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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Leona Seal, as Personal Representative of the Estate of Nicholson J. Tinker v. Mark C. Welty d/b/a North Country Services (12/18/2020) sp-7494

Leona Seal, as Personal Representative of the Estate of Nicholson J. Tinker v. Mark C. Welty d/b/a North Country Services (12/18/2020) sp-7494

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

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                         

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

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



LEONA  SEAL,  Personal                                            )  

Representative  of  the  Estate  of                               )    Supreme Court No. S-17540  

                                                                                                  

                                                                                                         

NICHOLSON  J.  TINKER,                                            )  

                                                                  )    Superior  Court  No.  3AN-17-10122  CI  

                                 Appellant,                       )  

                                                                                            

                                                                  )    O P I N I O N  

           v.                                                     )  

                                                                                                                   

                                                                  )    No. 7494 - December 18, 2020  

                                            

MARK C. WELTY, d/b/a NORTH                                        )  

                      

COUNTRY SERVICES,                                                 )  

                                                                  )  

                                 Appellee.                        )  

                                                                  )  



                                                                                                               

                                                  

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

                                                                                                            

                      Judicial District, Anchorage, Thomas A. Matthews, Judge.  



                                                                                                                

                      Appearances: David Murrills, Schlehofer Law Offices, P.C.,  

                                                                                                           

                      Anchorage, for Appellant. Susan Orlansky, Reeves Amodio  

                                                          

                      LLC, Anchorage, for Appellee.  



                                                                                                                 

                      Before:          Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                       

                      Carney, Justices. [Stowers, Justice, not participating.]  



                                           

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                               

                      A  worker  died  at  a  construction  site  when  a  retaining  wall  collapsed.  



                                                                                                                            

Neither the putative employer, who claimed the worker was an independent contractor,  



                                                                                                                       

nor the property owner, who hired the putative employer, had workers' compensation  


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

                                                                                                                               

coverage.         The  worker's  mother,  who  also  was  the  personal  representative  of  the  



                                                                                                                      

worker's estate, filed both a workers' compensation claim against the Alaska Workers'  



                                                                                                                           

Compensation  Benefits  Guaranty  Fund  and  a  superior  court  wrongful  death  action  



                                                                                                                                

against both the putative employer and the property owner.  The Fund later caused the  



                                                                                                                                  

property owner, the putative employer, and the worker's father to be joined as parties to  



                                                                                                                       

the workers' compensation claim before the Alaska Workers' Compensation Board.  



                                                

                     All parties to the workers' compensation proceeding, except the putative  



                                                                                                                                

employer, entered into a settlement agreement; in the settlement the estate elected the  



                                                                                                                            

wrongful death suit as its remedy, agreed to dismiss the workers' compensation claim  



                                                                                                                               

entirely  to  effectuate  its  remedy  election,  received  a  settlement  payment  from  the  



                                                                                                                            

property  owner's  general  liability  insurer,  and  dismissed  the  wrongful  death  claim  



                                                                                                                       

against the property owner.  The agreement explicitly preserved the estate's wrongful  



                                                                                                                    

death claimagainst the putativeemployer. TheBoard evidently approved theagreement,  



                                                                                                                           

and the superior court dismissed the property owner from the wrongful death action  



                                

based on a separate stipulation.  



                                                                                                                              

                     The  putative employer then sought dismissal of the wrongful death suit,  



                                                                                                                      

contending that the Alaska Workers' Compensation Act's exclusive liability provision  



                                                                                                               

precluded the lawsuit because the settlement effectively paid workers' compensation  



                                                                                                                      

benefits  to  the  estate.           The  superior  court  granted  the  putative  employer  summary  



                                                                                                                     

judgment, relying on the Act to decide that the Board's approval of the settlement  



                                                                                                                                

transformed the settlement money into workers' compensation benefits.  Because the  



                                                                                                                             

superior court misinterpreted the settlement agreement and the Act, we reverse the grant  



                                                                       

of summary judgment and remand for further proceedings.  



                                                                -2-                                                         7494
  


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

II.       FACTS AND PROCEEDINGS                               1  



                                                                                                                         

                     David  Michaelson  contracted  with  Mark  Welty,  d/b/a  North  Country  



                                                                                                                                        

Services, to demolish and rebuild a retaining wall at Michaelson's 4-unit rental property.  



                                                                                                                                  

Nicholson Tinker worked for Welty at the construction site.  In September 2016 the  



                                                                

retaining wall collapsed, killing Tinker.  



                                                                                                                          

                     Welty  had  no  workers'  compensation  insurance;  he  had  a  general  



                                                                                                                                        

commercial liability insurance policy, but the insurer denied coverage for the accident.  



                                                                                                                          

Michaelson had no workers' compensation insurance, but he had a landlord liability  



                                                                                    

policy through Allstate with a $300,000 policy limit.  



                                                                                                                

                     Tinker was unmarried and had no children.  He shared an apartment and  



                                                                                                                         

some  living  expenses  with  his  mother,  Leona  Seal,  who  was  appointed  personal  



                                                                                                                        

representative  of  Tinker's  estate.                   Seal  filed,  in  her  own  name,  a  written  workers'  



                                                                                                                                  

compensation claim for death benefits in late 2016.  She included a claim against the  



                                                                                                                           

Fund and informed the Board that she was "pursuing employers / project owners directly  



                                                                                                                                  

for personal injury . . . but reservin[g] rights so also making guaranty fund claim."  As  



                                                                                                                            

personal representative of Tinker's estate, Seal also filed a wrongful death action against  



                                                                                                                          

both Welty and Michaelson in late 2017.  Welty answered and denied he was Tinker's  



                                                                                                                                        

employer; Welty has consistently maintained that Tinker was an independent contractor.  



                                                                                                                                  

                     The Fund petitioned to join Welty, Michaelson, and Tinker's father to the  



                                                                                                                                 

Board proceeding.   Welty opposed joinder;  Michaelson did not oppose joinder but  



                                                                                                                                

contended that Seal could not proceed with both the compensation claim and the civil  



          1  

                                                                                                                       

                     Some facts related to the Board proceeding are derived from the settlement  

                                                                                                

agreement, which is part of the appellate record in this case.  



                                                                 -3-                                                              7494  


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

                     2  

case.   The Board joined all three parties in August 2018, but "with the agreement of the                                                                                                                                                                                                                                                                     



parties" did not schedule hearings because Seal wanted to pursue the civil action.                                                                                                                                                                                                                                                                     



                                                        In August 2018 Michaelson offered to settle the wrongful death claim                                                                                                                                                                                                                     



against him with the full amount of the available Allstate insurance funds in exchange                   



for   a   release   of   all   claims   made   against   him in                                                                                                                                                   both   the   superior   court   and   Board  



proceedings.   Michaelson informed Seal that the Fund would "need to agree" to the                                                                                                                                                                                                                                                                          



 settlement and that, although the estate could "continue its third party action against . . .                                                                                                                                                                                                                                                                    



Welty," the estate could not further pursue the workers' compensation claim because                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                  3  

doing so would expose Michaelson to additional liability.                                                                                                                                                                                              



                                                        The parties initially planned to use two documents to memorialize the  

                                                                                                                                                                                                                                                                                                                                                            



agreement.                                                 Michaelson  drafted  a  release  stating  that  the  settlement  agreement  

                                                                                                                                                                                                                                                                                                                           



represented "an election pursuant to AS23.30.055to maintain acivil actionagainst Mark  

                                                                                                                                                                                                                                                                                                                                                    



Welty d/b/a North Country Services and David Michaelson." Under the release's terms  

                                                                                                                                                                                                                                                                                                                                                   



                            2                           Alaska Statute 23.30.055 sets out what is referred to as an election of                                                                                                                                                                                           



remedies; it provides, in relevant part:                                                                                                    



                                                         [I]f an employer fails to secure payment of compensation as                                                                                                                                                                                      

                                                        required by [the Act], an injured employee or the employee's                                                                                                                                               

                                                        legal representative in case death results from the injury may                                                                                                                                                                           

                                                        elect to claimcompensation under this chapter, or to maintain                                                                                                                                                          

                                                        an action against the employer at law . . . for damages on                                                                                                                                                                                     

                                                        account of the injury or death.  In that action, the defendant   

                                                        may not plead as a defense that the injury was caused by the                                                                                                                                                                                  

                                                        negligence of a fellow servant, or that the employee assumed                                                                                                                                                           

                                                        the risk of the employment, or that the injury was due to the                                                                                                                                                                                

                                                        contributory negligence of the employee.                                                                                         



                            3                           Under   AS   23.30.045(a)   Michaelson   could   be   liable   for   workers'  

                                                                                                                                                                                                                                                                                                                                

compensation as a project owner if Welty were determined to be Tinker's employer.  A  

                                                                                                                                                                                                                                                                                                                                                                 

project owner is "a person who, in the course of the person's business, engages the  

                                                                                                                                                                                                                                                                                                                                                            

 services   of   a   contractor   and   who   enjoys   the   beneficial   use   of   the   work."  

