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Scammon Bay Association, Inc. v. David Ulak (12/23/2005) sp-5971
Scammon Bay Association, Inc. v. David Ulak (12/23/2005) sp-5971
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SCAMMON BAY ASSOCIATION, INC.,
| ) |
|
and its workers compensation carrier, | )
Supreme Court No. S-11392 |
|
AMERICAN INTERNATIONAL GROUP, INC.,
| ) |
|
| ) |
|
Appellants,
| ) |
|
| ) Superior
Court No. |
|
v. | ) 4BE-02-130
CI |
|
| ) |
|
DAVID ULAK, SUBURBAN PROPANE, | ) O P I N I
O N |
|
L.P., a foreign corporation, and WAVE
| ) |
|
FUELS & TRANSPORTATION, LLC, | ) |
|
a domestic company, | )
|
|
| ) |
|
Appellees. | ) [No. 5971 -
December 23, 2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Erling T. Johansen, Davison &
Davison, Inc., Anchorage, for Appellants.
Thomas Van Flein, John B. Thorsness, Clapp,
Peterson, Van Flein, Tiemessen & Thorsness,
LLC, Anchorage, for Appellee Suburban
Propane, L.P. Michael P. McConahy, McConahy,
Zimmerman & Wallace, Fairbanks, for Appellee
Wave Fuels & Transportation, LLC.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
An employee was injured on the job and recovered
workers compensation benefits from the employer. The employee
then sued other potential tortfeasors. Under AS 23.30.015(g),
the employer would normally have a lien on any money the employee
recovered from other tortfeasors, up to the amount of benefits
paid by the employer to the employee. But in this case, the
employee and the tortfeasors settled their dispute and agreed
that the employer was twenty-five percent at fault for the
accident, and proposed that the superior court hold a hearing and
then make a finding to this effect. Under subsection .015(g),
this finding of fault could arguably have the effect of wiping
out the employers lien. Concerned about this possibility, the
employer moved to intervene in the litigation between the
employee and the tortfeasors. The superior court denied the
motion, primarily because the motion was not made until the day
before the hearing. The superior court then made a written
finding that the employer was twenty-five percent at fault for
the employees injuries, and entered a judgment dismissing the
employees claims against the other tortfeasors. The employer has
appealed, arguing that the superior court erred in denying
intervention. We agree. Given the late date that the employer
learned about the proposal to eliminate its lien, we think the
intervention motion was not untimely. We therefore reverse the
denial of the motion, vacate the superior courts findings, and
remand the case for further proceedings.
II. FACTS AND PROCEEDINGS
The following facts do not appear to be contested. In
March 2001 David Ulak was employed by Scammon Bay Association,
Inc., as a gas station attendant. His hands were exposed to
liquid propane when he disconnected a fill line coupling from a
storage tank, and he lost six fingers as a result. After the
accident, Scammon Bay filed a report of occupational injury under
the Workers Compensation Act. Since then, Scammon Bays insurer,
American International Group, Inc., has paid more than $150,000
in disability benefits, medical expenses, and other expenses on
Ulaks behalf.1
In May 2002 Ulak filed a complaint against Wave Fuels
and Suburban Propane. Wave Fuels contracted with Suburban
Propane to supply propane to the Scammon Bay Association.
Suburban Propane supplied the tank and the propane and arranged
for their transportation to Scammon Bay. The complaint alleged,
among other things, that Suburban and Wave were strictly liable
as owners of an ultra-hazardous substance, that the storage tank
was defective, and that Suburban and Wave failed to warn Ulak
about the dangers of liquid propane. The complaint did not name
Scammon Bay as a defendant, presumably because AS 23.30.055
limits an employers liability for most workplace injuries to
payment of workers compensation, which Scammon Bay was already
paying Ulak.
