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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nixola Doan, Personal Representative v. Banner Health, Inc., d/b/a Fairbanks Memorial Hospital, et al. (4/23/2021) sp-7520

Nixola Doan, Personal Representative v. Banner Health, Inc., d/b/a Fairbanks Memorial Hospital, et al. (4/23/2021) sp-7520

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

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          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



NIXOLA  JEAN  DOAN,  Personal                                )  

Representative  of  the  Estate  of  Tristana )                   Supreme Court Nos. S-17502/17521  

                                                                                                   

Doan,                                                        )  

                                                             )    Superior Court Nos. 4FA-18-00404 PR  

                                                                                                                          

                                            

                    Appellant and                            )    and 4FA-13-01538 CI (Consolidated)  

                                                                                                      

                    Cross-Appellee,                          )  

                                                             )    O                   

                                                                      P I N I O N  

          v.                                                 )  

                                                                                                    

                                                             )    No. 7520 - April 23, 2021  

                                   

BANNER HEALTH, d/b/a                                         )
  

                        

FAIRBANKS MEMORIAL                                           )
  

                                           

HOSPITAL; NORTHERN HOSPITAL )
  

                                                

ASSOCIATES, LLC; JAMES W.                                    )
  

                                          

CAGLE, D.O.; GOLDEN HEART                                    )
  

                                                  

EMERGENCY PHYSICIANS; and                                    )
  

                     

FAYE LEE, M.D.,                                              )
  

                                                             )
  

                                            

                    Appellees and                            )
  

                    Cross-Appellants.                        )
  

                                                             )  



                                          

                                                                                                    

                    Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                           

                    Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                    Judge.  



                                                                                                          

                    Appearances:             Galen  G.  Cook,  Mike  A.  Stepovich,  and  

                                                                                                           

                    Sandra  Kay  Rolfe,  Stepovich  Law  Office,  Fairbanks,  for  

                                                                                              

                    Appellant  and  Cross-Appellee.                       Howard  A.  Lazar  and  

                                                                                                           

                    Whitney L. Wilkson, Delaney Wiles, Inc., Anchorage, for  

                                                                                                 

                    Appelleeand Cross-AppellantBanner Healthd/b/aFairbanks  

                                                                                                 

                    Memorial  Hospital.               John  J.  Tiemessen,  Clapp,  Peterson,  

                                                                                                          

                    Tiemessen & Thorsness, LLC, Fairbanks, for Appellees and  


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

                      Cross-Appellants Northern Hospital Associates, LLC; James                                  

                      W.  Cagle, D.O.; Golden Heart Emergency Physicians; and                                        

                      Faye Lee, M.D.     

   

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

                                                                                                              

                      and Borghesan, Justices.  

                                                  



                      BOLGER, Chief Justice.  

                                                    



I.         INTRODUCTION  

     



                      Two defendants in a wrongful death suit settled with the decedent's estate,  

                                                                                                                                       



resulting in a recovery for her minor child's benefit.   The estate's attorney received  

                                                                                                                                   



payment fromthe settlement, but the remaining funds were reserved against potential fee  

                                                                                                                                             



awards to the remaining defendants should they prevail in the ongoing litigation.  The  

                                                              



estate appeals, arguing that the remainder of the funds should have been immediately  

                                                                                                                            



disbursed for thechild'sbenefit. Thenon-settlingdefendants cross-appeal, asserting that  

                                                                                                                                            



the entire settlement fund should have been reserved for their recoverable costs and fees.  

                                                                                                                                                   



                      Because the prevailing defendants would have no other source from which  

                                                                                                                                        



to recover expenses, we affirm the superior court's reservation of settlement funds. But  

                                                                                                                                            



because we construe the common fund doctrine to apply, we also affirm the court's  

                                                                                                                                     



distribution of the estate's attorney's fees and costs.  

                                                                              



II.        FACTS AND PROCEDURAL HISTORY  

                                                                    



                      In 2011, following medical treatment at Interior Aids Association, Tristana  

                                                                                                                                    



Doan died at Fairbanks Memorial Hospital. Tristana's mother, Nixola Doan, was named  

                                                                                                                                       



personal representative of her estate and guardian of her minor child R.D. In 2013 Doan,  

                                                                                                                                        



as personal representative of Tristana's estate, (the estate) brought a medical malpractice  

                                                                                                                              



                                                                      -2-                                                               7520
  


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

                                                                                                                                                                                                                           1  

and wrongful death suit on behalf of R.D., the statutory beneficiary.                                                                                                                                                          The complaint   



named seven defendants:                                                         Interior Aids Association and Dr. Nicole Fliss; Golden Heart                                                                                                                  