                                                                                                                                                                                                                                                                                                                                                                               

AS 23.30.045(f)(2).  

                



                                                                                                                                                                                -4-                                                                                                                                                                   7494
  


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

 Seal and the estate "waive[d] any rights to workers' compensation benefits," and Seal                                                                                                                                                                    



 was to notify the Fund that the workers' compensation claims were being withdrawn,                                                                                                                                                  



 with prejudice, against both Michaelson and Welty.                                                                                                           Michaelson required an agreement                                          



 betweenSeal                             and theFund"dismiss[ing]allpotential claimsforever against [Michaelson                                                                                                                   



 and Welty] filed contemporaneously with the . . . [B]oard" before paying the estate.                                                                                                                                                                            



                                         The   Fund   requested   that   the   settlement   be   filed   with   the   Board   and  



 ultimately drafted the settlement agreement as one document.                                                                                                                                  Because the Board had                                        



joined Tinker's father, who was self-represented, the Board had to approve any workers'                                                                                                                                                      

                                                                                                4   The parties do not dispute that the Board approved the  

 compensation claim settlement.                                                                                                                                                                                                                               



 settlement, although the superior court record does not contain a copy signed by the  

                                                                                                                                                                                                                                                   



 Board.  



                                         In late November  2018  Michaelson and Seal stipulated to dismiss the  

                                                                                                                                                                                                                                                             



 estate's claims against Michaelson in the wrongful death suit; the stipulation included,  

                                                                                                                                                                                                                                           



 in bold typeface, a sentence stating  that the estate's claims against Welty were not  

                                                                                                                                                                                                                                                             



 dismissed. The superior court signed the accompanying order dismissing claims against  

                                                                                                                                                                                                                                                   



 Michaelson in December 2018. Welty then sought summary judgment, asking the court  

                                                                                                                                                                                                                                                        



 to dismiss the estate's claims against him based on the settlement agreement.  Welty's  



 only exhibits were:   (1) the settlement agreement without the Board's endorsement;  

                                                                                                                                                                                                                              

 (2) the Board's decision in Shepard v. New City Painting, LLC;5  and (3) an Alaska  

                                                                                                                                                                                                                                                 



                     4                   See  AS 23.30.012(b) (requiring Board review and approval of settlement                                                                                                                        



 when claimant is not represented by Alaska attorney).                                                                                                                 If all parties are represented by   

 Alaska counsel, a settlement is exempt under AS 23.30.012(a) from the requirement for                                                                                                                                                                         

 Board   review   and   approval;   such   a   settlement   agreement   "is   enforceable   as   a  

 compensation order" after it is filed with the Division of Workers' Compensation.                                                                                                                          



                     5                   AWCB Dec. No. 13-0001 (Jan. 10, 2013) (holding that injured employee  

                                                                                                                                                                                                                                          

 unable to collect on civil judgment against uninsured employer was not barred under  

                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                               (continued...)  



                                                                                                                                -5-                                                                                                                      7494
  


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

Workers' Compensation Appeals Commission decision reversing the Board's                                                                      Shepard  



                6  

decision.   



                        Welty asserted that under AS 23.30.055, Seal was "required to elect a  

                                                                                                                                                           

                7  and "[a]s a matter of undisputed fact, . . . has elected workers' compensation  

remedy"                                                                                                                             



benefits."   He contended that Seal had "claimed compensation" by entering into the  

                                                                                                                                                       



settlement  agreement  and  filing  it  with  the  Board  for  approval.                                                     Alleging  that  the  

                                                                                                                                                       



settlement money "came from Allstate," Michaelson's insurer, "through the Alaska  

                                                                                                                                                



Workers'  Compensation  Benefits  Guaranty  Fund,"  Welty  argued  that  the  Board's  

                                                                                                                                              



approval under AS 23.30.012 effectively made the settlement a final judgment of the  

                                                                                                                                                       



Board and showed that Seal had elected compensation.  Relying on the Commission's  

                                            



Shepard  decision,  Welty  contended that Seal had "obtained  a final  decision  in  the  

                                                                                                                                                       



workers'  compensation  proceeding,"  precluding  her  from continuing  the  civil  case  

                                                                                                                                                     



against him.  

                        



                        Seal filed a lengthy opposition with multiple exhibits.  She disputed some  

                                                                                                                                                    



"facts" in Welty's motion; she pointed out, for example, that Welty's assertion about the  

                                                                                                                                                        



settlement money coming through the Fund was incorrect and that his purported citation  

                                                                                                                                                



was "flat out wrong." She disputed Welty's arguments about the settlement agreement's  

                                                                                                                                       



            5           (...continued)  



                                                                                                                              

AS 23.30.055 or AS 23.30.105 from filing a workers' compensation claim).  



            6           State, Workers' Comp. Benefits Guar. Fund v. Shepard                                             , AWCACDec. No.               



                                                

 190       (Dec.         20,       2013),   http://labor.state.ak.us/WCcomm/memos-finals/D_190.pdf  

(reversing Board's decision and holding workers' compensation claim barred under                                                                  

        

AS 23.30.055).  



            7  

                                                                                                                                                    

                        See AS 23.30.055 (providing when employer is uninsured employee "may  

                                                                                                                                                  

elect to claim compensation . . . or to maintain an action against the employer at law").  



                                                                            -6-                                                                    7494
  


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

                                                                                                                            

meaning  and  effect,  noting  that  settlement  agreements  are  interpreted  "using  basic  



                                 

contract principles."  



                                                                                                                          

                     Seal argued that the estate did not elect a compensation remedy against  



                                                                                                                             

Welty, maintaining that she had filed the workers' compensation claim against the Fund  



                                                                                                                                

as a direct beneficiary rather than as the estate's representative and pointing out that she  



                                                                                                                               

believed  the  Fund  improperly  sought  the  other  parties'  joinder.                                 She  relied  on  the  



                                                                                                                             

settlement agreement's language to  support her  argument that she had  settled  with  



                                                                                                              

Michaelson in the civil case, not the workers' compensation case.  She contended that  



                                                                                                                           

if  the  settlement  before  the  Board  represented  an  election  of  remedies  under  



                                                                                                                                      

AS 23.30.055, the Board had sanctioned her choice of the civil suit by granting approval.  



                                                                                                                                    

 The settlement said explicitly that "by entering into [the] Agreement . . . [she] ha[d] . . .  



                                                                                                                            

made an election of remedies under AS 23.30.055 to pursue a civil action against Welty  



                                                                                                                       

and Michaelson." Seal contended that as a matter of law AS 23.30.055 did not foreclose  



                                                                                                                               

her suit because "no [workers' compensation] benefits have been paid" and the civil suit  



                                                                                                                               

had "not been resolved by a judgment." She ended by asserting that Welty's motion was  



                                                                                                                                

"both factually and legally flawed" and noting that Welty was not even a party to the  



                                                                    

settlement agreement filed with the Board.  



