c.  

                                                                                                                                                                        



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----------------------- Page 27-----------------------

                                                                                                                           53  

contain   no   allegations   that   would   permit   recovery   if   proven."                                                    The   Cornelisons'  



allegations that they suffered great physical harm and physical distress are adequate at                                                                         

the pleading stage to set out the physical injury element of an NIED claim.                                                                  54  



                                                                                                                                                            

                         Griffin & Smith denied in its answer the Cornelisons' allegations that they  



                                                                                                                                                                

suffered great physical harm and physical distress.  We have previously stated that "a  



                                                                                                                                                                

Rule 12(c) motion 'only has utility when all material allegations of fact are admitted in  

                                                                                                55    Material issues of fact remained  

                                                                                                                                         

the pleadings and only questions of law remain.' " 



after  Griffin  &  Smith  filed  an  answer,  including  whether  the  Cornelisons  suffered  

                                                                                                                                                    



physical injury, so the superior court erred in granting judgment on the pleadings on this  

                                                                                                                                                             



basis.  



                         On appeal, Griffin & Smith also contends that AS 23.30.055, the exclusive  

                                                                                                                                                  



remedy provision of the AWCA, shields it from liability.  But AS 23.30.055 provides  

                                                                                                                               



protection  from negligence  claims to an  employer  and  the injured worker's fellow  

                                                                                                                                                       



employees, not to an employer's attorney.  Suits against third parties are not barred by  

                                                                                                                                                               

                                                               56   and Griffin & Smith is not Floyd's employer for  

the exclusive remedy provision,                                                                                                                               

                                            



purposes of the AWCA.   Alaska Statute 23.30.055 provides in pertinent part, "The  

                                                                                                                                                          



             53          Prentzel v. State, Dep't of Pub. Safety                                   , 53 P.3d 587, 590 (Alaska 2002)                      



(citing  Hebert v. Honest Bingo                           , 18 P.3d 43, 47 (Alaska 2001)).                



             54          Cf. McGrew v. State, Dep't of Health &Soc. Servs., Div. of Family &Youth  

                                                                                                                                                         

Servs., 106 P.3d 319, 324-25 (Alaska 2005) (holding that allegations that plaintiffs  

                                                                                                                                                  

suffered severe distress, personal injury, personal humiliation, mental anguish, pain and  

                                                                                                                                                             

suffering adequately pleaded elements of an IIED claim).  

                                                                                                



             55          Hebert, 18 P.3d at 46 (Alaska 2001) (quoting 5A CHARLES  ALAN  WRIGHT  

                                                                                                                      

& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE   1367 (2d ed. 1990)).                                                                       

                                                                                            



             56          AS 23.30.015.  See also, e.g., Suave v. Winfree, 907 P.2d 7 (Alaska 1995)  

                                                                                                                                                         

(permitting negligence action against co-employees who were also owners of building  

                                                                                                                                                    

where injury occurred).  

                          



                                                                              -27-                                                                        7119
  


----------------------- Page 28-----------------------

liability of an employer prescribed in AS 23.30.045 is exclusive and in place of all other                                                                                                                                                                                                        



liability of the employer and any                                                                                              fellow employee to the employee . . . ."                                                                                                                 Alaska  



 Statute 23.30.045(a) provides that "[a]n employer is liable for and shall secure the                                                                                                                                                                                                                   



payment to employees of the compensation due under [certain sections of the AWCA]."                                                                                                                                                                                                                                     



Griffin & Smith is not liable for the compensation due Floyd; TIG, as the compensation                                                                                                                                                                             



carrier for his former employer, is liable for that compensation.                                                                                                                                                                 Griffin & Smith points                                      



to no authority supporting its contention that the employer's attorney is protected by the                                                                                                                                                                                                                

                                                                                                                                                                                                      57          The superior court erred in  

exclusive remedy provision, and we have found none.                                                                                                                                                                                                                                                         



granting  judgment on the pleadings to  Griffin & Smith on  this basis as well.                                                                                                                                                                                                                         We  

                                                                                                                                                                                                                                                                                                     



therefore reverse the superior court's grant to Griffin & Smith of judgment on the  

                                                                                                                                                                                                                                                                                                        



pleadings as to the NIED claim.  

                                                                                            



                                                3.                     Johnson  



                                                The superior court dismissed the NIED claim against Johnson pursuant to  

                                                                                                                                                                                                                                                                                                              



Rule 12(b)(6); it wrote that the Cornelisons "offer[ed] no facts to show that physical  

                                                                                                                                                                                                                                                                                      



injury resulted from the conduct of defendants."  When a court considers a motion to  

                                                                                                                                                                                                                                                                                                             



dismiss  under  Rule  12(b)(6),  it  must  accept  as  true  all  factual  allegations  in  the  

                                                                                                                                                                                                                                                                                                       

complaint.58                                    As set out above, the Cornelisons adequately alleged that the defendants'  

                                                                                                                                                                                                                                                                          



                        57                      The superior court considered that Griffin & Smith "acted on behalf of                                                                                                                                                                                      



TIG" and that "TIG may have a pseudo-fiduciary duty to timely pay the PTD benefits."                                                                                                                                                                                                                                    

It concluded that AS 23.30.055 protected Griffin & Smith from an NIED claim "arising                                                                                                                                                                                                    

out of . . . untimely payments."                                                                                  Although the Cornelisons indicated that TIG was not                                                                                                                                    

always timely in paying benefits, that was not the basis of their NIED claim.                                                                                                                                                                                                             In any   

event, AS 23.30.155(f) imposes a penalty when Board-ordered compensation is paid                                                                                                                                                                                                                    

untimely.  



                        58                     Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res., 335 P.3d 1088, 1092  

                                                                                                                                                                                                                                                                                                 

(Alaska 2014) (quoting Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012)).  

                                                                                                                                                                                                                                                               



                                                                                                                                                   -28-                                                                                                                                            7119
  


----------------------- Page 29-----------------------

conduct caused them physical injury.                                                        The superior court's order dismissing the NIED                                                         



claim against Johnson was thus erroneous.                                     



                                4.	              TIG  



                                On   appeal   the   Cornelisons   do   not   assert   that   the   superior   court   was  



mistaken in its determination that the exclusive liability provision of the AWCA barred                                                                                                           



                                                                                                                                                    59  

the NIED claim against TIG because it is a negligence claim.                                                                                                                                             

                                                                                                                                                           They have waived any  



                                                                                                                                                                              60  

                                                                                                                                                                                                   

argument that the court erred in dismissing the NIED claim against TIG,                                                                                                            so we affirm  



                                                                                                  

the dismissal of the NIED claim against TIG.  



                                                                                                                                                                                              

                G.	             The Superior Court Did Not Address The Statutory Fraud Claims,  

                                                                                                

                                Which We Remand For Consideration.  



                                                                                                                                                                               

                                On appeal to this court, the Cornelisons contend that the superior court  



                                                                                                                                                                                                   

failed to recognize the duties imposed on the defendants by AS 23.30.250(a), which  



                                                                                                                                                                                                           

permits  a  civil  action  against  anyone  who  knowingly  makes  a  false  statement  or  



                                                                                                                                                                                                            

representation to the Board or knowingly aids another in making a false statement or  



                                                                                                                                                                                             

submission related to a workers' compensation benefit.  The appellees offer different  



                                                                                                                                                                                                   

responses to this contention:  Dr. Seres does not cite the statute; Griffin & Smith makes  



                                                                                                                                                                                                          

substantive arguments that it did not violate the statute; and both Johnson and TIG say  



                                                                                                                                                                                                              

the issue is raised  for  the first time on  appeal and  thus waived  but  also  provide a  



                                                                                                                                                                                                  

substantive argument that they did not violate the statute.  TIG maintains that the statute  



                59              AS 23.30.055;                        see Stafford v. Westchester Fire Ins. Co. of N.Y.                                                                   , 526 P.2d     



37, 43 (Alaska 1974) (holding that "intentional torts committed in connection with the                                                                                                                    

investigation of claims and payment thereof" are not barred by the AWCA's exclusive                                                                                                        

remedy   provision),  overruled   on   other   grounds   by   Cooper   v.   Argonaut   Ins.   Cos.,  

556 P.2d 525 (Alaska 1976).                            



                60              See Smallwood v. Cent. Peninsula Gen. Hosp., Inc., 227 P.3d 457, 460  

                                                                                                                                                                                                        

(Alaska 2010) ("Failure to argue a point of law constitutes abandonment." (citing State  

                                                                                                                                                                                                      

v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980))).  