Emergency   Physicians   and   Dr.   Faye   Lee;  Northern   Hospital   Associates,   LLC   and  



Dr. James Cagle; and Banner Health, d/b/a Fairbanks Memorial Hospital.                                                                                                                                                                   



                                          In   January   2018   the   estate   reached   a   settlement   with   Interior   Aids  



Association and Dr. Fliss (the settling defendants).                                                                                                                   The proceeds totaled $177,000;                                          



attorney's fees of $70,800 and costs of $29,200 were to be paid to the estate's counsel.                                                                                                                                                                                           



The remaining $77,000 would not pass through the estate, which would hold the funds                                                                                                                                                                           



in trust for R.D.'s benefit.                                                           The estate asked that the court 'approv[e] the immediate                                                                                               



distribution of the settlement to pay costs, attorney['s] fees and for the establishment of                                                                                                                                                                              

                                                                                                                   2     This proposed distribution was contested by the  

a trust on behalf of the minor child."                                                                                                                                                                                                                                



remaining defendants (the non-settling defendants) and is the subject of this appeal.  

                                                                                                                                                                                                                                                                          



                                          Thenon-settling defendants contended that thesuperior court 'should deny  

                                                                                                                                                                                                                                                                 



any distribution of the settlement proceeds until the entire wrongful death case . . . has  

                                                                                                                                                                                                                                                             



been finally resolved with respect to all parties."  They argued that this was consistent  



with Alaska's wrongful death statute, under which '[t]he amount recovered shall be  

                                                                                                                                                                                                                                                                       



distributed only after payment of all costs and expenses of suit and debts and expenses  

                                                                                                                                                                                                                                                   

of administration."3  Counsel for Banner Health asserted that the non-settling defendants  

                                                                                                                                                                                                                                              



                     1                    When a decedent is survived by a statutory beneficiary (such as a minor                                                                                                                                         



child) thepersonal representativemay maintain an action solely on behalf of thestatutory                                                                                                                                                            

beneficiary, who receives any award recovered.                                                                                                          AS 09.55.580(a).                                          



                     2                    Settlements on behalf of minors must be approved by the court before  

                                                                                                                                                                                                                                                          

taking effect; prior to disbursing proceeds to the minor, '[t]he court shall order that  

                                                                                                                                                                                                                                                                   

reasonable expenses . . . , costs and attorney's fees be paid from the settlement." Alaska  

                                                                                                                                                                                                                                                         

R. Civ. P. 90.2.  

                                 



                     3                    AS 09.55.580(a).  

                                                      



                                                                                                                                   -3-                                                                                                                          7520
  


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

had collectively accrued $1,214,755 in fees and costs and expected to accrue at least                                                                           



 $330,000 more at trial.                          Should they ultimately prevail, the non-settling defendants                                      



would be entitled to recover a portion of their fees which would substantially exceed the                                                                          

                                     4  they therefore sought to have the entire fund reserved until the case  

settlement amount;                                                                                                                                               



was fully resolved.  

                                       



                          All parties participated  in  a November  2018 minor  settlement  hearing  

                                                                                                                                    



before a probate master.  After discussing the terms with the settling parties, the master  

                                                                                                                                                            



heard arguments about possible disbursement of the settlement proceeds.  The master's  

                                                                                                                                                         



written findings noted that the estate had not adequately explained the distribution of  

                                                                                                                                                                     



litigation costs; the estate supplemented its petition, describing the claimed litigation  

                                                                                                                                                       



costs, its attorney's employment contract and time records, and the nexus between these  

                                                                                                                                                               



costs and the claims against the settling defendants.  The estate explained that, for the  

                                                                                                                                                                   



purposes of settlement, the settling defendants were one entity; because there were  

                                                                                                                                                               



functionally four entities, the settlement represented one quarter of its attorney's work  

                                                                                                                                          



to date and thus one quarter of the attorney's costs should be paid from the proceeds.  

                                                                                                                                                                       



                          The superior court 'approved the $177,000 settlement, the attorney['s] fee  

                                                                                                                                                                    



amount of $70,800,  and costs of $29,00[0]" at a hearing in May 2019, but treated  

                                                                                                                                                           



'distribution of the settlement proceeds" as 'a separate question."   The non-settling  

                                                                                                                                                 



defendants requested that it reserve the proceeds 'until [the court could] determine the  

                                                                                                                                                                   



full extent of 'costs and expenses of suit,' under AS 09.55.580."  Citing In re Soldotna  

                                                                                                                                                        



Air Crash Litigation , they asserted that if not all defendants in a wrongful death case  

                                                                                                                                                    



were party to a settlement, part or all of its proceeds should be retained in a fund to pay  

                                                                                                                                                                  



             4  

                                                                                                                           

                          As prevailing parties the non-settling defendants would be entitled under  

                                                                                                                                                          

Alaska R. Civ. P. 82(b)(2) to at least 30% of their reasonable actual attorney's fees.  