                                                                                                                                  

                    In reply Welty insisted that Seal had "received hundreds of thousands of  



                                                                                                                             

dollars of benefits through the workers' compensation process," resulting in a final  



                                                                                                                      

Board  order.           Welty  argued:             "By  receiving  benefits,  she  pursued  her  workers'  



                                                                                                                               

compensation  claims  to  a  successful  conclusion."                               Welty  acknowledged  that  the  



                                                                                                                                

settlement agreement preserved Seal's rights to pursue a civil action but said that the  



                                                                                                                              

parties to the settlement - presumably including the Fund - could "not evade the law,  



                                                                                                                               

as they attempt to do here, by crafting a Settlement Agreement that provides on the one  



                                                                                                                         

hand that a workers' compensation claimant receives benefits approved by the [B]oard  



                                                                                                                          

. . . but at the same time continue to maintain [a civil] action."  According to Welty,  



                                                                -7-                                                         7494
  


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

  Seal's contention that the settlement payment did not represent workers' compensation                                                                                                                                                                                                                                                                                                   



 benefits was "mistaken."                                                                                                            Welty argued that it was immaterial that Allstate, rather than                                                                                                                                                                                                                                         



  a workers' compensation insurance carrier, was the settlement money's source.                                                                                                                                                                                                                                                                                                                                                  



                                                                       The superior courtgranted                                                                                                              summary judgment toWelty. The                                                                                                                                                  court decided  



 there were no material factual disputes and determined first that the plaintiff in the civil                                                                                                                                                                                                                                                                                                                                              



  action and the claimant in the workers' compensation case were the same.                                                                                                                                                                                                                                                                                                                                 The court   



 then decided that the settlement proceeds "constitute workers' compensation benefits                                                                                                                                                                                                                                                                                                                                   



 because the proceeds were derived from a workers' compensation settlement agreement                                                                                                                                                                                                                                                                                                                         



  approved by the Board" under AS 23.30.012.                                                                                                                                                                                                               The court reasoned that because the                                                                                                                                                   



  agreement was "equivalent to an order of the Board" after the Board approved it, "the                                                                                                                                                                                                 



  settlement proceeds are equivalent to a workers' compensation award" and therefore                                                                                                                                                                                                                                                                                                                               



 "compensation" as a matter of law.                                                                                                                                                     According to the court, "the source of the proceeds                                                                                                                                                                         



 ha[d] no bearing on [the] outcome"; "[t]he only material fact is that the Board approved                                                                                                                                                                                                                                                                                                                         



 the Settlement Agreement."                                                                                                                        The court said that under any interpretation of the election                                                                                                                                                                                                          



 of remedies issue, Seal had elected workers' compensation as her remedy; the court                                                                                                                                                                                                                                                                                                                                                   



 concluded that allowing the negligence action to proceed would "contravene[] the intent                                                                                                                                                                                                                                                                                                                                             



 of   the   statute   requiring   an   election."     Addressing  Seal's   argument   about   applying  



 contract interpretation principles, the court acknowledged the settlement agreement's                                                                                                                                                                                                                                                                                                            



  express languagebut decided that "self-serving contract                                                                                                                                                                                                                                     language"served                                                                          to "contravene  



 the legal effects of [the Act] under                                                                                                                                                             the undisputed                                                                      facts."     The   court entered                                                                                                                   final  



judgment against Seal.                                                                                                   Seal, as personal representative of Tinker's estate, appeals.                                                                                                                                                                                                               



 III.                               STANDARD OF REVIEW                                                                              

                                                                                                                                                                                                                                                                                                                                              8  "Questions regarding  

                                                                       We review the grant of summary judgment de novo.                                                                                                                                                                                                                                                                                          



 the interpretation and application of a statute are questions of law to which we apply our  

                                                                                                                                                                                                                                                                                                                                                                                                                                                 



                                    8  

                                                                                                                                                                                                                                                                                                                                                                                                                                 

                                                                       Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).  



                                                                                                                                                                                                                           -8-                                                                                                                                                                                                                                    7494  


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

                                               9  

independent judgment."                            Contract interpretation generally is a question of law that we                                                  



review de novo, but interpretation can involve factual questions "when the meaning of                                                                               

contract language is dependent on conflicting extrinsic evidence."                                                              10  



IV.          DISCUSSION  



                                                                                                  

             A.           Relevant Workers' Compensation Principles  



                                                                                                                                                                  

                          Workers'  compensation  generally  is  the  exclusive  remedy  that  an  



                                                                                                                                                                 

"employee, the employee's legal representative, . . . parents, dependents, next of kin, and  



                                                                                                                                                                    

anyone otherwise entitled to recover damages" has against an employer "on account of  

                                                                                    11   Because the exclusive remedy provision  

                                                                                                                                                      

[an] injury or death" covered under the Act. 



applies  to  any  action  "on  account  of  the  injury,"  the  claimant's  identity  does  not  

                                                                                                                                                                 



determine whether the exclusive remedy provision bars suit.  We have, for example,  

                                                                                                                                                      



interpreted the phrase "on account of the injury" in AS 23.30.055 as barring a spouse's  

                                                                                                                                                       



loss of consortium claim against an  employer  because her  claim resulted  from her  

                                                                                                                                                                 

husband's work-related injury for which he received compensation.12   If a death is work  

                                                                                                                                                              



related and an employer has compensation coverage, the exclusive remedy provision  

                                                                                                                                                     

generally bars the worker's estate's wrongful death claim against the employer.13  

                                                                                                                                       



                          If an employer is uninsured, AS 23.30.055 permits "an injured employee  

                                                                                  



or the employee's legal representative in case death results from the injury [to] elect to  

                                                                                                                                                                    



claim compensation under [the Act], or to maintain an action against the employer at law  

                                                                                                                                                                 



             9            State v. Jeffery             , 170 P.3d 226, 229 (Alaska 2007).                     



             10           Norville v. Carr-Gottstein Foods  Co.,  84 P.3d 996,  1000 n.1  (Alaska 2004).  



             11           AS  23.30.055.  



             12           Wright  v.  Action   Vending  Co.,  544  P.2d  82,  86  (Alaska   1975).  



             13           Taylor  v.  Se.-Harrison   W.  Corp.,  694  P.2d   1160,   1161  (Alaska   1985).  



                                                                                 -9-                                                                          7494
  


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

 . . . for damages on account of the injury or death." An uninsured employer is prohibited                                                                           



by AS 23.30.055 from asserting certain defenses, such as contributory negligence, in a                                                                                                  



civil suit.           But the Act, and therefore AS 23.30.055, applies only if an injury arises out                                                                                 

of and in the course of employment.                                           14  



                             The Board is an administrative agency with limited jurisdiction prescribed  

                                                                                                                                                                    

by the Act; it cannot adjudicate civil claims.15  Parties cannot by stipulation expand an  

                                                                                 



administrative  agency's  subject  matter  jurisdiction  any  more  than  they  could  by  

                                                                                                                                                                                    

 stipulation expand a court's jurisdiction;16 the legislature determines an administrative  

                                                                                                                            

agency's jurisdiction.17   When resolving disputes about the Act's applicability, we have  

                                                                                                                                                                                

held that the superior court and the Board have concurrent jurisdiction.18                                                                                       Included in  

                                                                                                                                                                                      



               14            AS  23.30.010.  



               15  

                             Gunter   v.   Kathy-O-Estates,  87   P.3d   65,   69   (Alaska   2004)   (describing  

Board's  authority  as  "limited  to  the  powers  and  duties  prescribed  by  [the  Act]");  see  also  

Alaska  Pub.  Interest  Research  Grp.  v.  State,  167  P.3d  27,  36-37  (Alaska  2007)  ("Neither  

the  Appeals  Commission  nor  the Board has  jurisdiction  to  hear  any  action  outside  of  a  

workers'  compensation  claim.").  



               16            20 AM.  JUR.   2D   Courts   §  90  (2015);  see  also  Holdsworth v.   Greenwood  

                                    

Farmers  Coop.,  835  N.W.2d  30,  55  (Neb.  2013)  (holding  parties  could  not  "by  private  

agreement"  deprive  workers'  compensation  court  of  jurisdiction),  superseded  by  statute  

on  other  grounds  as  recognized  in  Dragon  v.  Cheesecake  Factory,  915  N.W.2d  418,  422  

(Neb.  2018).   



               17            Alaska State Comm'n for Human Rights v.Anderson , 426 P.3d 956, 962-63  

                                                                                                                                                                            

(Alaska 2018) ("Administrative agencies are created by statute 'and therefore must find  

                                                                                                                                                                                  

within the statute the authority for the exercise of any power they claim.' " (quoting  

                                                                                                                                                                       

McDaniel v. Cory, 631 P.2d 82, 88 (Alaska 1981))).  