                                                                                                                                              



                                                                                                    -29-	                                                                                             7119
  


----------------------- Page 30-----------------------

  only   came   up   in   the   context   of   a   discussion  in   the   superior   court   about   primary  



jurisdiction "over civil tort claims arising from alleged misrepresentations made during                                                                                                                                                                                                                                                                                                                                                                                                 



  a workers' compensation benefits investigation and termination proceeding."                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                We disagree with the contention that the statutory fraud claim was raised                                                                                                                                                                                                                                                                                                                                    



  for the first time on appeal.                                                                                                                                     The Cornelisons cited the statute in several contexts in the                                                                                                                                                                                                                                                                              



  superior   court,   including   the   discussion   related   to   primary   jurisdiction   and   their  



  opposition to Dr. Seres's motion for summary judgment.                                                                                                                                                                                                                                                                                         Both Griffin & Smith and the                                                                                                                                  



  adjusters argued with regard to primary jurisdiction that AS 23.30.250(a) required the                                                                                                                                                                                                                                                                                                                                                                                                                      



  superior court, rather than the Board, to hear any fraud claims in this case.                                                                                                                                                                                                                                                                                                                                                                                            And the   



  superior court, in denying a stay of the civil suit, cited AS 23.30.250(a), writing that                                                                                                                                                                                                                                                                                                                                                                                                               



  "plaintiffs'   claim   relating  to   false   statements   must   be   brought   before   this   court   as  



  opposed to the [Board]."                                                                                                                            



                                                                                 The Cornelisons' pleadings alleged that the defendants were aware that the                                                                                                                                                                                                                                                                                                                                                    



  information they were submitting to the Board was false or misleading - that the                                                                                                                                                                                                                                                                                                                                                                                                                          



  defendants   were   perpetrating   a   fraud   on   the   Board.     They   alleged   the   defendants  



 presented   "tainted,   dishonest"   and   "outrageously   contrived"   evidence   and   made  



  "knowing . . . misstatements [or] misrepresentations" to the Board for the purpose of                                                                                                                                                                                                                                                                                                                                                                                                                            



 terminating Floyd's benefits. They have consistently argued that the allegation of Social                                                                                                                                                                                                                                                                                                                                                                                                  



  Security fraud in Dr. Seres's report to the Board was false and served no legitimate                                                                                                                                                                                                                                                                                                                                                                              



 purpose in the Board proceedings.                                                                                                                                                                            They contend on appeal, as they did in the superior                                                                                                                                                                                                               



  court, that Griffin & Smith and Dr. Seres knew the allegation of Social Security fraud                                                                                                                                                                                                                                                                                                                                                                                                        



 was untrue, pointing to Dr. Seres's deposition testimony that he had communicated with                                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         61  

  a "legal beagle[]" and together they decided not to make a report to Social Security.                                                                                                                                                                                                                                                                                                                                                                                                                                                



                                         61                                      The timing of the discussion between Dr. Seres and the legal representative                                                                                                                                                                                                                                                                                  



  is not clear from the record.                                                                                                                                          



                                                                                                                                                                                                                                                      -30-                                                                                                                                                                                                                                                                       7119  


----------------------- Page 31-----------------------

Additionally, as the Cornelisons point out, Robert                                        Griffin signed an affidavit in theBoard                    



proceeding   stating   that   neither   the   adjuster   nor  Floyd's   former   employer   had   ever  

                                                                                                                                62   Implicit in the  

"asserted a claim of fraud" or "a claim of drug diversion in this case."                                                                                  



Cornelisons' argument is the contention that TIG and Griffin & Smith must have known  

                                                                                                                                                    



the allegations of fraud and drug diversion were false because they did not make a claim  

                                                                                                                                                     



about either one before the Board.  

                                                                 



                         The superior court did not explicitly rule on the claims for statutory fraud  

                                                                                                                                                      



under AS 23.30.250(a) in the various motions for dismissal and summary adjudication,  

                                                                                                                                        



nor did it discuss whether the statute might affect the claims of privilege the defendants  

                                                                                                                                            



raised   in   response   to   the   IIED   claims   and   the   defamation   claims.                                                              Alaska  

                                                                                                                                                 



Statute 23.30.250(a) permits a civil suit for damages against a person who, inter alia,  

                                                                                                                                                        



(1) knowingly makes false or misleading representations "related to a benefit" under the  

                                                                                                                                                           



AWCA or (2) knowingly "assists, abets, solicits, or conspires in making a false or  

                                                                                                                                                           



misleading submission affecting the payment, coverage, or other benefit" under the  

                                                                                                                                                          



AWCA.  The Cornelisons did not cite AS 23.30.250(a) in their amended complaint, but  

                                                                                                                                                          



they alleged that the defendants, acting together, had perpetrated a fraud on the Board.  

                                                                                                                                                                  



Theyrelied on AS23.30.250(a) in several memorandainsupport ofmotions,particularly  

                                                                                                                                           



their opposition to Dr. Seres's summary judgment motion and their motions for a stay  

                                                                                                                                                     



and for a continuance.  

                                           



                         It appears from their motions for a stay and for a continuance,  which  

                                                                                                                           



included a primary jurisdiction argument, that their theory of the application of this  

                                                                                                                                                         



statutory tort was that the Board needed to determine in the first instance whether the  

                                                                                                                                                          



            62           The petition to terminate benefits did not allege fraud, and there is no                                                          



indication   that   the   employer   asked   the   Board   to   consider   a   fraud   claim   under  

AS 23.30.250(b).   



                                                                            -31-                                                                      7119
  


----------------------- Page 32-----------------------

                                                                   63  

evidence presented was false.                                           This was not an unreasonable position in light of the                                                            



Board's statutory role as the fact finder with "the sole power to determine the credibility                                                                               

                             64  in workers' compensation proceedings.  It would also be consistent with  

of a witness"                                                                                                                                                                          



the manner in which a plaintiff must proceed in the tort of malicious prosecution, where  

                                                                                                                                                                                   

a plaintiff must have first won the lawsuit that provides the basis for the claim.65  

                                                                                                                                                                 



                              On appeal, TIG contends that AS 23.30.250(a) only applies to fraud by  

                                                                                                                                                                                          



employee-beneficiaries.  But the statute's language does not support this interpretation,  

                                                                                                                                                                 



and its legislative history undermines it as well.  Among the proscribed conduct listed  



in AS 23.30.250(a) is conduct that only employers can engage in, such as "knowingly  

                                                                                                                   



misclassif[ying] employees . . . for the purpose of evading full payment of workers'  

                                                                                                                                                                            



compensation insurance premiums." The language of other actions is neutral as between  

                                                                                                                                                                              



employers and employees:  the statute applies to statements or submissions "related to  

                                                                                                             



a  [workers'  compensation]  benefit"  or  "affecting  the  payment,  coverage,  or  other  

                                                                                                                                                                                    

                                                                            66   False statements made in support of termination of  

[workers' compensation] benefit."                                                                                                                                                           

                                                         



benefits obviously affect payment of a workers' compensation benefit and are "related  

                                                                                                                                                                               



to a benefit" under the AWCA.  

                                                    



               63             TheCornelisons                       filed acopy              of the Board's                  decision with thesuperior court                           



shortly   after   its  decision   issued.     In   denying   the   petition   to   terminate   Floyd's  

compensation, the Board gave no weight to the testimony of Dr. Seres and Johnson based                                                                                              

in part on its review of the video, which the Board said showed a large number of edits                                                                                               

and cuts.             The Board specifically noted that the edited video showed Floyd "sitting or                                                                                          

bent down" followed by a shot of him standing "without capturing his efforts to rise."                                                                                                            



               64             AS 23.30.122.  

                                       



               65             See Indus. Power & Lighting Corp. v. W. Modular Corp., 623 P.2d 291,  

                                                                                                                                                                          

298 (Alaska 1981).  

                             



               66             AS 23.30.250(a).  

                                       



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----------------------- Page 33-----------------------

                          The legislative history we have discussed in prior cases, and upon which   



TIG relies, is related to AS 23.30.250(b), which authorizes employers to bring fraud                                                            

                                                                                                                   67     Unlike subsection (a),  

claims against employees and providers before the Board.                                                                                                       

                                                                                                                                                        68    The  

subsection (b) is limited to misrepresentations that result in obtaining benefits.                                                                            

                                                                                                                                        



language in subsection (a) is broader and, as noted, includes actions that are specific to  

                                                                                                                                                                  



employers. The legislature expanded the statutory language in subsection (a) to include  

                                                                                                                                                        

employer  activities  in  1982;69                             nothing  in  the  legislative  history  from  1995,  when  

                                                                                                                                                           

AS 23.30.250 was repealed and reenacted,70 suggests that subsection (a) was intended  



to apply only to employees.   Rather this legislative history indicates that the revised  

                                                                                                                                                        

statute would "broaden[] the definition of misrepresentation."71  As a matter of policy,  

                                                                                  



it would be anomalous to permit a fraud action against an employee based on knowingly  

                                                                                                                                                  



presenting false evidence"related to"or "affecting" a workers' compensation benefit but  

                                                                                                                                                                



not to permit an action against an employer for the same conduct, particularly in light of  

                                                                                                                                                                  



the legislative directive that the workers' compensation statute not be construed in favor  

                                                                                                                                                            



                            72  

of either party.                 