                                                                                  -4-                                                                                7520  


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

                                                                                                                          5  

any costs and fees awarded to prevailing defendants.                                                                          They contended that because the                                      



entire settlement might be required to pay attorney's fees the entire settlement should be                                                                                                           



reserved.    



                               The estate responded that                                     Soldotna Air  did not authorize the creation of                                                         



such a fund prior to the conclusion of litigation and that retaining the settlement proceeds                                                                                          



would be an impermissible prejudgment attachment. It further argued that the settlement                                                                                            



monies   were   for   R.D.   and   that   our   holding   in   Zaverl   v.   Hanley   shields   non-party  

                                                                                                                                 6    Therefore, the estate asserted  

statutory beneficiaries from liability for litigation costs.                                                                                                                           



that the court should immediately disburse the entire $177,000 to its counsel and R.D.  

                                                                                                                                                                                                            



                               The superior court ordered the settlement funds be partially disbursed,  

                                                                                                                                                                                 



explaining that in a wrongful death suit '[t]he amount recovered shall be distributed only  

                                                                                                                                                                                                



after   payment  of  all  costs  and  expenses  of  suit  and  debts  and  expenses   of  

                                                                                                                                                                                                   

administration."7  Because the estate's attorney's efforts had obtained the settlement, the  

                                                                                                                                                                                                   



superior court ordered that their costs of $29,000 and fees of $70,800 be distributed to  

                                                                                                                                                                                                     



compensate for  that effort.                                          But because neither  the estate nor  R.D.  could  be held  

                                                                                                                                                                                               

personally liable for costs and fees if the non-settling defendants prevailed,8  the court  

                                                                                                                                                                                              



concluded Soldotna Air controlled, requiring a reservation of settlement proceeds to pay  

                                                                                                                                                                                                  



the non-settling defendants' costs and fees in case they prevailed. The court ordered that  

                                                                                                                                                                                                  



the remaining $77,200 in settlement funds be held 'until the remaining litigation is  

                                                                                                                                                                                                     



complete and prevailing party status is determined in the wrongful death suit."  

                                                                                                                                                                                          



                5              835  P.2d   1215,   1220  (Alaska   1992).   



                6              64  P.3d  809,  821-22  (Alaska  2003).  



                7              AS  09.55.580(a).  



                8              See  AS 09.60.040  (costs not chargeable  against personal representative);  



Zaverl,  64  P.3d  at  821-22  (costs  not  recoverable  from  non-party  statutory  beneficiaries).   



                                                                                                  -5-                                                                                         7520
  


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

                                The estate now appeals, arguing that the court should have disbursed the                                                                                                



 entiresettlement. Thenon-settling                                                defendants cross-appeal,arguing                                              that thecourt                  should  



 have reserved the entire settlement.                      



 III.	          DISCUSSION  



                                The estate argues that the superior court erred by applying Soldotna Air to  

                                                                                                                                                                                                          



 this case and reserving a portion of the settlement for potential prevailing defendants'  

                                                                                                                                                                                   



 attorney's  fees.                         It alternatively  argues that if  Soldotna  Air  compels  that result,  its  

                                                                                                                                                                                                        



 application here violates due process and is contrary to public policy.  The non-settling  

                                                                                                                                                                                  



 defendants respond that the court was right to apply Soldotna Air to create a fund but  

                                                                                                                                                                                                       



 wrong  to  first  utilize  some  of  the  settlement  to  pay  the  estate's  settlement-related  

                                                                                                                                                                   



 attorney's  fees.                          These  are  questions  of  law  to  which  we  apply  our  independent  

                                                                                                                                                                                

judgment. 9  



                A.	             The Reservation Of Settlement Funds For Non-Settling Defendants'  

                                                                                                                                                                                

                                Potential Fees Was Proper.  