After some discovery was conducted, the parties moved
for partial summary judgment on various claims. In June 2003
Wave and Suburban also moved for an order that would authorize
the jury, in the event of a trial, to allocate fault to Scammon
Bay. The motion concerning Scammon Bays fault was significant
for several reasons. First, a jury finding that Scammon Bay was
at fault would reduce Wave and Suburbans liability for Ulaks
injuries under AS 09.17.080(c).2 Second, although Scammon Bay
would normally have a right under AS 23.30.015(g) to recoup
workers compensation benefits paid from any amount recovered by
Ulak from Wave and Suburban, subsection .015(g) also says that
this lien is reduced by the amount of fault allocated to the
employer under AS 09.17.080(c).3 Ulak opposed the motion to
permit the jury to allocate fault to Scammon Bay, presumably
because his first priority at the time was to maximize his
recovery from Suburban and Wave, even though it might result in
Scammon Bay obtaining a $150,000 lien on any recovery. As late
as September 24, 2003, Ulak was submitting briefs arguing that
Scammon Bay was not at fault as a matter of law.
With the motions pending, Ulak, Wave, and Scammon Bay
began settlement talks in fall 2003 with a mediator. In its
brief to this court, Scammon Bay admits that it initially
participated in these talks. Ulaks attorney later told the
superior court that Scammon Bay had abandoned the settlement
talks early in the process and that there had been correspondence
with Scammon Bays attorney about the outcome of the mediation.
These representations are quoted in Waves brief to this court and
do not seem to be disputed by Scammon Bay.
On November 3, 2003, Ulak, Wave, and Suburban appeared
before Superior Court Judge Dale O. Curda, ostensibly to argue
their motions. Scammon Bay was not present at the hearing, which
focused entirely on settlement instead of on the pending motions.
The attorneys for the parties told the court that Wave was
willing to pay Ulak $275,000, and Suburban was willing to pay
$425,000. As described by one of the attorneys, Suburban and
Wave would, as part of the proposed settlement, assume Ulaks
obligation to deal with Scammon Bays lien. But Suburbans lawyer
told the court that Suburbans settlement with Ulak was
conditioned, at least by my client, on not having to pay anything
toward the workers compensation lien. Suburbans lawyer also told
the court that it was the parties view that it was not even a
close call that a trial would result in an allocation of fault to
Scammon Bay sufficient to wipe out the lien. Far from objecting
to this characterization, Ulaks lawyer observed that Scammon Bay
knew about the hearing, refused to admit fault, had declined to
participate in the case, and was holding the parties hostage in
their attempt to settle the case. Scammon Bay does not argue on
this appeal that it was unaware of the November hearing or the
possibility that the parties proposed settlement might be
discussed.
The November hearing ended without any resolution.
Suburbans lawyer said the parties objective was to get $700,000
into the plaintiffs hands . . . and also essentially do away with
the workers compensation lien. Suburbans lawyer initially
suggested that the parties should join Scammon Bay to the action
as a necessary party under Alaska Civil Rule 19, but concluded
that since Scammon Bay had gotten adequate notice and so forth
and . . . they can be bound, then maybe we can proceed without
them. This prompted Waves lawyer to propose that the court enter
findings based on stipulation, briefing, and oral argument to
eliminate the lien and approve the settlement. The court took
the matter under advisement, and said it would get something out
in writing to specify the next step.
On December 15, 2003, the court issued a notice of
hearing. This notice set a hearing date for January 29, 2004,
said the court would make a fault-allocation finding as discussed
on November 3, and asked the parties to submit proposed factual
findings consistent with the proposed settlement by 23 January
2004. The court clerk served this notice on the parties but not
on Scammon Bay. This notice effectively superseded an earlier
order scheduling a jury trial on the merits to begin during the
week of January 5, 2004.