                  



             67          See  ARCTEC  Servs.  v.  Cummings,  295  P.3d  916,  923  (Alaska  2013).  



             68          AS  23.30.250(b).  



             69          See   ch.   93,       21,   SLA    1982  (amending   AS   23.30.250   to   include  



misrepresentations  for  the  purpose  of  denying  benefits).  



             70           Ch.  75,     11,  SLA   1995.  



             71          See   Letter   from   the   Alaska   Labor-Mgmt.   Ad   Hoc   Comm. on   Workers'  



Comp.  to  Rep.  Eldon  Mulder,  Sponsor  of  H.B.  237,  19th  Leg.,  1st  Sess.  at  2,  Alaska  Leg.  

Microfiche  Collection  No.  8605  (Feb.  23,   1995).  



             72          AS 23.30.001(3).  

                                  



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----------------------- Page 34-----------------------

                                                      Because the superior court did not address the statutory fraud claim in the                                                                                                                                                                                                                



first instance, we remand this claim.                                                                                    



                           H.	                        The   Cornelisons   Waived   The   Defamation   Claim   As   To   Johnson,  

                                                      Griffin & Smith, And TIG On Appeal; We Remand The Defamation                                                                                                                                                                                        

                                                      Claim Against Dr. Seres.                                                         



                                                      The superior court decided that Johnson, Griffin & Smith, and TIG were                                                                                                  



entitled to absolute immunity from liability for any defamatory statements they made                                                                                                                                                                                                                                                   



because those statements had been made in the context of the Board proceeding and were                                                                                                                                                                                                                                                    



therefore privileged. The superior court used two rationales to grant summary judgment                                                                                                                                                                                                                                  



on the defamation claimto                                                                                 Dr. Seres: it     decided both that the statute of limitations barred  



all claims against Dr. Seres because the EME took place in 2008 and that Dr. Seres had                                                                                                                                                                                                                                                         



absolute immunity based on AS 23.30.095(k) because he was acting as an employer's   



independent medical examiner.                                                                                                     



                                                      The Cornelisons included the defamation claim in their statement of points                                                                                                                                                                                                     



on appeal, but in their briefing before us, they failed to advance any argument that the   



 superior   court's   privilege   analysis   as   to   Johnson,   Griffin   &   Smith,   and   TIG   was  



                                                                                                                                                                                                                                      73  

incorrect, so this claim is waived as to those defendants.                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                 But they did argue that the  



                                                                                                                                                                                                                                                                                                                                                  

 superior  court  erred  in  granting  Dr.  Seres  summary  judgment  on  the  statute  of  



                                                

limitations.  



                                                                                                                                                                                                                                                                                                                                                    

                                                      With respect to Dr. Seres, the Cornelisons' defamation claim was based on  



                                                                                                                                                                                                                                                                                                                                         

 statements he made in his EME reports, not on the EME exam itself. The superior court  



                                                                                                                                                                                                                                                                                                                                      

acknowledged this, repeating an interrogatory response in which the Cornelisons stated  



                                                                                                                                                                                                                                                                                                                                          

that "Dr. Seres accused [Floyd] of the felony criminal acts of fraud, and possible drug  



                           73                         See Elsberry v. Elsberry                                                                         , 967 P.2d 1004, 1006 (Alaska 1998) (holding that                                                                                                                                       



a pro se litigant waived an issue that was included in his points on appeal but not argued                                                                                                                                                                                                                                        

in his brief).          



                                                                                                                                                                       -34-	                                                                                                                                                              7119
  


----------------------- Page 35-----------------------

 diversion."   Dr. Seres made the statement about Social Security fraud in a report dated                                                                                                                                                                                                        



 March 4, 2009, and the statement about drug diversion in a report dated June 24, 2008.                                                                                                                                                                                                                                 



 The Cornelisons contended they did not receive either of Dr. Seres's reports until May or                                                                                                                                                                                                                    



 June 2009. Because the defamation claim could not have accrued before Dr. Seres made                                                                                                                                                                                                             



 the statements, the EME examination date relied on by the superior court could not serve                                                                                                                                                                                                         



 as the starting date for purposes of the statute of limitations.                                                                                                                                                     If there was a factual issue                                                 



 about when the statute of limitations accrued on the defamation claim against Dr. Seres,                                                                                                                                                                                                      



 it was error for the superior court to use that defense as a basis to grant Dr. Seres                                                                                                                                                          



 summary judgment on the defamation claim without making a specific finding about the                                                                                                                                                                                                                     

 accrual date.                                74  



                                                The other rationale the superior court used to grant summary judgment to  

                                                                                                                                                                                                                                                                                                              



 Dr. Seres on the defamation claim was absolute immunity under AS 23.30.095(k).  As  

                                                                                                                                                                                                                                                                                                         

 we  explained  earlier,  AS  23.30.095(k)  does  not  shield  Dr.  Seres  from  liability.75  

                                                                                                                                                                                                                                                                                                                        



 Dr. Seres presented no argument identifying another possible basis for affirming on the  

                                                                                                                                                                                                                                                                                                          



 defamation claim.   Consequently we reverse the superior court's grant of summary  

                                                                                                                                                                                                                                                                                  



judgment and remand this claim.  

                                                                                                



                                                While  we  do  not  address  the  superior  court's  decision  regarding  the  

                                                                                                                                                                                                                                                                                                        



 Cornelisons' defamation claim against the other defendants, we reject the argument that  

                                                                                                                                                                                                                                                                                                       



 the litigation privilege to defamation claims applies to protect the defendants from all  

                                                                                                                                                                                                                                                                                                           



 possible claims against them based on the defamatory statements. To accept this blanket  

                                                                                                                                                                                                                                                                                           



 defense would effectively eviscerate AS 23.30.250(a), which explicitly permits a cause  

                                                                                                                                                                                                                                                                                              



 of  action  against  anyone  who  knowingly  makes  false  or  misleading  representation  

                                                                                                                                                                                                                                                                



                         74                      Cf. Gefre v. Davis Wright Tremaine, LLP                                                                                                              , 306 P.3d 1264, 1278 (Alaska                                                     



 2013) (reaffirming the propriety of using evidentiary hearings when there is a material                                                                                                                                                                                            

 factual dispute about the accrual date of a cause of action).                                                                                                                        



                         75                     See Part IV.F.1, supra.  

                                                                                                           



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----------------------- Page 36-----------------------

                                                                                                                                                                        76  

"related to a benefit" or "affecting" a benefit or who aids or abets someone in doing so.                                                                                    



                                                                                                                                                            

It would also be contrary to our holding in Industrial Power &Lighting Corp. v. Western  



                                                                                                                                                                      

Modular Corp., where we upheld the dismissal of a slander claim on the basis of the  



                                                                                                                                                                

absolute litigation privilege but held that the party whose claim was dismissed could  

                                                                                                77  The absolute privilege in defamation  

                                                                                                                                                      

nonetheless bring a malicious prosecution action. 

cases is a common law privilege, and the legislature is free to modify the common law.78  

                                                                                                                                                                 



             I.	           Granting  Summary  Judgment  Or  Dismissal  On  The  Intentional  

                                                                                                                                                   

                           Infliction Of Emotional Distress Claims Was Error.  

                                                                                                                           



                           The  Cornelisons  alleged  that  the  defendants  committed  the  tort  of  

                                                                                                                                                                      



intentional infliction of emotional distress through their participation in the termination  

                                                                                                                                                     



proceedings.  To present a prima facie case of IIED, a plaintiff must show:  "(1) the  

                                                                                                                                                                     



conduct is extreme and outrageous, (2) the conduct is intentional or reckless, (3) the  

                                                                                                                                           

conduct causes emotional distress, and (4) the distress is severe."79  

                                                                                                                                                    

                                                                                                                                              In considering  



                                                                                                                                                       

summary judgment on an IIED claim, the trial court "should accept as true those facts  



                                                                                                                                                        

most favorable to the plaintiff" and then "decide whether the severity of the emotional  



                                                                                                                                                                      

distress and the conduct of the offending party warrant submission of the claim to the  



             76            Cf. Rioux v. Barry                  , 927 A.2d 304, 310 (Conn. 2007) (refusing to provide       



"absolute immunity for the communications underlying the tort of vexatious litigation"                                                                  

because to do so "would effectively eliminate the tort").                                           



             77	           623 P.2d 291, 298 (Alaska 1981).  

                                                                                 



             78            Cf.  Chadha  v.  Charlotte  Hungerford  Hosp.,  865  A.2d  1163,  1172-74  

                                                                                                                                                          

(Conn.  2005)  (holding  that  statute  prohibiting  a  cause  of  action  for  a  report  to  an  

                                                                                                                                                                      

administrative agency if the report "does not represent as true any matter not reasonably  

                                                                                                                                                       

believed to be true" abrogated the common law absolute litigation privilege and created  

                                                                                                                                                              

only a qualified privilege (emphasis omitted)).  