                                                                                                                  



               18            Ehredt v. DeHavilland Aircraft Co. of Canada, 705 P.2d 446, 450 (Alaska  

                                                                                                                                                                          

 1985) (citing Alaska  Workmen's Comp. Bd. v. Marsh (Marsh I), 550 P.2d 805, 808 n.8  

                                                                                                                                                                                    

(Alaska  1976)); see also Nelson v. Municipality of Anchorage , 267 P.3d 636, 643-44  

                                                                                                                                                                           

                                                                                                                                                             (continued...)  



                                                                                         -10-                                                                                  7494
  


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

disputes about the Act's applicability are disputes related to whether the injured person                                                     



                                                                                19  

is an employee or an independent contractor.                                          



                        AlaskaStatute23.30.012 permitsresolving aworkers' compensation claim  

                                                                                                                                                 



dispute by filing with the Division of Workers' Compensation a settlement agreement  

                                        

meeting certain requirements.20  When all parties are represented by Alaska attorneys the  

                                                                                                                                                     

statute  does  not  mandate  Board  approval,21                                   and  the  agreement  is  enforceable  as  a  

                                                                                                                                                        

compensation order.22                    If a party is not represented by an Alaska attorney, and in other  

                                                                                                                                                 

specific circumstances, a Board panel must review a proposed settlement agreement.23  

                                                                                                                                                            



Once  the  Board  reviews  and  approves  a  settlement  agreement,  "the  agreement  is  

                                                                                                                                                      



            18          (...continued)  



                                                                                                                                                

(Alaska 2011)  (recognizing  concurrent superior  court and Board jurisdiction  about  

                                                                                                                                                 

"employee's status at the time of injury"); Himschoot v. Shanley, 908 P.2d 1035, 1040  

                                                                                                                                                   

(Alaska 1996) (affirming superior court's jurisdiction to decide whether accident was  

           

work related).  



            19          See,  e.g.,  Odsather  v.  Richardson,  96  P.3d  521,  522  (Alaska  2004)  

                                                                                                                                               

(reversing summary judgment and remanding to determine employee or independent  

                                                                                                                                    

contractor status); see also Searfus v. N. Gas Co., 472 P.2d 966, 969 (Alaska 1970)  

                                                                                                                                               

(adopting "relative nature of the work" test to determine employment status).   The  

                                                                                                                                                  

legislature  in  2018  amended  the  Act  to  exclude  independent  contractors  from  the  

                                                                                                                                                    

definition of "employee"and toprovideastatutory test for independent contractor status.  

                                                                                                                                                            

Ch. 91, § 17, SLA 2018.  

                                  



            20          See also 8 Alaska Administrative Code (AAC) 45.160 (2011) (setting out  

                                                                                                                                                     

necessary provisions in Board settlement).  

                                                                             



            21          AS 23.30.012.  

                               



            22          AS 23.30.012(a).  

                               



            23          AS  23.30.012(b)  (requiring review when  claimant or beneficiary  is not  

                                                                                                                                                    

represented by Alaska attorney, beneficiary is minor or incompetent, or claimant waives  

                                                                                                                                              

future medical benefits).  

                            



                                                                         -11-                                                                    7494
  


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

enforceable the same as an order or award of the [B]oard."                                     24  The statute thus does not           



always  require   Board   approval   for   a   settlement   agreement   to   be   enforceable   as   a  



compensation order.   

                                                                                       25   An employee may file a claim  

                      The legislature created the Fund in 2005.                                                                     



against the Fund only when an employer "fails to meet the requirements of AS 23.30.075  

                                                                                                                            

and . . . fails to pay compensation and benefits due to the employee under [the Act]."26  

                                                                                                                                              

Civil penaltypaymentsfromuninsured employers and appropriations financetheFund.27  

                                                                                                                                              



Alaska Statute 23.30.082 contemplates that the Fund may have insufficient reserves to  

                                                                                                                                         



pay all claims and provides that "when sufficient money has been deposited . . . and  

                                                                                                                                      



appropriated," the Fund must "satisfy unpaid claims in the order in which the claims  

                                                                                                                                  

were originally filed."28  

                           



           B.	        Application Of Relevant Workers' Compensation Principles To This  

                                                                                                                                     

                      Case  



                      Seal argues that the superior court erred by failing to distinguish her status  

                                                                                                                                    



as  personal  representative  of  an  estate  from  her  status  as  a  potential  workers'  

                                                                                                                             

compensation  beneficiary.29  

                                                                                                                             

                                                   She  also  contends  that  she  never  made  a  workers'  



           24        Id.  



           25         Ch.   10,  §  31,  FSSLA  2005.  



           26         AS   23.30.082(c).     Under   the   Act   "   'compensation'   means  the   money  



allowance  payable  to  an  employee  or  the  dependents  of  the  employee  as  provided  for  in  

[the  Act],  and  includes  the  funeral  benefits  provided  for  in  [the  Act]."   AS  23.30.395(12).   



           27         AS 23.30.082(a).  

                             



           28         AS 23.30.082(e).  

                             



           29         Seal's assertion that a claim on behalf of a deceased worker can be filed  

                                                                                                                                     

against the Fund only by a dependent is incorrect but immaterial.  A deceased worker's  

                                                                                                                              

                                                                                                                      (continued...)  



                                                                   -12-	                                                            7494
  


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

compensation claim against Welty in her capacity either as a possible beneficiary or as                                                                                                



personal representative, insisting that her claim was against only the Fund.                                                                                      In her view     



any election of remedies required under AS 23.30.055 cannot bar her claim because she                                                                                               



elected a workers' compensation remedy against the Fund alone, but she elected a civil                                                                                           



remedy against Welty and Michaelson.                                                   She notes that she "could only have recovered                                  

                                                                                                                                        30   but that to settle her  

a maximum of $30,000" for workers' compensation benefits                                                                                                                            



wrongful death suit against Michaelson Allstate paid $300,000. She argues that joinder  

                                                                                                                                                                            



of Welty and Michaelson to the workers' compensation claim "was improper" and does  

                                                                                                                                                                                  



not  change  the  legal  analysis  in  any  event.                                                     She  maintains  that  the  superior  court  

                                                                                                                                                                               



conflated distinct legal entities and roles in making its decision.  

                                                                                                                                           



                             Because the exclusive remedy provision is related to claims made "on  

                                                                                                                                                                                   

                                                                  31 whether Seal filed the workers' compensation claim as  

account of the injury or death,"                                                                                                                                                       

                                                    



a potential beneficiary or as personal representative of the estate was immaterial to the  

                                                                                                                                                                                     

                                                                                  32       Had  Seal  or  the  estate  received  workers'  

questions  before  the  superior  court.                                                                                                                               

                                                                     



              29             (...continued)  



                                                                                                                                                                                     

estate can claim funeral expenses under AS 23.30.215 as well as any compensation the  

                                                                                                                                                                       

worker may have been entitled to before death.   AS 23.30.195 (allowing award of  

                                                                                                                                                                           

impairment or disability compensation after death); see, e.g., Estate of Stark, AWCB  

                                                                                                                                                                          

Dec. No. 05-0171 (June 23, 2005) (awarding estate medical and transportation benefits  

                                                   

and funeral expenses).  



              30             Death             benefits               include               up         to       $10,000                in        funeral              expenses.  

                                                                                                                                                                                             

AS 23.30.215(a)(1). In some circumstances parents of a worker who dies on the job may  

                                                                                                                                                                                   

receive compensation of up to "$20,000 in the aggregate."  AS 23.30.215(a)(4).  

                                                                                                                                          



              31             AS 23.30.055; see also Wright v. Action Vending Co., 544 P.2d 82, 86  

                                                                                                                                                                             

(Alaska 1975) (holding that AS 23.30.055 barred wife's loss of consortium claim for  

                                                                                                                                                                                     

husband's work-related injury).  

                                                     



              32             See AS 23.30.215(a) ("If the injury causes death, the compensation is . . .  

                                                                                                                                                                                         

                                                                                                                                                              (continued...)  