On January 15, 2004, Ulaks lawyer mailed (via first-
class U.S. mail) the courts notice and his own notice to the
parties and to Scammon Bays lawyer. Ulaks notice stated that the
purpose of the January 29 hearing would be to assess the parties
and Scammon Bays equitable share of damages under the comparative
fault statute and AS 23.30.015(g), and specifically invited
Scammon Bay to attend and participate. A few days later, on
January 21, 2004, Suburban mailed a copy of the parties proposed
findings of fact and conclusions of law to Scammon Bays attorney.
The findings (apparently agreed upon by Ulak, Wave, and Suburban)
allocated twenty-five percent of the fault for Ulaks injury to
Scammon Bay, set Ulaks damages at $2 million, and explicitly
purported to wipe out Scammon Bays lien until such time as
benefits paid reached $500,000. Scammon Bay received these
proposed findings on January 22, the same day that they were
filed in the trial court.
Late in the afternoon of January 28, 2004, Scammon Bay
began faxing thirty-seven pages of court papers to the superior
court clerk, including a motion for intervention of right and
permissive intervention under Alaska Civil Rule 24(a) and (b),
and a discovery request directed at each party seeking documents
pertaining to the settlement. The same day, Scammon Bay faxed and
mailed these papers to Waves lawyer and hand-delivered them to
the lawyers for Ulak and Suburban. Scammon Bays motion to
intervene argued that under the relevant statutes and under the
equal protection and due process clauses Scammon Bays lien could
not be wiped out without an adversarial hearing. Scammon Bay
also said (in conclusory fashion) in its brief accompanying the
motion that it was not at fault for Ulaks injuries and that the
settlement under-compensated Ulak.
The next day, January 29, the court held a hearing.
Scammon Bays lawyer called in to participate by telephone in the
hearing, but the court did not take the call and did not allow
him to participate.4 The court then denied Scammon Bays motion
to intervene. The courts findings on the timeliness of the
intervention motion focused on Scammon Bays prior awareness of
the proceedings, the lapse of time since the complaint was filed,
the fact that the hearing was taking place after the date that
had originally been set for trial, and the delay that would
result from entertaining a last-minute attempt to try the issue
of Scammon Bays fault:
I think its clear the main issue here is the
matter of timeliness. Its been two years.
The original complaint was filed in May of
2002, the injury took place over three years
ago. Its obvious its very untimely, aside
from the other things Ive noticed here
regarding the rush to get the paperwork here
this afternoon, at the last minute almost,
before the court.
Secondly, as far as permissive
intervention, the court shall consider
whether the intervention will unduly delay or
prejudice the adjudication of the rights of a
party, not only is that a yes, but thats a
resounding yes. It would be horrific
consequences here for the whole concept of
the litigation process, aside from Mr. Ulaks
injuries, to delay this case at this point
and allow intervention. As the parties have
pointed out, this is the time for trial, and
if we did have a jury coming in here, that
whoever tried to intervene would not be
allowed to intervene, and this is the time
for trial and on the facts.
. . . .
And, finally . . . the parties have
indicated as part of the background here,
throughout this file its very clear that Mr.
Johansen and his client [Scammon Bay and
American International Group] had notice of
the proceedings and they couldnt come in
unless they acceded to it, and they decided
not to. And its clearly unfair and
prejudicial to everyone here involved here
for the court to allow intervention at this
time.
The court went on to say it would approve the findings of fact,
emphasizing that the case had been hard-fought and highly
intensively litigated, that the parties had submitted a several-
inch file of depositions to support the findings, that these are
not stipulated facts, that the court had read these papers, and
that it believed the fault allocation to Scammon Bay was within a
ballpark . . . which is entirely appropriate. Soon afterward,
the court signed the parties written findings of fact and
conclusions of law. These findings and conclusions prohibited
Scammon Bay from asserting a lien on Ulaks recovery and barred
Scammon Bay from using the recovery as an offset against future
benefits until total benefits paid exceeded $500,000. The court
subsequently entered a judgment dismissing the complaint with
prejudice.
Scammon Bay appealed.