                                                                         



             79            Chizmar v. Mackie, 896 P.2d 196, 208 (Alaska 1995) (quoting Teamsters  

                                                                                                                                                       

Local 959 v. Wells, 749 P.2d 349, 357 (Alaska 1988)).  

                                                                                              



                                                                                  -36-	                                                                          7119
  


----------------------- Page 37-----------------------

            80  

jury."             According to the Restatement, to support a claim of                                                             IIED, the conduct in                    



 question must be "so extreme in degree, as to go beyond all possible bounds of decency,                                                                      



 and to be regarded as atrocious, and utterly intolerable in a civilized community" that it                                                                                  



                                                                                                                                                                            81  

would cause "an average member of the community . . . to exclaim, 'Outrageous!' "                                                                                                



 The superior court summarily adjudicated the IIED claims against all of the defendants,  

                                                                                                                                                         



but it did so for different reasons.  We thus discuss each defendant separately.  

                                                                                                                                         



                            1.           Griffin & Smith  

                                                                              



                           Griffin  &  Smith  moved  for  judgment  on  the  pleadings  under  Civil  

                                                                                                                                                      



Rule 12(c); it did not ask the court to grant it summary judgment.  We have previously  

                                                                                                                                                          



 stated that "a Rule 12(c) motion 'only has utility when all material allegations of fact are  

                                                                                                                                                                          



                                                                                                                             82  

                                                                                                                                                                           

 admitted in the pleadings and only questions of law remain.' "                                                                   A party can prevail on  

                                                                                                                           



                                                                                                                                                                         

 a Rule 12(c) motion only if the nonmoving party's "pleadings contain no allegations that  



                                                                      83 

would permit recovery if proven."                                                                              

                                                                           In considering a Rule 12(c) motion for judgment  



                                                                                                                                                                 

 on the pleadings, the court is limited to the pleadings: per Rule 12(c), if "matters outside  



                                                                                                                                                                  

the pleadings are presented to and not excluded by the court, the motion shall be treated  



              80           Lincoln  v.  Interior  Reg'l  Hous.  Auth. ,  30  P.3d  582,  589  (Alaska  2001).  



              81           RESTATEMENT  (SECOND)  OF  TORTS    46  cmt.  d  (1965),  quoted  in  Lybrand  



 v.  Trask,  31  P.3d  801,  803  n.4  (Alaska  2001).  



              82           Hebert   v.   Honest  Bingo,   18   P.3d   43,   46   (Alaska   2001)   (quoting   5A  



 CHARLES  ALAN  WRIGHT  &  ARTHUR  R.  MILLER,  FEDERAL  PRACTICE  AND  PROCEDURE  

    1367  (2d  ed.   1990)).  



              83           Prentzel  v.  State,  Dep't  of  Pub.  Safety,   53  P.3d   587,   590   (Alaska  2002)  



 (citing  Hebert,   18  P.3d  at  47).  



                                                                                    -37-                                                                             7119
  


----------------------- Page 38-----------------------

as one for summary judgment."                                                                         Thus the requirements for a Rule 12(c) motion are akin                                                                                                             

to the requirements of Rule 12(b)(6).                                                                                  84  



                                           Rule 12(c) has limited utility here because the material facts were subject  

                                                                                                                                                                                                                                                               



to dispute.   The Cornelisons alleged that the defendants, including Griffin & Smith,  

                                                                                                                                                                                                                                                                



perpetrated a fraud on the Board by presenting evidence that was manipulated or false  

                                                                                                                                                                                                                    



and had engaged in "extreme and outrageous conduct" against them, that the defendants'  

                                                                                                                                                                                                                                                 



conduct  was  "intentional  and/or  reckless,"  and  that  the  conduct  had  caused  the  

                                                                                                                                                                                                                                                                          



Cornelisons "severe emotional distress."  In its answer Griffin & Smith simply denied  



the factual allegations on which the Cornelisons' IIED claimwas based. Griffin & Smith  

                                                                                                                                                                                                                                                                    



did not contend that the statements were legal conclusions not amenable to admission or  

                                                                                                                                                                                                                                                                                



denial. In McGrew v. State, Department of Health &Social Services, Division of Family  

                                                                                                                                                                                                                                                                



&Youth Services, we held that the plaintiffs had adequately pleaded an IIED claim when  

                                                                                                                                                                                                                                                                     



they alleged "that [the division's] conduct was 'extreme, outrageous, and atrocious'; that  

                                                                                                                                                                                                                                                                           



its conduct was 'intentional and/or reckless'; that its conduct 'caused emotional distress'  

                                                                                                                                                                                                                                                            



to the [plaintiffs]; and that their distress was 'severe' and that they 'suffered personal  

                                                                                                                                                                                                                                                          

injury, personal humiliation, mental anguish, pain and suffering.' "85   The allegations in  

                                                                                                                                                                                                                                                                                



                      84                   Compare McGrew v. State, Dep't of Health & Soc. Servs., Div. of Family                                                                                                                                              



&Youth Servs.                                  , 106 P.3d 319, 322 (Alaska 2005) ("A complaint should not be dismissed                                                                                                                                 

for failure to state a claim [under Rule 12(b)(6)] unless it appears beyond a doubt that the                                                                                                                                                                                 

plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff                                                                                                                                                               

to relief." (citing                                   Angnabooguk v. State                                                  , 26 P.3d 447, 451 (Alaska 2001)),                                                                            with Prentzel                              ,  

53 P.3d at 590 ("The . . . defendants can prevail [on their Rule 12(c) motion] only if [the                                                                                                                                                                               

plaintiff's] pleadings contain no allegations that would permit recovery if proven.").                                                                                                                                                                                                   

See also                   5C C            HARLES  ALAN WRIGHTET AL                                                                   ., F   EDERAL  PRACTICE AND                                                        PROCEDURE   1368   

(3d ed. 2004) ("A significant number of federal courts have held that the standard to be                                                                                                                                                                                       

applied on a Rule 12(c) motion based on all the pleadings is identical to that used on a                                                                                                                                                                                          

Rule 12(b)(6) motion based solely on the complaint.").                                                                                 



                      85                    106 P.3d at 324-25.  

                                                                                 



                                                                                                                                     -38-                                                                                                                             7119
  


----------------------- Page 39-----------------------

the Cornelisons' complaint are comparable, so the Cornelisons adequately pleaded the                                                                                                                      



elements of an IIED claim.                         



                                Griffin & Smith argue that its conduct was absolutely privileged because           



it   had   the   right   to   bring  a   petition   to   terminate   Floyd's   benefits   and   the   alleged  



outrageous   conduct   was   part   of   their  efforts   to   terminate   his   benefits.     But   as   the  



Restatement notes, liability is barred only when the actor "has done no more than to                                                                                                                         

                                                                                                                          86      The Cornelisons alleged that the  

insist upon his legal rights                                       in a permissible way                                ."                                                                                 



defendants participated in a fraud on the Board by presenting evidence they knew or  

                                                                                                                                                                                                            



should have known was false with the purpose of terminating Floyd's benefits because  

                                                                                                                                                                                               



they hoped to close an expensive claim, not because they thought he was in fact no  

                                                                                                                                                                                                           



longer disabled.  

                                         



                                While an employer and its insurer have the right to petition to terminate an  

                                                                                                                                                                                                            



employee's benefits, that right does not include knowingly using false or misleading  

                                                                                                                                                                                       



evidence in the course of petitioning.  As discussed above, AS 23.30.250(a) permits a  

                                                                                                                                                                                                               



civil  suit  against  anyone  who  "knowingly  makes  a  false  or  misleading  statement,  

                                                                                                                                                                                       



representation, or submission related to a [workers' compensation] benefit" or someone  

                                                                                                                                                                                            



who "knowingly assists, abets, solicits, or conspires in making a false or misleading  

                                                                                                                                                                                      



submission affecting the payment, coverage, or other [workers' compensation] benefit."  

                                                                                                                                                                                                                    



Because  the  Cornelisons'  complaint  includes  allegations  that  Griffin  &  Smith  

                                                                                                                                                                                                 



participated in a fraud on the Board and conspired to submit evidence they knew was  

                                                                                                                                                                                                        



false in their efforts to terminate Floyd's benefits - actions which are impermissible  

                                                                                                                                                                               



under the statute - the complaint alleges that Griffin & Smith did more than simply file  

                                                                                                                                                                                                          



a petition to terminate benefits.  

                                                       



                86              RESTATEMENT,   supra   note 24,  46 cmt. g (emphasis added);                                                                                                see also   



 Young v. Allstate Ins. Co.                                  , 198 P.3d 666, 689 (Haw. 2008) (permitting IIED claim based                                                                           

on conduct alleged to have occurred during the proceedings of a prior lawsuit).                                                                                            



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----------------------- Page 40-----------------------

                                    The Cornelisons thus adequately set out the elements of an IIED claim in                                                                                                                         



their complaint, so granting a judgment on the pleadings to Griffin & Smith on this claim                                                                                                                                   



was erroneous.   