                                                                                         -13-                                                                                   7494
  


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

compensation benefits, the estate's wrongful death suit would be barred by the exclusive                                    



                             33  

remedy provision.                                                                                                                     

                                 Seal cites a number of our cases holding that AS 23.30.055 did not  



                                                                                                                             

bar an employee's injury-related civil action even though an employeereceivedworkers'  



                                                                                                                                     

compensation, but those cases are distinguishable.  She did not allege an intentional tort  

                         34  illegality in Tinker's contract,35  or a maritime claim against Welty.36  

                                                                                                                            

in the civil suit, 



                     It also was immaterial whether Seal's workers' compensation claim was  

                                                                                                                                    



against the Fund or Welty.  The Fund has no independent liability to a compensation  

                                                                                                                    



claimant.  When an employer fails to provide compensation coverage and "fails to pay  

                                                                                                                                     

compensation and benefits due,"37  the Act allows a claimant to file a claim against the  

                                                                                                                                      



           32        (...continued)  



                                                                                                                                            

payable  in  the  following  amounts  to  or  for  the  benefit  of  the  following  persons:  

                                                                                                                                        

(1) reasonable and necessary funeral expenses not exceeding $10,000; . . . (4) if there is  

                                                                                                                                          

no widow or widower or child or children, then for the support of father, [or] mother, . . .  

                                                                                                                                      

if dependent upon the deceased at the time of injury, . . . not to exceed $20,000 in the  

                        

aggregate . . . .").  



           33        See Taylor v. Se.-Harrison W. Corp., 694 P.2d 1160, 1161 (Alaska 1985).  

                                                                                                                                



           34        See Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977) (holding that  

                                                                                                                                    

exclusive  remedy  provision  did  not  shield  co-worker  who  allegedly  committed  

                                                                                                                        

intentional tort).  

                   



           35        See Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 251, 253-54  

                                                                                                                               

(Alaska 1976) (holding that exclusive remedy provision did not preclude suit against  

                                                                                                                               

employer who knowingly hired employee in violation of child labor law, even though  

                         

employee had received compensation benefits).  

                                                              



           36        See Barber v. New Eng. Fish Co., 510 P.2d 806, 811-12 (Alaska 1973)  

                                                                                                                                 

(holding that receipt of workers' compensation benefits did not bar unseaworthiness  

                                                                                                                

claim under federal maritime law).  

                                                



           37        AS 23.30.082(c); see also  8 AAC 45.177 (detailing procedure for claim  

                                                                                                                                  

when employer is uninsured and providing that Fund "may not be obligated to pay"  

                                                                                                                                   

                                                                                                                    (continued...)  



                                                                  -14-                                                            7494
  


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

Fund. Because                 the Fund's liability derives solely froman                                     employer's liability, any claim  



against the Fund necessarily required a claim against Welty.                                           



                          Welty contested the Act's applicability by contending that Tinker was an                                                                



independent contractor and not an employee; under our precedent the Board and the                                                                                

                                                                                          38   The parties in the civil case discussed  

superior court thus had concurrent jurisdiction.                                                                                                     



the  possibility  of  bifurcating  trial,  with  employee  status  tried  separately  before  a  

                                                                                                                                                                    

negligence trial.39  The settlement set out Tinker's employee status as an issue but did not  

                                                                                                                                                                 



resolve it, and for the Act's purposes the issue has not been determined as a factual  

                                                                                                                                                         



matter.           Until  Tinker's  employee  status  is  decided,  the  Act's  applicability  is  not  

                                                                                                                                                                



established.  



                          Finally, in light of statutory provisions governing the Fund's financing and  

                                                                                                                                                                

                                          40  we see nothing supporting Welty's superior court assertion that  

its payment of claims,                                                                                                                                          

                             



Allstate paid the settlement money "through" the Fund.  Nothing in the statute suggests  

                                                                                                                                                       



the Fund may act as some type of conduit for private settlement funds.  

                                                                                                                                         



             37           (...continued)  



                                                                                                                                                                  

claim unless,  inter alia, parties stipulate that "employee's claim is compensable" or  

                   

Board so determines).  



             38           See, e.g., Nelson v. Municipality of Anchorage, 267 P.3d 636, 643-44  

                                                                                                                                                        

(Alaska 2011)  (recognizing  concurrent superior  court  and Board jurisdiction  about  

                                                                                                                                                           

"employee's status at the time of injury").  

                                                                 



             39           See Nickels v. Napolilli, 29 P.3d 242, 246 (Alaska 2001) (summarizing trial  

                                                                                                                                                                

court proceedings, including bench trial to determine whether worker was employee for  

                                                                                                                                                                  

Act's purposes).  

                                  



             40           AS 23.30.082(a).  

                                  



                                                                               -15-                                                                          7494
  


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

                    C.                 The Settlement Agreement                         



                                       The   superior   court   decided   the   settlement   agreement,   which   the   Fund  



drafted as a single document, was "a workers' compensation settlement agreement"                                                                                                                                        



because the Board                                        had  approved   it; the court explained that the only material fact                                                                                                                   



relevant to its decision was the Board's approval.                                                                                                   Although the court mentioned the                                                             



parties' dispute about the agreement's meaning and purpose, the court neither cited nor                                                                                                                                                          



applied contract interpretation principles until after determining the agreement was "a                                                                                                                                                             



workers' compensation settlement agreement."  The court viewed the matter as one of                                                                                                                                                                  



statutory   construction,   possibly   because   the   parties   focused   their   arguments   on  

                                                                                                                        41        According to the court, the settlement's  

AS 23.30.055 and election of remedies.                                                                                                                                                                                 



language "contravene[d] the legal effects of [the Act]" by using a single document to  

                                                                                                                                                                                                                                                     



resolve   both   the   wrongful   death   claim   against   Michaelson   and   the   workers'  

                                                                                                                                                                                                                              



compensation claim in its entirety; the Board's approval demonstrated that Seal had  

                                                                                                                                                                                                                                                



"elected  an  administrative  remedy,"  received  workers'  compensation,  and  thereby  

                                                                                                                                                                                                                                   



foreclosed her ability to continue the wrongful death claim against Welty.  

                                                                                                                                                                                                                        



                                       On appeal Welty acknowledges that Seal "plainly did not intend to lose her  

                                                                                                                                                                                                                                                  



ability to sue Welty," but he asserts that under AS 23.30.055 Seal nonetheless elected a  

                                                                                                                                                                                                                                                        



workers'  compensation  remedy  by  entering  into  the  settlement  agreement.                                                                                                                                                          Welty  

                                                                                                                                                                                                                                       



suggests that Seal might "rescind" the settlement agreement, but he takes no position on  

                                                                                                                                                                                                                                                    



that issue's merits.  

                                                         



                                       Seal  maintains  that  the  settlement  agreement  was  a  resolution  of  the  

                                                                                                                                                                                                                                                



wrongful death claim against Michaelson, not the election of a workers' compensation  

                                                                                                                                                                                                                  



                   41                  As   we   have   noted,   the   applicability   of   AS   23.30.055   had   not   been  



established when Welty sought summary judgment.                                                                                                          We therefore need not decide the                                                         

AS 23.30.055 election of remedies issue that the parties presented to the superior court                                                                                                                                                    

and briefed on appeal.                                             



                                                                                                                        -16-                                                                                                                 7494
  


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

claim.    She contends that her ability to continue the civil suit against Welty was a                                                                                                                                                            



material term of the contract and that the superior court could not interpret the contract                                                                                                                                     



"contrary to the clear intent of the parties."                                                                              



                                      We conclude that the superior court erred by failing to first interpret the                                                                                                                            



 settlement agreement to determine the contracting parties' reasonable expectations in                                                                                                                                                          



light   of   the   requirement   that   Seal   elect   between   a   civil   remedy   and   a   workers'  



compensation remedy.  We interpret the agreement as establishing Seal's election of a                                                               



civil   remedy   rather   than   a   workers'   compensation   remedy  and   resolving   both   the  



wrongful death and workers' compensation claims against Michaelson. This purpose is                                                                                                                                                               



evident from the settlement's language and is supported by the extrinsic evidence Seal                                                                                                                                                    



provided the court.  As required to elect the civil remedy, Seal dismissed the workers'                                                                                                                                     

                                                                                               42 - because Michaelson's (and the Fund's) potential  

compensation claim in its entirety                                                                                                                                                                                           



liability  for  compensation  benefits  was  dependent  on  Welty's  potential  liability  as  

                                                                                                                                                                                                                                               

                                                     43  - and she received no compensation for that claim.  