III. DISCUSSION
A failed intervenor has standing to appeal only the
denial of intervention, so we will consider that issue without
reaching Scammon Bays arguments that the superior courts
allocation of fault was clearly erroneous or is unenforceable
against Scammon Bay.5
A timely application is a prerequisite to intervention,
whether the movant seeks mandatory intervention under Civil Rule
24(a) or permissive intervention under Rule 24(b).6 Timeliness
is the only issue here, since the superior court said
untimeliness was the main reason for its decision to deny Scammon
Bays motion to intervene and the parties appear to concede that
Scammon Bay is otherwise entitled to intervention of right under
Rule 24(a). We review the superior courts assessment of the
timeliness of Scammon Bays motion for abuse of discretion.7
We have said that the trial court should determine the
timeliness of a proposed intervention by weighing the lapse of
time in the light of all the circumstances of the case, focusing
on whether any delay in moving for intervention will prejudice
the existing parties to the case.8 The federal courts have made
this inquiry somewhat more specific. They look at four factors:
(1) the length of time the applicant knew or
reasonably should have known that its
interest was imperilled before it moved to
intervene; (2) the foreseeable prejudice to
existing parties if intervention is granted;
(3) the foreseeable prejudice to the
applicant if intervention is denied; and (4)
idiocratic circumstances which, fairly
viewed, militate for or against
intervention.[9]
Federal law also offers some guidance on how to weigh these four
factors. According to the Wright & Miller treatise on federal
procedure, motions to intervene of right are found to be untimely
less often than are permissive intervention motions due to the
greater likelihood of prejudice to the applicant.10 In addition,
the requirement of timeliness is not a means of punishment for
the dilatory. Instead, the most important consideration when
making the timeliness determination is the prejudice caused by
the applicants delay in making its motion.11 We have relied
before on federal practice in applying Rule 2412 and will use the
four-factor test and the accompanying interpretive rules to
determine the timeliness of Scammon Bays motion.
Under this framework, we think that it was an abuse of
discretion to deny Scammon Bays motion as untimely.13
The first factor is the length of Scammon Bays delay.
The question is when Scammon Bay should have known that its
interest in the case would no longer be adequately protected by
the existing parties.14 The superior court said [i]ts been two
years, apparently charging Scammon Bay with a duty to intervene
as soon as the complaint was filed. We do not think the duty
arose then.
An employer with a compensation lien whose fault is
subject to allocation during litigation brought by an injured
worker under AS 23.30.015 has several interests. The employer
wants the plaintiff to recover from the third party an amount
sufficient to cover its lien and to provide an offset against
future benefits. The employer also wants to minimize its
equitable share of damages assessed under AS 09.17.080(c)15
because that amount will be deducted from its lien and, if it is
greater than the lien, will require the employer to keep paying
future benefits until the lien plus the benefits exceed the
equitable share.16 The equitable share can be minimized by
establishing that the employer either bears no responsibility for
the accident or only a slight degree of responsibility. These
interests of the employer will usually be consistent with those
of the plaintiff. A rule that would require an employer to
intervene in section .015 actions as a matter of course would be
undesirable because, as we noted in Wichman, there is a potential
for prejudice to the employee . . . by joining the holder of a
right to reimbursement of workers compensation benefits as party
plaintiff before trial in an employees suit against a third
party.17
In this case Scammon Bay had good reason not to
intervene at the outset of the litigation or when the defendants
moved for an order that would permit the jury to allocate fault
to Scammon Bay. Ulak was represented by competent counsel, his
interests were consistent with Scammon Bays, and he was
opposing any allocation of fault to Scammon Bay. Indeed one of
the grounds for Ulaks opposition to allocation to Scammon Bay was
an empty chair argument based on the assumption that it is easy
to lay disproportionate blame at trial on an unrepresented
actor. This argument would have been undercut by Scammon Bays
intervention.