                                    2.                Dr. Seres   



                                    The superior court granted summary judgment to Dr. Seres on statute of                                                                                                                          



limitations grounds, deciding that the IIED claim against Dr. Seres was based solely on                                                                                                                                             



the Cornelisons' contention that Dr. Seres had intentionally injured Floyd during the                                                                                                                                            



2008 EME. The                               court also determined that AS 23.30.095(k) shielded Dr. Seres fromany   



                                                                                                    87  

liability based on his written reports.                                                                   



                                                                                                                                                                                                                                    

                                    With  respect  to  the  statute  of  limitations,  the  superior  court  erred  in  



                                                                                                                                                                                        88  

                                                                                                                                                                                                          

                                                                                                                                                                                              The Cornelisons  

considering only claims of intentional injury during the EME in 2008. 



                                                                                                                                                                                                                                     

stated in both the interrogatory response the superior court cited and their opposition to  



                                                                                                                                                                                                                                  

Dr. Seres's motion for summary judgment that their IIED claim was also based on the  



                                                                                                                                                                                                                                 

allegations in Dr. Seres's reports that Floyd should be investigated for drug diversion and  



                                                                                                                                                                                                                                   

that  he  was  committing  Social  Security  fraud.                                                                                         In  support  of  their  opposition  to  



                                                                                                                                                                                                                                

Dr. Seres's motion they included a copy of deposition testimony from Judy stating that  



                                                                                                                                                                                                                                     

the IIED claim was based in part on Dr. Seres's calling Floyd a fraud; Judy included in  



                                                                                                                                                                                                                                  

that testimony information about the severity of Floyd's emotional distress.   As we  



                                                                                                                                                                                                                                  

discussed above, the statute of limitations could not have begun on claims related to the  



                  87                As wehaveexplained above, AS23.30.095(k) does not apply to                                                                                                               Dr. Seres's  



reports and cannot shield him from liability for the statements in them.                                                                                                                      See  Part IV.F.1,   

supra.  



                  88                We agree with the superior court that any claims related to intentional  

                                                                                                                                                                                                             

injury  that occurred  during  the 2008  exam were barred  by  the two-year  statute of  

                                                                                                                                                                                                                                    

limitations.  See AS 09.10.070(a).  

                                                        



                                                                                                                -40-                                                                                                         7119
  


----------------------- Page 41-----------------------

                                                                                                                          89  

 allegation   of   fraud   at   least   until   Dr.   Seres   wrote   the   report.                                              Granting   summary  



judgment to Dr. Seres on the IIED claimwith respect to the allegations of Social Security                                                              



 fraud and drug diversion was error.                       



                          3.           TIG  



                          The superior court granted summary judgment to TIG on the basis that its  

                                                                                                                                                                   



 "presentation of evidence to the [Board] [was] not outrageous conduct" in that TIG was  

                                                                                                                                                                



 "specifically and legally entitled to present such evidence." The court also stated that the  

                                                                                                                                                                 



 Cornelisons  had  "not  present[ed]  any  specific  emotional  injuries  resulting  from  

                                                                                                                                                            



 defendants' conduct."  The court also found that the conduct did not meet the standard  

                                                                                                                                                      



 of outrageousness set out in the Restatement and in case law.   Quoting Shehata v.  

                                                                                                                                                                   

                               90  the court characterized TIG's conduct as follows:  

Salvation Army,                                                                                                    

                     



                          The defendants took reasonable steps in pursuit of [their]  

                                                                                                                                 

                          'obligation              to      protect           [their]        interests.'                While           the  

                                                                                                                                     

                          [Cornelisons]claimthat Dr.Seres's opinion was biased or the  

                                                                                                                                        

                          investigator's work was biased, the [Board] will take into  

                                                                                                                                     

                          account            a      potential            witness['s]              bias        in      making            its  

                                                                                                                                      

                          determination of credibility under  AS 23.30.12[2], before  

                                                                                                                                

                          rendering a decision to terminate or modify benefits.91  

                                                                                                               



             89           See McCutcheon v. State                        , 746 P.2d 461, 466-67 (Alaska 1987) (discussing                         



 cases applying the discovery rule to defamation claims).                                     



             90           225 P.3d 1106, 1118 (Alaska 2010).  

                                                                                                  



             91           By  the  time  the  superior  court  granted  summary  judgment  to  TIG  in  

                                                                                                                                                                  

July 2014, the Board had already denied TIG's petition to terminate Floyd's benefits and  

                                                                                                                                                                

had  given  no  weight  to  either  Dr.  Seres's  opinions  or  to  the  edited  videos.                                                                       The  

                                                                                                                                                              

 Cornelisons  submitted  a  copy  of  the  Board's  decision  to  the  superior  court  in  

                                                                                                                                                                  

December 2013 as a supplement to their oppositions to Dr. Seres's and TIG's motions  

                                                                                                                                                       

 for summary judgment. The superior court asked the parties questions about the Board's  

                                                                                                                                                        

 decision at oral argument on the substantive motions. At oral argument on the summary  

                                                                                                                                                     

 adjudication motions,  Griffin  & Smith  argued  that  the  decision  was hearsay.                                                                           TIG  

                                                                                                                                                              

                                                                                                                                             (continued...)  



                                                                                -41-                                                                         7119
  


----------------------- Page 42-----------------------

 (Footnote omitted.)                



                       A   party   moving   for   summary   judgment   bears   the   initial   burden   of  



establishing, through admissible evidence, that there is no material issue of fact and that                                                    

                                                                              92   The non-moving party in a summary  

it is entitled to judgment as a matter of law.                                                                                       



judgment motion does not have the burden of coming forward with admissible evidence  

                                                                                                                                      

to show that material factual issues exist until the moving party meets its initial burden.93  

                                                                                                                                                       



Thus TIG mischaracterized the summary judgment standard in the superior court when  

                                                                                                                                            



it argued in its summary judgment motion that the Cornelisons "failed to raise and  

                                                                                                                                               



provide support for any genuine issue of material fact."  

                                                                                                 



                       TIG characterized the Cornelisons' claims as "essentially that they don't  

                                                                                                                                            



like  the  procedures  in  place  under  the  [AWCA]"  and  asserted  it  had  "followed  

                                                                                                                                   



established legal procedures."  The Cornelisons asserted that the defendants, including  

                                                                                                                                     



TIG, had presented false or manipulated evidence to the Board and had perpetrated a  

                                                                                                                                                   



 fraud on the Board.  In their opposition to TIG's motion, the Cornelisons stated that,  

                                                                                                                                              



even though TIG had no evidence to support the allegations about Floyd diverting drugs  

                                                                                                                                            



or committing Social Security fraud, it nonetheless submitted reports containing those  

                                                                                                            



allegations to the Board, and they additionally contended that TIGhad brought the Board  

                                                                                                                                           



proceedings in bad faith.  

                                             



                       TIG failed to offer any admissible evidence to support its contention that  

                                           



it had done nothing more than take actions it was "specifically and legally entitled to  

                                                                                                                                                  



            91         (...continued)  



                                                                                                                                    

indicated that it took the same position as Griffin & Smith regarding the Board decision's  

                                                                                                         

admissibility, but TIG was a party to the Board proceeding.  



            92         Shade v. Co &Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995).  

                                                                                                                                           



            93         Id.  

                               



                                                                       -42-                                                                 7119
  


----------------------- Page 43-----------------------

take."   The evidence it presented to support its summary judgment motion was mainly                                              



deposition  testimony   or   discovery   responses   from   the   Cornelisons   and   one   of   the  

                                       94   The discovery responses included statements alleging the  

Cornelisons' witnesses.                                                                                                                 



adjuster  knew  the  evidence  supporting  the  petition  to  terminate  "was  corrupt  and  

                                                                                                                                       



submitted in bad faith" and that the adjuster "opt[ed] to aid and abet and perpetuate false,  

                                                                                                                                     



fraudulent,  misrepresentative,  defamatory,  libelous,  and  legally  insufficient  claims  

                                                                                                                                  



against  the  Cornelisons"  by  continuing  to  use  both  the  surveillance  materials  and  

                                                                                                                                       



Dr. Seres's reports containing the accusations of fraud and improper drug use.   The  

                                                                                                                                       



evidence TIG presented also included deposition testimony from Floyd that, read in the  

                                                                                                                                         



light most favorable to him, indicated he became so angry and despondent after reading  

                                                                                                                                 



the allegations of fraud contained in Dr. Seres's report that he became suicidal and had  

                                                                                                                                        



to seek treatment with a therapist.  TIG offered no evidence to support its claim that it  

                                                                                                        



haddonenothing more than follow established process in its attempttoterminateFloyd's  

                                                                                                                                 



benefits; it did not, for example, submit an employee's affidavit explaining the process  

                                                                                                                                 



it used to investigate the accuracy of the evidence it relied on.  