                                                                                   



                                 1.	            The superior court correctly applied Soldotna Air.  

                                                                                                                                                                      



                                We agree with the superior court that  Soldotna Air  controls here:   the  

                                                                                                                                                                                                      



 statutes and civil rules governing wrongful death suits and fee awards can be effectuated  

                                                                                                                                                                                     



 only through the creation of a reserved fund.  We therefore affirm the superior court's  

                                                                                                                                                                         



 decision to reserve the settlement and prohibit disbursement to R.D. until prevailing  

                                                                                                                                                           



party status was established with regard to the other defendants.  

                                                                                                                              



                9                ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc.                                                                                        , 322 P.3d     



 114, 122 (Alaska 2014) ('Determinations of which legal authorities apply in a case and                                                                                                               

 interpretations of what those legal authorities mean are questions of law subject to                                                                                                                    

 de novo review." (footnotes omitted));                                                     Alyssa B. v. State, Dep't of                                    Health &Soc.                      Servs. ,  

 123 P.3d 646, 648 (Alaska 2005) (applying de novo review to interpretation of state                                                                                                                

procedural rules).   



                                                                                                    -6-	                                                                                           7520
  


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

                         Wrongful   death   actions   may   be   brought   by   the   decedent's   personal  



representative, but '[t]he amount recovered, if any, shall be exclusively for the benefit                                                              

                                                                             10  The proceeds 'shall be distributed only after  

of the decedent's" statutory beneficiaries.                                                                                                                 



                                                                                                                                                                11  

payment of all costs and expenses of suit and debts and expenses of administration."                                                                                 

                                        



Costs may be allowed against a personal representative who is party to an action, but  

                                                                                                                                                              

                                                                                                                                       12   Alaska Civil  

they are 'chargeable solely upon the estate, fund, or party represented."                                                                                  

                                                                                                              



Rule 79(a) permits the prevailing party in a civil suit to recover allowable costs 'that  

                                                                                                                                                           



were necessarily incurred in the action"; Alaska Civil Rule 82 provides for the recovery  

                                                                                                                                                    



of attorney's fees.  

                          



                         Alaska Civil Rule 90.2(a) requires court approval of settlements made on  

                                                                                                                                                               



behalf of a minor, including those arising from wrongful death actions. 'The court shall  

                                                                                                                                                           



approve any attorneys' fees and costs that are to be paid from the settlement proceeds  

                                                                                                                                                   

when the  minor claimant is represented by counsel."13                                                         'The court shall order that  

                                                                                                                                                            

reasonable expenses . . . , costs and attorney's fees be paid from the settlement."14   And  

                                                                                                                                                            



after all litigation expenses are paid, '[t]he court shall order that the remaining balance  

                                                                                                                                                      



of the settlement . . . be disposed of in a manner which benefits the best interests of the  

                                                                                                                                                              

minor."15  We have examined the interplay between these laws on several occasions, two  

                                                                                                                                                             



of which are particularly instructive here.  

                                                                      



             10          AS 09.55.580(a).
   



             11          Id.
  



             12
         AS 09.60.040.                 



             13          Alaska R. Civ. P. 90.2(a)(3).  

                                                            



             14          Id.  § (b)(1).   



             15  

                                   

                         Id.  § (b)(2).  



                                                                               -7-                                                                        7520
  


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

                      In  Soldotna Air          personal representatives brought wrongful death actions                          



                                                                                                   16  

againstmultipledefendantson                      behalfofstatutory beneficiaries.                                                 

                                                                                                       Two defendants settled  

                                                                        17  The remaining defendant, SouthCentral  

                                                                                                                       

                                                             

before trial for more than six million dollars. 



Airlines, did not settle; it afterwards prevailed at trial and was awarded attorney's fees  

                                                                                                                                      

and costs.18         But the superior court declined to block disbursement of the settlement  

                                                                                                                            



funds or allow SouthCentral to recover from the decedents' personal representatives or  

                                                                                                                                         

statutory beneficiaries.19   On appeal we concluded that although SouthCentral could not  

                                                                                                                                        



recover from the representatives in their personal capacities, it could recover settlement  

                                                                                                                            

funds  already  distributed  to  statutory  beneficiaries.20                                We  also  determined  that  the  

                                                                                                                                       



superior court had erred in allowing distribution of the settlement, at least some of which  

                                                                                                                                   

should have been reserved to pay costs and fees to SouthCentral if it prevailed at trial.21  

                                                                                                                                              



                      We later clarified the available sources for recovering such costs and fees  

                                                                                                                                      

                                  22   We explained that the prevailing defendant could not collect  

in Zaverl v. Hanley.  