The next point at which it might be argued that Scammon
Bay should have intervened is at or around the November 3, 2003
hearing. By the November hearing the situation had changed. The
parties had agreed on how much Wave and Suburban should pay and
they were unified in seeking to eliminate Scammon Bays lien,
either as a means of sweetening the pot for Ulak or as a means of
diminishing the amount the settlement required Wave and Suburban
to pay. It also seems that Scammon Bay was aware that a
settlement was in the works, that there would be a hearing on
this, and that even Ulak viewed Scammon Bays lien as a monkey
wrench. Moreover, by November 20, Scammon Bay had obtained the
courts log notes showing that Wave had urged the court to
allocate fault to Scammon Bay (as one of several options) and
that the court had taken the matter under advisement.
Yet we do not believe that Scammon Bays duty to
intervene arose in November. At this point, Ulaks interest in
eliminating the lien was contingent on the superior courts
approving the settlement, which in turn was contingent on the
courts willingness to make a summary finding that Scammon Bays
equitable share of damages was at least $150,000. Neither
Scammon Bay nor the parties to the action knew what the court
would do following the November 3 hearing. Had the court
rejected the possibility of a summary finding against Scammon
Bay, thereby rejecting the tentative settlement, Scammon Bays
interests would have been realigned with Ulaks, vindicating
Scammon Bays decision to stay out. At a minimum, Scammon Bay
reasonably could have expected that no summary finding binding on
it would be made unless it first received notice and an
opportunity to be heard.
The issue is therefore when Scammon Bay received notice
that the court really was going to adjudicate the extent of its
fault.18 On December 15 the court issued a notice of hearing for
the purpose of allocating fault to Scammon Bay. But, in what was
probably an oversight by the parties and the court, Scammon Bay
was not notified of this hearing until Ulaks lawyer mailed the
notice to Scammon Bay on January 15, specifically inviting
Scammon Bay to participate. Assuming two days for delivery by
the post office (both sender and receiver being in Anchorage),
Scammon Bay was first informed of the hearing on January 17. We
conclude that this was the date upon which Scammon Bays duty to
intervene arose. Measured from January 17, only twelve days
elapsed before Scammon Bay submitted its motion to intervene.
This is a relatively short delay.19
The second factor to be considered in determining the
timeliness of Scammon Bays attempted intervention is the
prejudice to the existing parties caused by the delay. The court
said there would be horrific consequences here for the whole
concept of the litigation process, aside from Mr. Ulaks injuries,
to delay this case at this point and allow intervention,
apparently because January 29 was the time for trial. We think
there are several problems with this assessment. First, the
court appeared to take into account the prejudice that would
follow from granting intervention generally, rather than the
prejudice specifically resulting from Scammon Bays lack of
diligence, if any, in moving to intervene.20 Second, January 29
was not actually the time for trial. Although the original
scheduling order had set trial for the week of January 5, 2004,
this timing had been abandoned by December 15, 2003, when the
court ordered the parties to submit proposed findings of fact for
a summary hearing on January 29. The hearing notice did not
contemplate a trial or anything like a trial and indeed the court
ruled on the proposed findings entirely on the basis of the
written record. There was no jury selection and presumably no
preparation by the court or the parties for a trial on that date.
This is not to say that there was no prejudice from
Scammon Bays delay.21 Had Scammon Bay submitted its papers at
least two or three days before the hearing, instead of at the
last minute, it certainly would have been more convenient for
everyone. The hearing probably would have been cancelled or
postponed, if only to give the parties some time to respond to
Scammon Bays motion. This would have saved the attorneys (and
Ulak himself) the trouble of coming to Bethel and saved the court
the trouble of preparing for a hearing on Scammon Bays fault. In
this way, Scammon Bays motion did threaten a last minute
disruption of at least some painstaking work by the parties and
the court, and preventing such disruptions remains the purpose of
the basic requirement that the application to intervene be
timely.22 All the same, the waste of other peoples time that
would have been caused by Scammon Bays delay (had its motion been
granted) still seems relatively small, being much smaller for
example than the disruption that would result from granting a
motion made on the eve of an actual trial.