Tinker's employer                                                                                                                                                                             

                          



                                      A settlement agreement, includingaworkers' compensation settlement, "is  

                                                                                                                                                                                                                                               

interpreted  in  the  same  manner  as  any  other  contract."44                                                                                                                      The  goal  of  contract  

                                                                                                                                                                                                                             

interpretation "is to give effect to the reasonable expectations of the parties."45                                                                                                                                                           To  

                                                                                                                                                                                                                                           



determine the parties' expectations, "the court looks to the language of [a] disputed  

                                                                                                                                                                                                                             



provision, the language of other provisions of the contract, relevant extrinsic evidence,  

                                                                                                                                                                                                                           



                   42                 See  AS  23.20.055.  



                   43                 See  AS  23.30.045(a),  .082(c).  



                   44                  Williams  v.  Abood ,  53  P.3d   134,   144  (Alaska  2002)  (quoting  Cameron  v.  



Beard,  864  P.2d  538,  545  (Alaska   1993)).  



                   45                 Peterson  v.   Wirum,  625  P.2d  866,  872  n.10  (Alaska   1981).  



                                                                                                                     -17-                                                                                                               7494
  


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

                                                                                              46  

and case law interpreting similar provisions."                                                      Contract interpretation is usually a                                  



question of law; a court may consider " 'extrinsic evidence surrounding disputed terms,'                                                                       



. . . to determine if those terms are ambiguous - that is, if they 'are reasonably subject                                                                     

                                                           47    "When the court finds ambiguity, it must attempt to  

to differing interpretation.' "                                                                                                                                         

resolve it by determining the reasonable expectations of the contracting parties."48  

                                                                                                                                                                     



                           This case is unusual because the dispute about the contract's meaning is  

                                                                                                                                                                         



related to its effect as a whole rather than a specific term's construction.  Moreover, the  

                                                                                                                                                                       



dispute is not between contracting parties; Welty was not a party to the contract.  The  

                                                                                                                                                                     



superior  court  nonetheless  needed  to  consider  the  contracting  parties'  reasonable  

                                                                                                                                                      



expectations and their reasons for entering into the contract before deciding that the  

                                                                                                                                                                      



contract was solely a workers' compensation claim settlement.  

                                                                                                        



                           Any possible ambiguity in the settlement came from using one document  

                                                                                                                                                         



rather than two to finalize what in essence was a global settlement of two claims in  

                                                                                                                                                                        

                                  49     We have held that global settlements of workers' compensation  

different forums.                                                                                                                                

                   



             46           Id.  



             47           Zito  v.  Zito,  969 P.2d   1144, 1147  n.4  (Alaska   1998)  (quoting   Wessells  v.  



State,  Dep't  of  Highways,  562  P.2d   1042,   1046  (Alaska   1977)).  



             48           Id.  



             49            See  Rosales   v.  Icicle   Seafoods,  Inc.   (Rosales  I),   316   P.3d   580,   584-85  



(Alaska  2013)   (describing global   settlement   of  workers'   compensation   and  maritime  

claims  as  having  "two  separate  documents,  one  for  each  case");  see  also  Dimeff  v.  Estate  

of   Cowan,   300   P.3d   1,   4   (Alaska   2013)  (describing   global   settlement   of   claims   in  

different  forums  using  one  document).  



                           At   least   one   state   court  has   disallowed   using   a   standard   workers'  

compensation  release  form  to  settle  claims  outside  the  workers'  compensation  system  

and   suggested   that   parties   to   such   agreements   execute   two   documents,   one   for   the  

workers'  compensation  claim  and  one  for  the  claim  outside  the  workers'  compensation  

                                                                                                                                                  (continued...)  



                                                                                  -18-                                                                            7494
  


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

                                                                                                                               50  

claims   and   related   civil   claims   are   permissible;                                                                         as   a   policy   matter   nothing   was  



impermissible in                             a settlement encompassing                                               both   the wrongful death                                         and   workers'  



compensation   claims.     Welty   asserts   that   Seal   "might   have   a   valid   point"   about  



interpreting   the   settlement   had   she   dismissed   her   workers'   compensation   claim  



"unilaterally" and "without any kind of agreement," but he instead concludes that she                                                                                                                             



effectively elected workers' compensation by "dismiss[ing] her workers' compensation                                                                                                    



claims . . . as part of a settlement."                                                   In short, Welty seizes on the form of an agreement                                                     



to which he was not a party in an attempt to escape liability for Tinker's death.                                                                                                       



                                  Wehaveupheld using asettlement                                                        agreement to decidewhichforumwould                                                  



hear a claim when the compensability of an injury was at issue and a claimant filed both                                                                                                                        

                                                                                                                                            51     In Marsh I different insurers  

a workers' compensation claim and a negligence action.                                                                                                                                                 



participated  in  a  Board  proceeding  and  a  related  court  proceeding;  the  employer's  

                                                                                                                                                                                             



general liability insurer and the employee entered into a settlement that "shift[ed] the  

                                                                                                                                                                                                                   



litigation from the superior court to the compensation board, thus placing the burden of  

                                                                                                                                                                                                                     



defense  on  the  [employer's]  compensation  carrier  instead  of  its  general  liability  

                                                                                                                                                                                                     

carrier."52                  We held that the agreement was not void as against public policy53   and  

                                                                                                                                                                                                                 



required the Board to hear the merits of that case, even though the Board argued that the  

                                                                                                                                                                                                                   



                 49               (...continued)  



system.   See  Claxton  v.   Waters,  96  P.3d  496,  502-03  (Cal.  2004).  



                 50              Rosales   I,   316   P.3d   at   585   (holding  in   dispute   about   settlement   of  



compensation  and  maritime  claims  that  "nothing  prohibits  a  global  settlement  of  related  

claims").  



                 51              Marsh I, 550 P.2d 805, 806-08 (Alaska 1976).  

                                                                                                                                       



                 52              Id. at 807.  

                                                 



                 53              Id. at 808.  

                                                 



                                                                                                        -19-                                                                                                  7494
  


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

settlement converted the Board proceeding into one for a declaratory judgment, which                                                         

was beyond its jurisdiction.                    54  



                        Similar to Marsh I, the parties to the two proceedings were not identical;  

                                                                                                                                       



in  this  case  the  settlement  agreement  specifically  dismissed  the  Board  proceeding,  

                                                                                                                                  

shifting the litigation from the Board to the superior court.55                                           In Marsh I we considered  

                                                                                                                                    



the parties' intent in settling and gave it effect; we do the same in this matter.  

                                                                                                                           



                       Thesettlement agreementlanguageread as awholesupports theconclusion  

                                                                                                                                     



that it was a global settlement in which the estate elected to pursue the wrongful death  

                                                                                                                                              



case and forgo any potential workers' compensation benefits. The settlement agreement  

                                                                                                                                     



contained detailed information about both claims, and the caption included both the  

                                                                                                                                                 



Board's case number and the superior court case number, supporting the conclusion that  

                                                                                                                                                 



the settlement affected both claims.  The settlement agreement explicitly stated that the  

                                                                                                                                                  



estate elected the wrongful death action as its remedy against both Michaelson and  

                                                                                                                                                



Welty:  "Seal and Michael Tinker also agree that by entering into this Agreement, Seal  

                                                                                                                                                



has made an election of remedies under AS 23.30.055 to pursue a civil action against  

                                                                                                     



 Welty and Michaelson . . . ."  (Emphasis added.)  No money was explicitly allocated to  

                                                                                                                                                    

settlement of the workers' compensation claim in the settlement agreement,56  and the  

                                                                                                                                                  



settlement agreement's provisions for costs and attorney's fees were based on Alaska  

                                                                                                                                           



            54         Id.    at    807-09.      The    Board    ultimately    decided    the    claim    was  not  



compensable.   Marsh v. Alaska Workmen's Comp. Bd.                                              , 584 P.2d 1134, 1135 (Alaska             

 1978).  



            55          Cf. Marsh I, 550 P.2d at 808-09 (observing that civil suit was "pending in  

                                                                                                                                                    

a technical sense only" after employee "contractually abandoned his right to litigate his  

                                                                                                                                                  

tort claim" when he entered into contingent settlement).  