                                                                                                



                      Because TIG failed to offer any evidence to support its argument, granting  

                                                                                                                                



summary judgment to TIG on the IIED claim was error.  

                                                                                   



                      4.         Johnson  



                      In granting summary judgment to Johnson on the IIED claim, the superior  

                                                                                                                                



court decided that the "investigation was so covert that neither [Floyd] nor [Judy] was  

                                                                                                                            



ever aware of [the investigators'] presence."  From this the court concluded that "[t]he  

                                                                                                                                    



defendants' conduct during the investigation does not present as outrageous conduct."  

                                                                                                                                               



The court also stated that the Cornelisons did "not present any specific emotional injuries  

                                                                                                                                  



           94         TIG also included a copy of an interlocutory decision of the Board in  

                                                                                                                                          

Floyd's case deciding that the edited video evidence would be admitted at the hearing.  

                                                                                                                                               



                                                                   -43-                                                                  7119  


----------------------- Page 44-----------------------

resulting from [Johnson's] conduct," but rather "only generally claim[ed] 'emotional                                                                                                                                                                                                                                                                                                                   



distress.' "      It then explained that even if the Cornelisons "had presented sufficient facts                                                                                                                                                                                                                                                                                                                                         



to   show   severe   emotional   distress,   that   distress   did   not   emanate   from   [Johnson's]  



 actions."   



                                                                      The superior court's treatment of the IIED claim is puzzling because the                                                                                                                                                                                                                                                                                                  



 Cornelisons' main IIED allegations against Johnson were not related to the actual act of                                                                                                                                                                                                                                                                                                                                                             



 surveillance but to the resulting edited videos.                                                                                                                                                                                                In their opposition to Johnson's motion                                                                                                                                    



 for   summary   judgment   they   clearly   asserted   claims   that   the   edited   videos   Johnson  



produced   and   provided   to   TIG,   who   then   provided   them   to  Griffin  &   Smith   and  



Dr. Seres, had been edited by Johnson so as to present a false picture of Floyd's physical                                                                                                                                                                                                                                                                                                                           



 abilities.     They   argued,  "It  would   be   indecent   and   immoral   if   investigative   firms,  



including [Johnson], . . . could then produce edited, altered video[] and investigative                                                                                                                                                                                                                                                                                                      



notes and provide [these] to an insurer, as a true and accurate depiction of the subject,                                                                                                                                                                                          



knowing that the insurer and others will be relying on it . . . ."                                                                                                                                                                                                                                                               The Cornelisons argued                                                                      



that   this   conduct   "would   be   utterly   intolerable   in   a   civilized   community  and   is  



outrageous." They also asserted that Johnson "knew or should have known, during [its]                                                                                                                                                                                                                                                                                                                                                       



 editing process, that the surveillance video was not a reliable or accurate depiction of                                                                                                                                                                                                                                                                                                                                                            



 [Floyd]" and that Johnson knew the investigative report was not accurate.                                                                                                                                                                                                                                                                                                                       In addition,   



the Cornelisons cited a Louisiana workers' compensation case in which the Louisiana                                                                                                                                                                                                                                                                                                                         



 Court of Appeal noted that "[a] surveillance video must be viewed with a critical eye,                                                                                                                                                                                                                                                                                                   



bearing in mind that the person making the video has been hired by a party who desires                                                                                                                                                                                                                                                                                                                                      



to have the subject of the video depicted in the worst light.                                                                                                                                                                                                                                                    A video film can be edited.                                                                                                                          



                                                                                                                                                                                                                                                                                               95  

 Scenes revealing the subject favorably can be deleted."                                                                                                                                                                                                                                                 



                                   95                                Jeanise  v.  Cannon,  895  So.  2d  651,  664  (La.  App.  2005).  



                                                                                                                                                                                                                       -44-                                                                                                                                                                                                             7119  


----------------------- Page 45-----------------------

                            In support of their opposition to Johnson's motion for summary judgment,                                                            



the   Cornelisons   included   an   affidavit   from   Judy   about   discrepancies   between   the  



investigators' notes and the corresponding footage and a log of the times that were edited                                                                              

                                                    96     Judy's  affidavit  also  noted  inconsistencies  in  Johnson's  

out   of   one   day's   video.                                                                                                                                



deposition testimony about the edited videos. The Cornelisons submitted a copy of their  

                                                                                                                                                                           



expert report from the Board proceeding, which detailed several examples of what a  

                                                                                                                                                                                  



reasonable person could infer were relevant omissions from the edited videos.   For  

                                                                                                                                                                            



example, the report identifies at least three instances when the edited video did not show  

                                                                                                                                                                          



Floyd getting up from a bending or squatting position, with gaps in the time stamps at  

                                                                                                                    



those points. Because the court is required at summary judgment to construe all evidence  

                                                                                                                                                                  



in favor of the non-moving party, the Cornelisons provided adequate evidence to raise  

                                                                                                                                                                           



material issues of fact about the accuracy of the edited videos, Johnson's state of mind  

                                                                                                                                                                          



in producing them, and causation.  

                                                                         



                            The  record  does  not  support  the  superior  court's  statement  that  the  

                                                                                                                                                                             



Cornelisons "only generally claim[ed] 'emotional distress.' "   In their opposition to  

                                                                                                                                                                                



summary judgment, the Cornelisons included copies of deposition testimony by both  

                                                                                                                                                                           



Floyd and Judy about their emotional distress.  Floyd testified that he was suicidal for  

                                                                                                                  



a period of time and sought counseling.  While Judy's distress was not as severe, she  

                                                                                                                                                                             



testified  about  stress-related  physical  symptoms.                                                          Both  attributed  their  distress  to  

                                                                                                                                                                               



Johnson's edited videos as well as Dr. Seres's statements that were made after viewing  

                                                                                                                                                                    

the edited videos.97  

                                          



              96            It appears neither party submitted the edited videos to the trial court.                                                           



              97            Johnson  appears  to  argue  that  Dr.  Seres  based  his  allegations  on  his  

                                                                                                                                                                              

examination of Floyd rather than the edited videos, distancing the surveillance from the                                                                                      

statements  Dr.  Seres  made  about  Social  Security  fraud  and  drug  diversion.                                                                                          But  

                                                                                                                                                                           

                                                                                                                                                        (continued...)  



                                                                                      -45-                                                                                7119
  


----------------------- Page 46-----------------------

                      On appeal Johnson argues, as it did below, that AS 23.30.280(e) bars any                                             



                                                                              98  

claim against it for providing the edited video.                                                  

                                                                                  Johnson argues that AS 23.30.280(e)  



                                                                                                                                              

provides it with immunity "for providing information to TIG relevant to the merit of  



                                                                                                                                         

[Floyd's] workers'-compensation claim."   Alaska Statute 23.30.280(e) shields from  



                                                                                                                                             

liability  for  civil  damages  a  person  who  reports  fraud  to  certain  organizations  or  

                                                                                                               99   This subsection is  

                                                                                                                                               

individuals, including a workers' compensation adjuster or insurer. 



           97         (...continued)  



                                                                                                                                            

Dr. Seres's 2009 report explicitly cited the edited videos, saying, "I believe that the  

                                                                                                                                            

surveillance studies demonstrate Social Security [f]raud."  Dr. Seres also wrote that the  

                                                                                                                                         

additional surveillance provided to him in January 2009, six months after his final  

                                                                                                                                     

examination of Floyd, had "remarkable new material . . . that strongly argues that [Floyd]  

                                                                                                                                             

is actually not impaired in any significant way from a physical standpoint."  There is no  

                                                                                                                                              

indication in this report that his conclusions were based solely on his examination of  

                                                                                                                                             

Floyd the year before.  We recognize that Dr. Seres's deposition testimony could be  

                                                                                                                                        

construed as suggesting otherwise, but that difference is part of the factual dispute about  

causation.  



           98         Griffin  &  Smith  also  argues  that  it  is  protected  from  liability  by  

                                                                                                                                            

AS 23.30.280(e). But if Griffin & Smith thought it was furnishing to the Board material  

                                                                                                                                    

about possible fraud on Floyd's part, it is not clear why Griffin & Smith, as attorneys for  

                                                                                                                                             

TIG, failed to bring a fraud petition before the Board and why Griffin signed an affidavit  

                                                                                                                                    

saying the adjuster and insurer had "never asserted a claim of fraud in this case."  

                                                                                                                                         



           99         Alaska Statute 23.30.280(e) provides in full:  

                                                                                           



                                 Except as provided in (f) of this section, a person is not  

                                                                                                                      

                      liable  for  civil  damages  for  filing  a  report  concerning  a  

                                                                                                    

                      suspected, anticipated, or completed fraudulent act or a false  

                                                                                                                    

                      or  misleading  statement  or  representation  with,  or  for  

                                                                                                                     

                      furnishing   other   information,   whether   written   or   oral,  

                                                                                                                  

                      concerning a suspected, anticipated, or completed fraudulent  

                                                                                                          

                      act or false or misleading statements or representation to  

                                                                                                                  



                      (1)         law      enforcement             officials        or     their      agents        and  

                                                                                                                   

                                  employees;  

                                                      

                                                                                                                          (continued...)  