The third factor to consider in the timeliness analysis
is the prejudice to Scammon Bay of having its motion denied. The
superior court did not say anything about this factor, but it
seems obvious that the prejudice to Scammon Bay from the denial
of its motion is potentially severe. The superior court made
written findings that purport to deprive Scammon Bay of a lien
worth $150,000 and an offset against future benefits of another
$350,000. Yet this was done without giving Scammon Bay (then the
only entity with an interest in protecting Scammon Bays interest)
a chance to be heard in defense of its rights. At a minimum, we
think a potential intervenor has been significantly prejudiced
where it is denied a chance to contest a claim against it of this
magnitude.
But what if the superior courts finding does not have a
preclusive effect on Scammon Bay? Scammon Bay argues that the
summary finding made in this case is not enforceable under the
comparative fault scheme and that giving the finding such a
preclusive effect would violate the due process and equal
protection clauses. If these arguments are correct, then the
courts finding would be a nullity with respect to Scammon Bay and
the denial of intervention would not result in any prejudice to
Scammon Bay. The absence of prejudice to Scammon Bay would
weaken Scammon Bays argument for why it should be allowed to
intervene23 but Scammon Bay would hardly mind losing that battle
so long as it wins the war to protect its lien. Do we then need
to determine the preclusive effect of the fault allocation
entered against Scammon Bay, if only to decide whether it was
erroneous to deny intervention? Because we must consider the
prejudice not only to Scammon Bay but also to the existing
parties, the answer is no. If Scammon Bay were correct about the
preclusive effect (or lack thereof) of the courts finding, the
resulting prejudice to Wave, Suburban, and/or Ulak would militate
against denying intervention to Scammon Bay. These parties
reached an agreement that appears to have been premised at least
informally on the understanding that no one would have to pay
Scammon Bay on its lien. If we upheld the denial of intervention
on the ground that Scammon Bay can still collect its lien,
notwithstanding the courts summary finding against Scammon Bay in
absentia, then someone among Suburban, Wave, and Ulak (the record
is unclear as to whom) would be forced to pay Scammon Bay, or at
least to shoulder the burden of trying not to pay Scammon Bay, on
an apparently valid lien. We consider this to be an idiocratic
factor suggesting that the whole arrangement should be unwound to
permit the parties (potentially including Scammon Bay) to try the
case or to reach whatever agreement they can on how to deal with
a lien that cannot be gotten rid of as easily as initially
expected.
Since we think the motion for intervention should have
been granted whether or not the courts finding had preclusive
effect, we do not have to decide the findings enforceability.
The above states our assessment of each factor in the timeliness
analysis. The timing of Scammon Bays motion was understandable
under the circumstances, and the prejudice to the parties and the
court caused by the delay was only moderate. Moreover, the
prejudice that would result from upholding the decision to deny
the motion has a severe negative effect on at least somebody: if
the finding against Scammon Bay is binding, then it has lost a
chance to save its lien; if the finding against Scammon Bay is
not binding, then Ulak, Suburban, or Wave would have to pay the
lien or defend against it, notwithstanding an agreement possibly
premised on the liens having been eliminated. Considering these
factors in light of the general reluctance to reject
interventions of right on timeliness grounds, and in light of the
understanding that the timeliness requirement is not a punishment
for the dilatory,24 we think it was an abuse of discretion to deny
the motion to intervene here.
Finally, we note that the many cases cited by Suburban
and Wave are not inconsistent with our decision. Most of these
cases are completely different from this case. For example,
Suburban cites DAmato v. Deutsche Bank,25 in which a member of a
class action tried to intervene to stop a class settlement that
he thought left money on the table. The court upheld a decision
denying intervention. The circumstances of a class action are
quite different from those presented here since a class member is
represented by the lead plaintiff, who has fiduciary duties to
the entire class. By contrast, in this case the parties had no
duty to Scammon Bay and indeed knew Scammon Bays position all
along; they deliberately came to an agreement opposed to Scammon
Bays interests, without ever attempting to join Scammon Bay, as
they might easily have done.