                                                                              



            56         See Rosales I, 316 P.3d 580, 582-83 (Alaska 2013) (describing allocation  

                                                                                                                                      

of global settlement funds between maritime and workers' compensation cases); see also  

                                                                                                                                                

Marsh I, 550 P.2d at 807 (describing settlement agreement).  

                                                                                     



                                                                        -20-                                                                  7494
  


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

Civil   Rules   79   and   82,   governing   civil   cases,   not   on   the   Act   and   ancillary   Board  



                     57  

regulations.               



                        The   parties   agree   that   Allstate   paid   the   settlement   money   under  

                                                                                                                                                 

                                                                                                                                                 58  The  

Michaelson's landlord liability policy, not under a workers' compensation policy.                                                                      

                                                                                                                                      



settlement  agreement  does  not  indicate  that  Allstate  was  a  party  to  the  Board  

                                                                                                                                                 

proceedings,  as  a  compensation  carrier  would  be.59                                             Although  Welty  contends  the  

                                                                                                                                                       



settlement  funds'  source  is  immaterial  to  the  legal  conclusion  that  the  funds  were  

                                                                                                                                                    

compensation benefits,60 Allstate fulfilling its contractual obligation under Michaelson's  

                                                                                                                                     



landlord  liability  policy  evinces  an  intent  to  settle  a  tort  claim,  not  a  workers'  

                                                                                                                                            



compensation claim.  If the injury were not conceivably within Allstate's contract with  

                                                                                                                                                     



Michaelson, Allstate would have no reason to pay the estate a significant sum of money,  

                                                                                                                                                



as it agreed to do in the settlement.  

                                                                 



            57          See  AS 23.30.145 (authorizing Board to award attorney's fees and costs);                                                



8 AAC 45.180 (setting out procedure for Board award of attorney's fees and costs).                                                           



            58          The Act has provisions specific to workers' compensation insurance, see  

                                                                                                                                                       

AS 23.30.025, .030, and it defines "carrier" as "a person authorized to insure under [the  

                                                                                                                                                      

Act] and includes self-insurers," AS 23.30.395(6).  There is no suggestion in the record  

                                                                                                                                                  

that Allstate's policy with Michaelson met the statutory standards.  

                                                                                                       



            59          8 AAC 45.170(b)(2) (designating "employer and its insurance carrier, if  

                                                                                                                                                          

any" as parties to proceeding).  

                                                         



            60          The out-of-state case Welty cites to support his argument is unpersuasive.  

                                                                                                                                                               

Workers' compensation claim coverage by the errors and omissions insurer of a broker  

                                                                                                                                                 

who  failed  to  procure workers'  compensation insurance on a client's behalf is not  

                                                                                                                                                       

analogous to this dispute.  See Vogel v. Hochhalter, 516 N.W.2d 214, 216-17 (Minn.  

                                                                                                                                                 

App. 1994).  The Minnesota court observed that the employer had "fulfilled the duty  

                                                                                                                                                     

imposed on employers" under Minnesota law by "appl[ying] for workers' compensation  

                                                                                                                                    

insurance through his agent"and thus should be granted the protection against tort claims  

                                                                                                                                                  

provided to insured employers.  Id.  No one in Seal's case had compensation coverage,  

                                                                                                                                            

and Welty's general liability insurer denied coverage for the claim.  

                                                                                                                           



                                                                           -21-                                                                    7494
  


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

                                               Extrinsic evidence also supports interpreting the agreement as an election                                                                                                                                                             



and settlement of the tort claim against Michaelson with a dismissal of the workers'                                                                                                                                                                                              



compensation claim.  Seal plainly told the Board her primary goal was pursuing a tort                                                                                                         



remedy when she filed her written workers' compensation claim.                                                                                                                                                                         The Board, "with the                                             



agreement of the parties," delayed action in the compensation proceeding so that Seal                                                                                                                                                                                                              



could pursue the civil litigation.                                                                                Seal supplied the superior court email correspondence                                                                                    



between her attorney and Michaelson's attorney showing an intent to settle the wrongful                                                                                                                                                                                           



death action. She also provided an earlier draft settlement agreement from Michaelson's                                                                                                                                                                            



attorney. Under its terms she would have settled with Michaelson and agreed to dismiss                                                                                                                                                                                                  



the compensation claim; an accompanying email asked the estate to provide a separate                                                                                                                                                                                              



agreement with the Fund to dismiss the compensation claim. Seal asserted that the Fund                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                61   and the  

then requested the settlement be submitted to and approved by the Board,                                                                                                                                                                                                                               



agreement is on Department of Law letterhead.  Welty's attorney was included in the  

                                                                                                                                                                                                                                                                                                       



email correspondence related to the settlement, and Welty offered no evidence rebutting  

                                                                                                                                                                                                                                                                                   



 Seal's evidence or her assertion about the Fund's request that the settlement be placed  

                                                                                                                                                                                 



before the Board.  

                                      



                                               Weltycontendsthatthesettlementagreement violates publicpolicy because  

                                                                                                                                                                                                                                                                                       



it would allow the estate to continue the wrongful death action against him after the  

                                                                                                                                                                                                                                                                                                       



estate received workers' compensation.  But we find nothing in the record supporting  

                                                                                                                                                                                                                                                                            



Welty's argument that the money paid to Seal was a workers' compensation benefit or  

                                                                                                                                                                                                                                                                                                           



that the parties to the settlement agreement were attempting to "evade the law" by  

                                                                                                                                                                                                                                                                                                        



drafting one document. Nor is there support for the superior court's implication that the  

                                                                                                                                                                                                                                                                                                        



                        61                      Seal   included   in   her   supplemental   excerpt   of   record   more   emails   to  



substantiate these arguments.                                                                               But the emails do not appear to be part of the superior                                                                                                                  

court record, and we disregard them.                                                                                                 



                                                                                                                                                  -22-                                                                                                                                           7494
  


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

contracting parties attempted to "avoid the effects of the law" through "self-serving                                                         



contract language."                     



                                                                                                                                                                    62  

                          We repeatedly have held that settlements of disputed claims are favored.                                                                       



                                                                                                                                                                 

We also have said that "[a]s a matter of judicial policy the court should maintain and  

                                     63   Although we have refused to enforce settlements that are against  

                                                                                                                                                          

enforce contracts." 

public policy,64  Welty's public policy argument rests entirely on the faulty premise that  

                                                                                                                                                                 



thesettlement was aworkers' compensationsettlementprovidingworkers'compensation  

                                                                                                                                              



benefits to the estate.  

                             



             D.	          Alaska  Statute  23.30.012  And  Its  Application  To  The  Settlement  

                                                                                                                                                

                          Agreement  



                          The superior court interpreted AS 23.30.012 to mean that the settlement  

                                                                                                                                                    



funds "consitute[d] 'compensation' under [the Act] as a matter of law."  Because under  

                                                                                                                                                             



AS 23.30.012 a Board-approved agreement "is enforceable the same as an order or  

                                                                                                                                                                   



award of the Board," the court reasoned that "the settlement proceeds are equivalent to  

                                                                                                                                                                    



a workers' compensation award," even if the settlement agreement made plain Seal's  

                                                                                                                                                            



election of the civil suit as a remedy.  

                                                                         



             62           E.g.,  Kazan v. Dough Boys, Inc.                            , 201 P.3d 508, 514-15(Alaska2009) ("We                                 



encourageand                 favor settlementsbetweenparties becausetheyreducedemand for judicial                                                         

resources.").  



             63           Id. at 514 (quoting Inman v. Clyde Hall Drilling Co., 369 P.2d 498, 500  

                                                                                                                                                                

(Alaska 1962) (citing Baltimore & Ohio Sw. Ry. v. Voight, 176 U.S. 498, 505 (1900)).  

                                                                                                                                                        



             64           See McKeown v. Kinney Shoe Corp., 820 P.2d 1068, 1070-71 (Alaska  

                                                                                                                                                        

 1991) (holding private settlement of liquidated damages claims under Alaska Wage and  

                                                                                                                                                                 

Hour Act void as against public policy); Juliano v. Angelini, 708 P.2d 1289, 1291  

                                                                                                                                                             

(Alaska 1985) (holding settlement provision classifying proceeds as capital gain rather  

                                                                                                                                                             

than income void as against public policy).  