                                                                                                                                 



attorney's  fees  from  non-party  statutory  beneficiaries  in  a  wrongful  death  action  

                                                                                                                                  

                                                                                                                                  23  We  

'because they did not appear and did not make claims in their personal capacities."                                                     

                                                                                                                 



distinguished Soldotna Air on the grounds that the prevailing defendant in that case had  

                                                                                                                                       



           16         835  P.2d   1215,   1217  (Alaska   1992).
  



           17        Id.
  



           18        Id.  at   1217-18.
  



           19        Id.  at   1218-19.
  



           20        Id.  at   1222-23.  



           21        Id.  at   1221-22.  



           22         64  P.3d  809,  822  (Alaska  2003).  



           23        Id.  



                                                                    -8-                                                             7520
  


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

sought recovery from a fund created by the other parties' settlement, concluding the                                                                          



'prevailing defendant could [not] recover such an award from the statutory beneficiaries                                                    



                                                          24  

in the absence of such a fund."                                 



                                                                                                                                                   

                         If  in  a  wrongful  death  suit  the  only  party  plaintiff  is  the  personal  



                                                                                                                                                             

representative in a representative capacity, a prevailing defendant may seek fees and  



                                                                                                                                                   

costs only from a reserved settlement fund.  To effectuate our rules governing litigation  



                                                                                                                                                           

expenses, a fund must be reserved for potential attorney's fee awards. The superior court  



                                                       

correctly applied these rules here.  



                                                                                                                                                               

                          The estate attempts to distinguish Soldotna Air based on differences in the  



                                                                                                                                                          

procedural history and timeline.  It argues SouthCentral was already a prevailing party  



                                                                                                                                                            

when it attempted to collect fees and costs, whereas the non-settling defendants here  



                                                                                                                                                    

were not prevailing parties or judgment creditors. Therefore, the estate argues, Soldotna  



                                                                                                                                                       

Air does not control: 'The decision in Soldotna Air is clearly distinguishable and applies  



                                                                                                        

only where there is a prevailing party determination."  



                                                                                                                                                                      

                         We  disagree,  and  conclude  that  Soldotna  Air  controls  the  outcome.  



                                                                                                                           

Prevailing defendants are entitled to recover fees and costs, and plaintiffs in wrongful  



                                                                                                                                                             

death suits may collect proceeds only after all debts and litigation expenses are paid. The  



                                                                                                                                                              

non-settling defendants may not recover fees from Doan, as she appears only in her  



                                                                                                                                           

representative capacity.  Nor may they seek fees from R.D., as R.D. was never a party  



                                                                                                                                                              

to the suit.   Their only option for fee recovery is from a reserved fund such as the  



                                               

superior court created.  



                                                                                                                                                      

                          Our analysis does not change based on the relative size of the parties'  



                                                                                                                                                 

awards.  In Soldotna Air only part of the settlement was needed to cover the prevailing  



             24          Id.  



                                                                               -9-                                                                              7520  


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

                                                                                                                                                 25  

defendant's fees, leaving the bulk of the proceeds for the statutory beneficiaries.                                                                   But  



we   clearly   contemplated   a   situation   in   which   the   beneficiaries   might   receive   no  



settlement proceeds when we advised that '[t]he trial court here should have reserved                                                         



distribution of           some or all          of the settlement monies until it could determine the full extent                                   

                                                          26   Even though costs and fees had already exceeded the  

of 'costs and expenses of suit.' "                                                                                                                      



settlement amount, the superior court did not err by reserving the funds.  

                                                                                                                                    



                        The estate additionally argues that Soldotna Air should not be applied in a  

                                                                                                                                                           



minor settlement proceeding under Rule 90.2.  It argues that the superior court should  

                                                                                                                                       



have considered the child's best interests before that of the non-settling defendants. But  

                                                                                                                                                       



Soldotna Air also concerned the settlement of claims on behalf of a minor beneficiary of  

                                                                                                                                                          

one  of  the  decedents.27                        We  nonetheless  concluded  in  that  case  that  prevailing  

                                                                                                                                         

                                                                                                                                      28   The same  

defendants' attorney's fees were 'chargeable" against the settlement fund.                                                                          

                                                                                                                             



result must apply here.  

                                 



                        2.	         Soldotna Air 's application here does not violate due process or  

                                                                                                  

                                    public policy.  

                                                                



                        The estate argues in the alternative that Soldotna Air as applied here results  

                                                                                                                                                  



in an unconstitutional prejudgment attachment to the settlement and should therefore be  

                                                                                                                                                         



overturned.  We disagree.  Under the wrongful death statute and Rule 90.2, R.D. had no  

                                                                                                                                                         



property interest in the settlement until it was approved by the court and the litigation  

                                                                                                                                             



            25          835  P.2d  at   1217,   1219.  