Suburban also cites Hartford Accident & Indemnity
Insurance Co. v. Birdsong,26 which is probably the strongest case
in Suburbans favor. In that case, two insurance companies were
potentially liable for any judgment entered against the
individual tortfeasor.27 The plaintiff sued the tortfeasor and
got a default order, and approximately a year later the insurance
companies (despite an earlier, unfulfilled promise to vindicate
their interest through a separate declaratory judgment action)
sought to intervene a few weeks before a trial that was to
determine the plaintiffs damages.28 The Maryland Court of Special
Appeals suggested in dicta that intervention was untimely.29 In
this case, however, Scammon Bay attempted to intervene before any
order was entered affecting its interest and any delay involved
was a matter of days rather than months or years. We also note
that in Weimer v. Ypparila,30 the South Dakota Supreme Court was
faced with somewhat similar facts and allowed an insurance
company to intervene after a judgment prejudicing the insurer was
entered in the insurers absence, even though the insurer had
previously been notified that its interests were at risk from the
proceedings. Without trying to reconcile Weimer with Birdsong,
we believe the weight of authority is consistent with our
decision here.
IV. CONCLUSION
The order denying Scammon Bays motion to intervene is
REVERSED. We also VACATE the order dismissing the complaint and
VACATE the findings that set damages and allocate fault to the
parties and to Scammon Bay. Any of the parties is free to argue
on remand that the terms of the settlement agreement require the
complaint to be dismissed again; this issue has not been briefed
and our decision should not be read as construing the agreement.
_______________________________
1 Scammon Bay and American International Group are
represented by the same attorneys and have filed one set of
papers for this appeal. We will often refer to both as Scammon
Bay.
2 AS 09.17.080 lays out Alaskas comparative fault scheme.
Subsection .080(a) requires the court or the jury to make
findings allocating fault to all parties responsible for the
damages (with some exceptions). Subsection .080(c) says that
each partys liability is based on its percentage of fault:
The court shall determine the award of
damages to each claimant in accordance with
the findings and enter judgment against each
party liable. The court also shall determine
and state in the judgment each partys
equitable share of the obligation to each
claimant in accordance with the respective
percentages of fault as determined under (a)
of this section. Except as provided under AS
23.30.015(g), an assessment of a percentage
of fault against a person who is not a party
may only be used as a measure for accurately
determining the percentages of fault of a
named party. Assessment of a percentage of
fault against a person who is not a party
does not subject that person to civil
liability in that action and may not be used
as evidence of civil liability in another
action.
3 AS 23.30.015(g) provides:
If the employee or the employees
representative recovers damages from the
third person, the employee or representative
shall promptly pay to the employer the total
amounts paid by the employer under (e)(1)(A)-
(C) of this section insofar as the recovery
is sufficient after deducting all litigation
costs and expenses. Any excess recovery by
the employee or representative shall be
credited against any amount payable by the
employer thereafter. If the employer is
allocated a percentage of fault under AS
09.17.080, the amount due the employer under
this subsection shall be reduced by an amount
equal to the employers equitable share of
damages assessed under AS 09.17.080(c).
4 THE CLERK: Mr. Johansen is calling. THE COURT: All
right. Well, were not going to deal with him right now. If the
court ever took the call from Scammon Bay, it did not happen on
the record.
5 See Graham v. City of Anchorage, 364 P.2d 57, 59
(Alaska 1961). Scammon Bay has argued that the findings are
unenforceable against it because they violate the due process and
equal protection clauses of the state and federal constitutions,
contravene the exclusivity provisions of AS 23.30.055, and fail
to reflect an independent determination by the court. Scammon
Bay has also argued that since Ulak previously opposed allocating
any fault to Scammon Bay, he should be estopped from agreeing to
the settlement that serves as the basis of the findings.