                                                                     



                                                                                -23-	                                                                         7494
  


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

                         Alaska Statute 23.30.012 allows parties to "reach an agreement in regard             



to a claim for injury or death under [the Act]." The statute requires that "a memorandum                                                 



of   the   agreement   in   a   form   prescribed"   be   filed   with   the   Division   of   Workers'  

                             65  agreements that do not conform to this requirement are "void for any  

Compensation;                                                                                              

purpose."66            As we noted earlier, if a party to a settlement is not represented by Alaska  

                                                                                                                                                      

counsel, the Board is required to review and approve the settlement.67                                                               Board approval  

                                                                                                                                                  

is not required when all parties are represented by Alaska counsel.68   In either event, the  

                                                                                                                                                             

settlement is "enforceable as a compensation order."69  

                                                                                      



                         Welty asks us to affirm the superior court's decision, contending, as he did  

                                                                                                                                                             



in the superior court, that the Board's approval of the settlement agreement transmuted  

                                                                                                                                              



money  Allstate  paid  as  part  of  its  coverage  under  Michaelson's  landlord  liability  

                                                                                                                                                   



insurance policy into workers' compensation benefits.  In Welty's view, the settlement  

                                                                                                                                                



agreement "became enforceable for any purpose to the same extent as an order or award  

                                                                                                                                                        



of the Board," making it "equivalent to a final judgment of the Board."  He reasons that  

                                                                                                                                                            



the Board "would have no jurisdiction to approve or reject the settlement agreement if  

                                                                                                                                                                



it did not involve a claim for workers' compensation benefits against an employer."  

                                                                                                                                                               



                         Because  the  settlement  agreement  contained  provisions  related  to  the  

                                                                                                                                                            



wrongful death claim, the Board did not have jurisdiction over all of its aspects. But the  

                                                                                                                                                             



Board, and the Board alone, had jurisdiction to dismiss the workers' compensation claim  

                                                                                                                                                         



             65          AS  23.30.012(a).
  



             66          Id.
  



             67
         AS  23.30.012(b).  



             68          AS  23.30.012(a).  



             69          Id.  



                                                                             -24-                                                                        7494
  


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

against Welty, the Fund, and Michaelson.                                         To determine whether dismissal was in the                                    



                                                                                                                                                                70  

claimants' best interests, theBoardneededinformation                                                  about therelated               tort settlement.                



The resolution gave the Board that information by expressing Seal's election of a civil  

                                                                                                                                                           



remedy and merging the tort settlement and the workers' compensation claim dismissal  

                                                                                                                                                   

into  one  global  settlement  agreement.71                                          The  Board's  approval  of  the  workers'  

                                                                                                                                                  



compensation claim dismissal did not change the nature of the underlying settlement.  

                                                                                                                                                                     

Using two documents rather than one might have avoided some of this litigation,72  but  

                                                                                                                                                              



we see nothing in the statute prohibiting the settlement agreement form the parties used.  

                                                                                                                                                          



                         Interpreting the statute as the superior court did could result in expanding  

                                                                                                                                                



the Board's granted jurisdiction by sanctioning its enforcement of provisions not within  

                                                                                                                                                        



the Act.  Alternatively, the parties to such a settlement could be left with limited or no  

                                                                                 

                                                                                       73   For example, Welty does not explain  

remedies in the event of a later disagreement.                                                                                                        

                                                             



howthe Board, as anadministrativeagency with limited powers and statutory constraints  

                                                                                                                                                



             70          See  8 AAC 45.160(d)(2)(A) (requiring Board to find that settlement is in                                                          



employee's best interests                       beforeapproval);                 seealso Rosales I              , 316 P.3d 580, 583 (Alaska           

2013) (noting that Board initially rejected settlement because it could not determine                                                            

claimant's best interests).     



             71          The Board's regulation requires, inter alia, a statement fromthe parties that  

                                                                                                                                                             

the settlement "contains the entire agreement among the parties" and "is not contingent  

                                                                                                                                                

on any undisclosed agreement."  8 AAC 45.160(c)(7).  

                                                                                                         



             72          But seeRosalesI,316 P.3dat 580 (addressing disputesbetween parties who  

                                                                                                                                                            

had settled using two separate documents).  

                                                           



             73          Disagreements about a settlement's meaning and effect are not uncommon  

                                                                                                                                               

in either the civil arena or workers' compensation.  See, e.g., Dimeff v. Estate of Cowan,  

                                                                                                                                                      

300 P.3d 1 (Alaska 2013); Rosales I, 316 P.3d at 580.  

                                                                                              



                                                                              -25-                                                                        7494
  


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

                                           74  

 on enforcement,                                could have ordered Seal to dismiss the civil claim against Michaelson                                                                                 



had she not done so after Allstate's payment.                                                                          Nor does he explain how the Board, after                                                         



 approval of the settlement and dismissal of the workers' compensation claim, could have                                                                                                                                



required Allstate to pay the promised funds had it failed to do so. And if the money paid                                                                                                                                



under the settlement were "compensation," as the superior court decided, Allstate or                                                                                                                                          



Michaelson would have limited means of recovering the money had Seal refused to                                                                                                                                                

 comply with the settlement agreement.                                                                 75  



                                    In  Rosales  I  the  parties  used  two  documents  to  finalize  their  global  

                                                                                                                                                                                                                  



 settlement;  we  noted  that  the  Board  had  jurisdiction  only  to  approve  the  workers'  

                                                                                                                                                                                                           



 compensation settlement, not the maritime settlement, and that nothing in the record  

                                                                                                                                                                                                                   



 supported  Rosales's  argument  that  the  Board  took  any  action  on  the  maritime  

                                                                                                                                                                                                           

                             76     We do not have the Board's record before us in this case and thus do not  

 settlement.                                                                                                                                                                                           



know whether the Board questioned the parties about the settlement agreement, but the  

                                                                                                                                                                                                                             



 superior court had no evidence suggesting that the Board had approved anything beyond  

                                                                                                                                                                                                                 



the agreement provisions within its jurisdiction: dismissing with prejudice the workers'  

                                                                                                                                                                                                             



 compensation claim to effectuate Seal's election of remedies.  The form parties use for  

                                                                                                                                                                                                                             



 a global settlement agreement cannot expand an agency's jurisdiction, and AS 23.30.012  

                                                                                                                                                                                                          



 did not transmute funds paid for a civil settlement into workers' compensation benefits.  

                                                                                                                                                                                                              



                  74               See  AS 23.30.170 (setting out Board's enforcement powers, including, in                                                                                                                    



 case of default, issuing supplementary order for filing in superior court).                                                                                                  



                  75               See AS 23.30.155(j) (providing that employer may recover compensation  

                                                                                                                                                                                                

 overpayment by withholding up to 20% of future compensation payments); Croft v. Pan  

                                                                                                                                                                                                                          

Alaska Trucking, Inc. , 820 P.2d 1064, 1066 (Alaska 1991) (holding that AS 23.30.155(j)  

                                                                                                                                                                                                    

 is sole method for employer to recover compensation overpayment).  

                                                                                                                                                                                       



                  76                316 P.3d at 585.  

                                                                   



                                                                                                             -26-                                                                                                      7494
  


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

                                                                                      Because AS 23.30.012 permits the Board to sanction only agreements                                                                                                                                                                                                                                                                                                     



regarding workers' compensation claims, the only                                                                                                                                                                                                                                                                                                      part of the settlement agreement                                                                                                                 



 subject to Board approval and enforceable as an order of the Board was the estate's                                                                                                                                                                                                                                                                                                                                                                                                                                      



 dismissal   with   prejudice   of   the   workers'   compensation   claim.     Nothing  in   the   Act  



prohibits theestatefromelecting                                                                                                                                                                                todismisstheworkers' compensation proceeding,                                                                                                                                                                                                                                                                               settle  



the wrongful death claim against Michaelson, and continue to litigate a wrongful death                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 claim against Welty. The money Allstate paid to settle the wrongful death claim against                                                                                                                                                                                                                                                                                                                                                                                                                                        



 its insured remained tort settlement proceeds.                                                                                                                                                                                       



V.                                          CONCLUSION  



                                                                                      We REVERSEthe superior court's grant of summary judgment, VACATE                                                                                                                                                                                                                                                                                                                                                      



the final judgment, and REMAND for further proceedings.                                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                                           -27-                                                                                                                                                                                                                                                                7494
  

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