            26          Id.  at   1221  (emphasis  added)  (quoting  AS  09.55.580(a)).   



            27          Id .  at   1218.  



            28          Id.  at   1222  (quoting  AS  09.60.040).  



                                                                           -10-	                                                                   7520
  


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

                                                                             29  

entirely   concluded.                                                                  Neither   Doan   nor   R.D.   suffered   any   constitutional   violation  



through the application of                                                                            Soldotna Air                                        .   



                                                    The estate finally argues that the application of our holding in                                                                                                                                                                           Soldotna Air   



is contrary to public policy, alleging that it discourages parties from settling pre-trial and                                                                                                                                                                                                                                     



urging us to overrule or narrow it.                                                                                                       But we 'will overrule a prior decision only when                                                                                                                                 



clearly convinced that the rule was originally erroneous or is no longer sound because                                                                                                                                                                      



of changed conditions, and that more good than harm would result froma departure from                                                                                                                                                                                                                                         



                                             30  

precedent."                                          We decline to do so here.                                                         



                                                    Our holdings in  Soldotna Air  and  Zaverl  protect personal representatives                                                                                                                                                      



andnon-party                                           beneficiaries frompersonal                                                                                liability for attorney's fees. Alaskalawallows                                                                                                         



prevailing parties to recoup part of the costs of defending their rights in court, but we                                                                                                                                                                                                                                            



have determined that they may not fairly do so from non-parties.                                                                                                                                                                                                 It is consistent with                                         



                                                                                                                                                                                                                                                                                                                                    

public policy to reserve settlement funds until all parties' rights and obligations are  



determined - otherwise our protective stance toward wrongful death plaintiffs would                                                                                                                                                                                                                                     



                                                                                                                                                                                                                                                                                                                         

prevent  prevailing  defendants  from  vindicating  their  legal  rights.                                                                                                                                                                                                                      Given  these  



                                                                                                                                                                                                                                                                                                                                        

considerations, we are not 'clearly convinced" that departing from our precedent in  



Soldotna Air                                       and  Zaverl  would result in 'more good than harm."                                                                                                                            



                          29                        See  AS09.55.580(a) ('Theamount                                                                                                        recoveredshallbedistributed                                                                                      only after  



payment of all costs and expenses of suit and debts and expenses of administration.");           

Alaska R. Civ. P. 90.2(a)(1) & (b)(1) (providing that before settlement on behalf of a                                                                                                                                                                                                                                                      

minor 'is effective, it must be approved by the court" and that the court must order                                                                                                                                                                                                                                       

reasonable 'costs and attorney's fees be paid from the settlement" before disbursing the                                                                                                                                                                                                                                             

remainder of the funds in the interest of the minor).                                                                                                                                                     



                          30                        Harrold-Jones v. Drury, 422 P.3d 568, 576-77 (Alaska 2018) (quoting  

                                                                                                                                                                                                                                                                                                               

 Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004)).  

                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                 -11-                                                                                                                                                         7520
  


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

                            B.	                         The Superior Court Did Not Err In Distributing Funds For Plaintiff's                                                                                                                                                                                                  

                                                        Attorney's Fees Under The Common Fund Doctrine.                                                                                                                                                    



                                                        The non-settling defendants cross-appeal, arguing that the superior court                                                                                                                                                                                                                   



 erred by allowing payment of the estate's attorney's fees and costs from the settlement                                                                                                                                                                                                                                       



 fund.    They assert that all settlement proceeds should have been reserved to pay the                                                                                                                                                                                                                                                                     



 eventual prevailing party. But it is only through the efforts of the estate and its attorney,                                                                                                                                                                                                                                       



by pursuing the claim against the settling defendants, that a fund for the defendants'                                                                                                                                                                                                                                  



recovery exists at all.  We therefore construe the wrongful death statute to incorporate                                                                                                                                                                                                                                  



the common fund doctrine, and we affirm the superior court's decision to allow payment                                                                                                                                                                                                                                                 



 of costs and attorney's fees incurred in obtaining the settlement.                                                                                                                                                                                                            



                                                        Under the common fund doctrine, 'a litigant or a lawyer who recovers a                                                                                                                                                                                                                                       



 common fund for the benefit of persons other than himself or his client is entitled to a                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                          31          This prevents a third party from  

reasonable attorney's fee from the fund as a whole."                                                                                                                                                                                                                                                                                                  



 'securing a windfall" at another's expense, keeps 'the entireburden ofthelitigation from  