                                                                     -46-                                                               7119
  


----------------------- Page 47-----------------------

part of a provision added to the AWCA in 2005 that established a section within the                                                              

Division of Workers' Compensation to investigate fraud.                                            100  



                       The superior court relied on this statutory subsection in granting summary  

                                                                                                                                      



judgment  to  Johnson  on  the  defamation  claim,  but  the  statute  forecloses  any  civil  

                                                                                                                                              



damages, not just those for defamation. As the superior court noted, the statute expressly  

                                                                                                                                      



 states it does not preclude liability for civil damages if the liability arose as a result of  

                                                                                                                                                   

gross negligence or reckless or intentional misconduct.101  The superior court focused on  

                                                                                                                                                  



the "misconduct" aspect of this exception to immunity and decided that the edited videos  

                                                                                                                                           



"accurately depicted [Floyd's] outdoor activities" and that "editing, however sloppily,  

                                                                                                



the high numbers of hours of footage into a compact presentable report" did not amount  

                                                                                                                                          



to misconduct.  

                            



                       The superior court did not explain the basis for its decision that there was  

                                                                                                                                                



no material factual dispute that the edited videos accurately depicted Floyd's activities.  

                                                                                                                                                        



            99	        (...continued)  



                                                                                                                            

                       (2)	        the division of workers' compensation, the division of  

                                                                                                        

                                   insurance            in      the      Department               of      Commerce,  

                                                                                                                          

                                   Community,   and  Economic  Development,   or  an  

                                                                                                                           

                                   agency  in  another  state  that  regulates  insurance  or  

                                                    

                                   workers' compensation;  



                                                                                                                           

                       (3)	        an  insurer  or  adjuster  or  its  agents,  employees,  or  

                                                                                                          

                                   designees,  or  the  risk  manager  of  a  self-insured  

                                                                       

                                   employer under this chapter.  



            100        Ch.  10,    65,  FSSLA  2005.                              The  Cornelisons  do  not  argue  that  

                                                                                                                                              

AS 23.30.280 does not apply in these circumstances, so we assume without deciding that  

                                                                                                                                                

it does.  

               



            101        Alaska  Statute  23.30.280(f)  provides  that  subsection  (e)  "do[es]  not  

                                                                                                                                                

preclude liability for civil damages . . . if the liability arose as a result of gross negligence  

                                                                                                                                    

or reckless or intentional misconduct."  

                                             



                                                                        -47-	                                                                7119
  


----------------------- Page 48-----------------------

The superior court appears to have misunderstood the Cornelisons' assertions about why                                                                                                                                                                                                                                                                                                                      



the edited videos were inaccurate. They did not dispute that Floyd was the person in the                                                                                                                                                                                                                                                                                                                          



edited  videos; rather                                                                                   what they alleged                                                                            was that Johnson had                                                                                             deleted Floyd's pain                                                              



behaviors or otherwise edited the video to depict Floyd as more physically capable than                                                                                                                                                                                                                                                                                                                    



he was.                                The Cornelisons' expert report documented several instances of missing or                                                                                                                                                                                                                                                                                                     



omitted material from the edited videos.                                                                                                                                                              The Board echoed these concerns about the                                                                                                                                                                 



edited videos' accuracy in its decision, noting that the edited video of the August 15                                                                                                                                                                                                                                                                                                                             



 surveillance footage showed Floyd "sitting or bent down" followed by a shot of him                                                                                                                                                                                                                                                                                                                         



 standing "without capturing his efforts to rise." Dr. Seres specifically noted the absence                                                                                                                                                                                                                                                                                               



of pain behaviors in the edited videos in his report; from this absence of pain behaviors                                                                                                                                                                                                                                                                                        



he concluded that Floyd "does not likely have significant back pain."                                                                                                                                                                                                                                                                           



                                                                 The   record   indicates   that   Johnson  created   the   edited   videos   from raw   



 surveillance footage that its employees took, suggesting that it knew what was in the                                                                                                                                                                                                                                                                                                                          



edited   videos   and   what   was   omitted   from   them.     Similarly,  Johnson   created   the  



 surveillance reports it provided to TIG from the investigators' field notes.                                                                                                                                                                                                                                                                                               Given the   



Cornelisons' allegation that surveillance footage of Floyd's pain behaviors was edited  



out or not filmed and Dr. Seres's conclusions about Floyd based on absence of pain                                                                                                                                                                                                                                                                                                                        



behaviors in the edited videos, we disagree with the superior court's conclusion that                                                                                                                                                                                                                                                                                                                        



editing"however                                                                    sloppily"can                                                    never amountto                                                                misconduct. Thestatutepermits                                                                                                                            liability  

                                                                                                                                                                                                                                                                      102 and we have previously stated  

when the person making the report is grossly negligent,                                                                                                                                                                                                                                                                                                                                             



that gross negligence "signifies more than ordinary inadvertence or inattention, but less  

                                                                                                                                                                                                                                                                                                                                                                                                              



than conscious indifference to consequences; and it is . . . merely an extreme departure  

                                                                                                                                                                                                                                                                                                                                                                                  



                                 102                            Id.  



                                                                                                                                                                                                       -48-                                                                                                                                                                                                                    7119  


----------------------- Page 49-----------------------

                                                                                                                                                                                         103  

 from the ordinary standard of care."                                                                                                                                                                 Purposely editing a video, selectively filming a                                                                                                                                                                                                



 subject, or even extremely sloppy editing could all meet the standard of gross negligence                                                                                                                                                                                                                                                                                                          



or of reckless or intentional misconduct.                                                                                                      



                                                                     We conclude the Cornelisons provided enough evidence to show that a                                                                                                                                                                                                                                                                                                             



material factual dispute existed about the accuracy of the edited videos and the manner                                                                                                                                                                                                                                                                                                                             



in which Johnson created them.                                                                                                                                       They also presented more than generalized claims of                                                                                                                                                                                                                        



emotional distress.                                                                               Because the superior court failed to address the issues in dispute in                                                                                                                                                                                                                                                                          



the IIED claimagainst Johnson, we reverse the grant of summary judgment on this claim                                                                                                                                                                                                                                                                                                                                          



and remand to the superior court.                                                                                                           



                                  J.                                 The Cornelisons Waived The Invasion Of Privacy Claim.                                                                                                                                                                                                                              



                                                                     The Cornelisons contend that the superior court failed to address their                                                                                                                                                                                                                                                                                      



invasion of privacy claim. They do not provide a record cite to show where they alleged                                                                                                                                                                                                                                                                                                                                



this claim in their second amended complaint. We were unable to identify a claim in the                                                                                                                                                                                                                                                                                                                                                     



 second amended complaint similar to one the Cornelisons discuss in their brief before                                                                                                                                                                                                                                                                                                                                    



us, so we deem this argument waived.                                                                                                                      



V.                                 CONCLUSION  



                                                                     We   VACATE   the   judgments   entered   against   the   Cornelisons.     We  



REVERSE  the  superior  court's  grant  of  summary  judgment  or  dismissal  as  to  all  

                                                                                                                                                                                                                                                                                                                                                                                                                                            



defendants on the IIED claims, REVERSE the dismissal of the NIED claims as to                                                                                                                                                                                                                                                                                                                                                                  



Johnson   and   Griffin   & Smith,                                                                                                                                  and   REVERSE the                                                                                          grants   of   summary  judgment   to  



Dr. Seres on the NIED and defamation claims.                                                                                                                                                                                                            We REMAND those claims and the                                                                                                                                                    



Cornelisons'   AS   23.30.250(a)   claim   to   the   superior   court  for   further   proceedings  



consistent with this opinion.                                                                                                                      We AFFIRM the superior court on all other issues.                                                                                                                                                                                       



                                   103                               Storrs v. Lutheran Hosps. & Homes Soc'y of Am., Inc.                                                                                                                                                                                                                                , 661 P.2d 632, 634                                                            



n.1  (Alaska 1983) (quoting W                                                                                                                                 ILLIAM  L. P                                                ROSSER, H                                             ANDBOOK OF THE                                                                              LAW OF                                       TORTS  

  34 (4th ed. 1971)).                                             



                                                                                                                                                                                                                    -49-                                                                                                                                                                                                           7119
  


----------------------- Page 50-----------------------

WINFREE, Justice, dissenting in part.                                                                                                                        



                                                               I respectfully disagree with the court's conclusion that the Cornelisons                                                                                                                                                                                                                   



 failed to adequately brief the superior court's dismissal of their defamation claim against                                                                                                                                                                                                                                                                                        