6 Civil Rule 24(a) provides:
Upon timely application anyone shall be
permitted to intervene in an action when the
applicant claims an interest relating to the
property or transaction which is the subject
of the action and the applicant is so
situated that the disposition of the action
may as a practical matter impair or impede
the applicants ability to protect that
interest, unless the applicants interest is
adequately represented by existing parties.
Civil Rule 24(b) also requires a timely application.
7 Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 912 (Alaska 2000).
8 Wichman v. Benner, 948 P.2d 484, 488 (Alaska 1997)
(quoting 7C Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 1916 (1986)).
9 Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d
1227, 1231 (1st Cir. 1992); see also DAmato v. Deutsche Bank, 236
F.3d 78, 84 (2d Cir. 2001) (similar).
10 7C Federal Practice and Procedure, supra note 8, 1916.
11 Id.
12 Wichman, 948 P.2d at 488.
13 Since we conclude as a result of our four-factor
analysis that Scammon Bays motion should not have been denied, we
do not address Scammon Bays argument that the appellees should be
estopped from opposing Scammon Bays motion to intervene because
Ulak had invited Scammon Bay to participate at the January 29
hearing.
14 Banco Popular, 964 F.2d at 1231.
15 The quoted language is contained in AS 23.30.015(g).
16 Id.
17 948 P.2d at 489.
18 See Mundt v. Northwest Explorations, Inc., 947 P.2d
827, 830 (Alaska 1997) (motion to intervene was timely; although
claimant was passive throughout much of the litigation, she acted
promptly to intervene once the superior court issued an order
that injured her rights more broadly than she could have
previously anticipated).
19 Cf. United States v. City of Chicago, 870 F.2d 1256,
1263 (7th Cir. 1989) (white police sergeants motion to intervene
to oppose Title VII consent decree was timely, where motion was
filed six weeks after duty to intervene arose). City of Chicago
involved a somewhat more complex case than this one, and the
would-be intervenor was more of a stranger to the case than
Scammon Bay was here (which made a six-week delay somewhat more
justifiable). So City of Chicago is not directly on point, but
it does help persuade us that the twelve-day delay in this case
was not significant.
20 [T]he relevant issue is not how much prejudice would
result from allowing intervention, but rather how much prejudice
would result from the would-be intervenors failure to request
intervention as soon as he knew or should have known of his
interest in the case. Stallworth v. Monsanto Co., 558 F.2d 257,
267 (5th Cir. 1977).
21 Cf. Brown v. Cook Inlet Region, Inc., 569 P.2d 1321,
1323 n.7 (Alaska 1977) (where corporation lost proxy fight in the
trial court and decided not appeal, individual board members who
favored appealing could intervene after judgment to prosecute
appeal, given absence of any prejudice flowing from failure to
intervene earlier).
22 Banco Popular, 964 F.2d at 1232.
23 See, e.g., Red Top Mining, Inc. v. Anthony, 983 P.2d
743, 746 (Alaska 1999) (intervention was properly denied as
untimely; there was no prejudice because trial court stated on
the record that the proceedings should not be interpreted to
injure would-be intervenors rights).
24 7C Federal Practice and Procedure, supra note 8, 1916.
25 236 F.3d 78 (2d Cir. 2001).
26 553 A.2d 251 (Md. Spec. App. 1989), cert. denied, 559
A.2d 790 (Md. 1989).
27 Id. at 252-54.
28 Id. at 254.
29 Id. at 255. The opinion in this case merely confirms
that a prior, interlocutory appeal in the same case was correctly
decided by the same court. In both cases, the court seems to
refrain from relying on untimeliness alone, since it was unclear
whether the trial court had relied on this ground. The prior
decision is Hartford Ins. Co. v. Birdsong, 519 A.2d 219 (Md.
Spec. App. 1987).
30 504 N.W.2d 333 (S.D. 1993).