                                                                                                                                                                                                                                                                                                                                                       



being borne by the injured plaintiff, prevent[s] unjust enrichment, and requir[es] passive  

                                                                                                                                                                                                                                                                                                                                            

beneficiaries to share in the costs of recovery."32  

                                                                                                                                                        



                                                        We explained the doctrine in Alaska Native Tribal Health Consortium ,  

                                                                                                                                                                                                                                                                                                                     



holding  that  a  health  care  consortium could  enforce  a  lien  on  settlement  proceeds  

                                                                                                                                                                                                                                                                                                                                   



received by patients from third-party tortfeasors but that the consortium's liens must be  

                                                                                                                                                                                                                                                                                                                                                                

reduced by a pro rata share of the patients' attorneys' fees.33   Otherwise, the consortium  

                                                                                                                                                                                                                                                                                                                           



would be unjustly enriched by litigation efforts for which it bore no expense. It was able  

                                                                                                                                                                                                                                                                                                                                                          



                            31                          Alaska Native Tribal Health Consortium v. Settlement Funds Held for or                                                                                                                                                                                             



 to Be Paid on Behalf of E.R. ex rel. Ridley                                                                                                                                          , 84 P.3d 418, 433 (Alaska 2004) (quoting                                                                                                       

Edwards v. Alaska Pulp Corp.                                                                                                     , 920 P.2d 751, 754 (Alaska 1996)).                                                                                    



                            32	                         Id .  



                            33                          Id. at 421.  

                                                                                



                                                                                                                                                                             -12-	                                                                                                                                                                    7520
  


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

to collect on its liens only because 'the plaintiffs' lawyers created a fund that would not                                                  

otherwise exist."           34  



                      Under Alaska law, the four elements of a common fund recovery are met  

                                                                                                                                            



when:  '(1) [T]he efforts of one party (2) result in the creation of a fund benefit[t]ing a  

                                                                                                                                                



third party (3) who is benefitted in a clear and well-defined manner, and (4) the third  

                                                                                                                                          

party is ready and willing to accept the benefits so obtained."35                                             We have applied this  

                                                                                                                                            

doctrine   in   workers'   compensation   cases,36                                class   action   suits,37             and   insurance  

                                                                                                                                

settlements.38            We now hold that the wrongful death statute should be construed to  

                                                                                                                                               



incorporate the common fund doctrine if these four necessary elements are present.  

                                                                                                                                              



                       The efforts of the estate and its attorney 'created a fund that would not  

                                                                                                                                             

otherwiseexist."39  Theestate's settlementwiththesettling defendants occurred over five  

                                                                                                                                            



           34         Id.  at  434  (quoting  Edwards,  920  P.2d  at  756).  



           35          O'Donnell   v.   Johnson,   209   P.3d   128,   134   (Alaska   2009)   (discussing  



doctrine  in  context  of  insurer  collecting  lien  from  patient's  recovery  fund).  



           36         See  Cooper  v. Argonaut  Ins.  Cos.,  556  P.2d  525,  527  (Alaska  1976)  

                                                                                                                                        

(interpreting statute to require reducing amount insurer is reimbursed from a worker's  

                                   

compensation disbursement by proportionate share of attorney's fees).  

                                                                                                              



           37         See Edwards, 920 P.2d at 753 (concluding plaintiffs' attorneys entitled to  

                                                                                                                                               

fees from settlement fund under common fund doctrine).  

                                                                                



           38         See Sidney v. Allstate Ins. Co., 187 P.3d 443, 445, 454-55 (Alaska 2008)  

                                                                                   

(concluding that injured passenger's insurance carrier, which had reduced its payment  

                                                                                                                               

to her by the amount she had received  from a settlement with the driver's insurance  

                                                                                                                                  

carrier, was liable for a pro rata award of attorney's fees).  But cf. O'Donnell, 209 P.3d  

                                                                                                                                           

at 135 ('[I]f an insurer chooses not to rely on services of plaintiff's counsel and provides  

                                                                                                                                    

notice of this, there is no benefit conferred and no unjust enrichment, and thus common  

                                                                                                                                    

fund rule does not apply.").  

                                 



           39         Alaska Native TribalHealth Consortium, 84P.3d at 434 (quoting Edwards,  

                                                                                                                                   

                                                                                                                           (continued...)  