TIG Insurance and Griffin & Smith based on "absolute privilege."                                                                                                                                                                                                    



                                                               I start with the general proposition that the absolute litigation privilege                                                                                                                                                                                                                               



applies only to statements that are pertinent to or have some relationship to the legal                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                         1   The court itself makes it abundantly clear that one  

proceedings in which they are made.                                                                                                                                                                                                                                                                                                                                                                 



of the Cornelisons' primary arguments against TIG and Griffin & Smith in the superior  

                                                                                                                                                                                                                                                                                                                                                                              



court was the illegitimacy of using Dr. Seres's Social Security fraud and drug diversion  

                                                                                                                                                                                                                                                                                                                                                                         

allegations in the workers' compensation proceeding.2                                                                                                                                                                                                                   Yet the superior court did not  

                                                                                                                                                                                                                                                                                                                                                                                                    



expressly address the Cornelisons' argument when it dismissed their defamation claims  

                                                                                                                                                                                                                                                                                                                                                                                      



against TIG and Griffin & Smith. Although noting the general rule I have just stated, the  

                                                                                                                                                                                                                                                                                                                                                                                                      



                                1                             SeeLawsonv. Helmer                                                                                    , 77 P.3d 724,727-28(Alaska2003) (holding witness                                                                                                                                                             



testimony absolutely privileged because it was "pertinent to the matter under inquiry"                                                                                                                                                                                                                                                                                      

and "[i]n such instances an action for libel or slander will not lie even [if] the testimony                                                                                                                                                                                                                                                                          

is given maliciously and with knowledge of its falsity" (quoting                                                                                                                                                                                                                                         Nizinski v. Currington                                                                                    ,  

 517 P.2d 754, 756 (Alaska 1974)));                                                                                                                                      Gilbert v. Sperbeck                                                                          , 126 P.3d 1057, 1059 (Alaska     

2005) (applying witness immunity to testimony by expert witnesses, "if pertinent to the                                                                                                                                                                                                                                                                                                               

matter under inquiry" (citing                                                                                                           Nizinski, 517 P.2d at 756));                                                                                                       see also Nizinski                                                               , 517 P.2d at                                    

756 (holding testimony by witnesses, including affidavits, is absolutely privileged if                                                                                                                                                                                                                                                                                                                      

"pertinent to the proceedings in which it [is] tendered"                                                                                                                                                                                                or has "some reasonable reference                                                                                 

or connection to the subject of inquiry");                                                                                                                                                             Smith v. Banister                                                                     , 9 Alaska 632, 635, 637                                                                            

 (D.  Alaska 1939) (stating rule that defamatory words by witness in judicial proceeding                                                                                                                                                                                                                                                                        

are "absolutely privileged                                                                                              only  when [they]are connected with or are relevant or material                                                                                                                                                                                        

to the subject of inquiry" (emphasis added)); W. P                                                                                                                                                                                              AGE  KEETON ET AL                                                                           ., P           ROSSER AND   

KEETON ON THE LAW OF TORTS  114, at 817 (5th ed. 1984) (stating American rule is                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                       

"there is no                                                immunity   unless the particular statement is in                                                                                                                                                                                    some way                                              'relevant'   or  

 'pertinent' to some issue in the case"); R                                                                                                                                                       ESTATEMENT   (SECOND)  OF  TORTS    586-88   

 (AM. L                          AW  INST . 1977) (limiting absolute privilege of attorneys, parties, and witnesses                                                                                                                                                                                                                                                   

to statements that have "some relation to the proceeding").                                                                                                                                                       



                               2                               Opinion at 30-31.  

                                                                                                                  



                                                                                                                                                                                                 -50-                                                                                                                                                                                         7119
  


----------------------- Page 51-----------------------

 sum and substance of the superior court's actual rulings -                                                                                            the former by summary               



judgment and the latter by judgment on the pleadings - was that because the alleged                                                                                                              



 defamation   took   place   within   the   workers'   compensation   proceeding   the   absolute  



privilege applied.                           One of two things must be true:                                                  Either the superior court failed to                                            



 appreciate the threshold legal predicate                                                            to  the application                            of the absolute litigation              



privilege or the superior court failed to expressly note it was concluding as a matter of                                                                                                                    



 law that Dr. Seres's statements about possible Social Security fraud and drug diversion                                                                                                    

 were pertinent to and reasonably connected to the workers' compensation proceedings.                                                                                                                           3  



                                 In the Cornelisons' brief to us, in a section heading including the words  

                                                                                                                                                                                                   



 "defamation" and "libel," they argue that Griffin & Smith, on TIG's behalf: deliberately  

                                                                                                                                                                                      



 launched  a  personal  attack  on  Mr.  Cornelison;  despite  knowing  Dr.  Seres's  letter  

                                                                                                                                                                                                     



 contained untrue allegations about Social Security fraud and drug diversion, filed it with  

                                                                                                                                                                                                      



 the workers' compensation board; and later claimed it was not asserting Mr. Cornelison  

                                                                                                                                                                                        



 was committing Social Security fraud or drug diversion, but it did not ask to have the  

                                                                                                                                                                                                           



 letter or allegations withdrawn.   Given the Cornelisons' pro se status and our clear  

                                                                                                                                                                                                      



understanding of the arguments they were making to the superior court, this seems more  

                                                                                                                                                                                                      



 than sufficient to raise the legal question about application of that litigation privilege -  

                                                                                                                                                                                                             



 did Dr. Seres'sstatements about possibleSocial Security fraud and drugdiversion, which  

                                                                                                                                                                                                    



 seem defamatory on their face, "have some relation to the proceeding" that provided  

                                                                                                                                                                                            



 Griffin & Smith and TIG absolute privilege protection when presenting those specific  

                                                                                                                                                                                                



 statements to the Board?  

                                           



                                 TIG understood the Cornelisons were challenging the superior court's  

                                                                                                                                                                                                 



 absolute privilege ruling, as a section of TIG's appellee's brief was devoted to that  

                                                                                                                                                                                                         



                 3  

                                                                                                                                                                                                            

                                 See  Nizinski,  517  P.2d  at  756  (stating  that  question  of  pertinence  to  

                                                                               

proceeding is legal, not factual, issue).  



                                                                                                    -51-                                                                                                       7119  


----------------------- Page 52-----------------------

challenge.     TIG   argued   that   anything   it   submitted   in   the   workers'   compensation  



proceeding was absolutely privileged.                                                                             Its fallback position was that any statements not                                                                                   



absolutely privilegedwerenot                                                             falseor defamatory                                      ordid             not causequantifiabledamages,                                     



issues the superior court never addressed.                                                                                  But TIG studiously ignored the Cornelisons'                                                   



argument    that    the    introduction    into    the    workers'    compensation    proceedings   of  



Dr.   Seres's   statements   about   Social   Security   fraud   and   drug   diversion   had   no   real  



pertinence or connection to those proceedings.                                                                                                



                                        Griffin & Smith also understood the Cornelisons were challenging the                                                                                                                                          



superior court's ruling on absolute privilege, as a section of its appellee's brief was                                                                                                                                                            



devoted to that challenge.                                                        Griffin & Smith argued that Alaska follows the rule of                                                                                                                 



absolute litigation privilege, that the Cornelisons' allegations of defamation arose from                                                                                                                                                        



actions within a legal proceeding, and therefore it had been entitled to judgment on the                                                                                                                                                               

                              4   But Griffin & Smith also studiously ignored the Cornelisons' argument that  

pleadings.                                                                                                                                                                                                                                           



the introduction into the workers' compensation proceedings of Dr. Seres's statements  

                                                                                                                                                                                                                                 



about Social Security fraud and drug diversion had no real pertinence or connection to  

                                                                                                                                                                                                                                                          



those proceedings.  

                  



                                        In my view the Cornelisons have fairly raised a question of law that this  

                                                                                                                                                                                                                                                     



court should recognize, especially in light of their pro se status.  We could resolve this  

                                                                                                                                                                                                                                                     



matter  ourselves with an independent review of the record; arguments by TIG and  

                                                                                                                                                                                                                                                    



Griffin & Smith would have been helpful, but they declined to make any.  However the  

                                                                                                                                                                                                                                                       



matter also seems intertwined with others being remanded to the superior court, such as  

                                                                                                                                                                                                                                                          



the defamation claim against Dr. Seres and the statutory fraud claim against TIG and  

                                                                                                                                                                                                                                                     



                    4                   It is unclear to me how the superior court resolved this claim by way of an                                                                                                                                      



Alaska   Civil   Rule   12(c)   motion   for   judgment   on   the   pleadings   when   by   its   own  

admission it was looking at facts outside the pleadings in making its ruling.                                                                                                                                                    



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----------------------- Page 53-----------------------

Griffin & Smith.  I therefore would remand this issue to the superior court, along with                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



those other issues, for its consideration in the first instance.                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                                                                        -53-                                                                                                                                                                                                                                                          7119
  

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