                                                                     -13-                                                                7520
  


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

years into the litigation, and the estate has explained the 'nexus" between its attorney's                                                                        



work and the settlement amount.                                       Without this work, the non-settling defendants would                                                



have   no   source   from   which   to   recover   any   costs   or  fees.     They   are   third   parties  



benefitting in a clear and well-defined manner from the fund created by the estate's                                                                                   



efforts, and this appeal demonstrates that they are 'ready and willing" to accept those                                                                                     

                  40  We therefore apply the common fund doctrine to avoid unjust enrichment and  

benefits.                                                                                                                                                                       



prevent the injured plaintiff from bearing the litigation costs alone.  

                                                                                                                                               



                            Thenon-settlingdefendantsarguethatthey areonly 'indirectbeneficiaries"  

                                                                                                                                                           

of  the  estate's  efforts  to  obtain  a  settlement,41   more  akin  to  general  creditors  than  

                                                                                                                                                                             



insurance providers or holders of a medical lien, and that the common fund doctrine is  

                                                                                                                                                                                    



inapplicable.  We disagree.  

                                       



                            It  is  true  that  the  common  fund  doctrine  does  not  extend  to  'general  

                                                                                                                                                                     

obligations that existed before the plaintiff's injury."42  We declined to apply the doctrine  

                                                                                                                                                                      



in Hendricks-Pearce v. State, Department of Corrections after the State recovered on a  

                                                                                                                                                                                     

                                                                                                                               43     The State was only an  

medical debt from a prisoner's award in an unrelated suit.                                                                                                                        

                                                                                                                      



'indirect  beneficiar[y]"  of  the  prisoner's  suit  because  his  medical  expenses  were  

                                                                                                                                                                            



unrelated to the judgment in his favor, and so we rejected the prisoner's argument that  

                                                                                                                                                                                



              39            (...continued)  



920  P.2d  at  756).  



              40            O'Donnell,  209  P.3d  at   134.  



              41            Hendricks-Pearce  v.  State,  Dep't  of  Corr.,  323  P.3d  30,  39  (Alaska  2014).   



              42            Id.  



              43            Id.  



                                                                                       -14-                                                                                  7520
  


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

                                                                                                          44  

the State should pay part of his attorney's fees.                                                              The non-settling defendants claim they                                          



 are similarly indirect beneficiaries.                                            But this ignores the nature and origin of their claim                                                     



on the settlement fund.                   



                               The interplay of Alaska statutes and rules, as we recognized in                                                                                     Soldotna  



Air , necessitates consideration of a wrongful death action as a whole, even when some                                                                                                       

                                                                  45     The non-settling defendants only have a claim on the  

parties settle independently.                                                                                                                                                                    



proceeds of the estate's settlement because that settlement arose from the same suit as  

                                                                                                                                                                                                    



their  litigation  expenses.                                     If  these  were  treated  as  two  separate  legal  actions,  the  

                                                                                                                                                                                                 



defendants would have no right to collect anything; the award would already have been  

                                                                                                                                                                                              

disbursed to the estate's attorney and R.D., putting it beyond the defendants' reach.46                                                                                                              It  

                                                                                                                                                                                                     



would be inconsistent with our precedent in Soldotna Air, the course of this litigation,  

                                                                                                        



 and  the  non-settling  defendants'  own  argument  to  treat  their  claim  as  a  general  

                                                                                                                                                                                      



obligation, independent of the settlement.  

                                                                                                    



                               Applying the common fund doctrine, we conclude that the non-settling  

                                                                                                                                                                             



defendants would be responsible for a pro rata share of the estate's litigation costs in  

                                                                                                                                                                                                    



procuring the settlement. Thus, thesuperior court correctly awarded the estate's attorney  

                                                                                                                                                                                       

the costs and fees for the attorney's work securing the settlement.47  

                                                                                                                               



                44             Id.   



                45             See  In  re Soldotna  Air  Crash Litig., 835  P.2d  1215,  1221-22  (Alaska  1992);  



AS  09.55.580(a),  09.60.040;  Alaska  R.  Civ.  P.  82,  90.2.  



                46             See  Zaverl  v.  Hanley,  64  P.3d  809,  822  (Alaska  2003);  AS  09.60.040.  



                47             After  reviewing  the  terms  of  the  settlement  and  the  estate's  agreement  with  



its   attorney,   the   superior   court   approved  both   the   settlement   and   the   amounts   of   the  

 attorney's  fees  and  costs.   The  parties  have  not  disputed  this  decision  or  argued  that  the  

 fees  and  costs  were  unreasonable.   



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

IV.                    CONCLUSION  



                                             We AFFIRM the superior court's judgment.                                                                              



                                                                                                                                                       -16-                                                                                                                           7520
  

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