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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Leona Seal, Personal Representative of the Estate of Nicholson J. Tinker v. Mark C. Welty D/B/A North Country Services (4/28/2023) sp-7649
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
LEONA SEAL, Personal )
Representative of the Estate of ) Supreme Court No.: S-18244
NICHOLSON J. TINKER, )
) Superior Court No.: 3AN-17-10122 CI
Appellant, )
) O P I N I O N
v. )
) No. 7649 - April 28, 2023
MARK C. WELTY, d/b/a NORTH )
COUNTRY SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: David Murrills, Schlehofer Law Offices, P.C.,
Anchorage, for Appellant. David H. Shoup, Tindall Bennett
& Shoup, P.C., Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson Justices.
CARNEY, Justice.
I. INTRODUCTION
In Benson v. City of Nenana we held that a worker who brought a common
law negligence action against the entity for whom he worked was not entitled to a jury
trial on the question whether he was an employee or independent contractor under the
----------------------- Page 2-----------------------
1
Alaska Workers' Compensation Act. Relying on Benson, the estate of a worker killed
in a construction accident asked the superior court to hold a preliminary hearing to
determine whether he was an employee before proceeding to a jury trial on the estate's
wrongful death claim. The estate requested the determination because the Act provides
that an employer that fails to obtain workers' compensation insurance is presumed
negligent and cannot assert certain defenses against claims brought by an employee. The
superior court decided that the question of employee status was an issue for the jury to
decide. The estate petitioned for review, which we granted. Benson controls the
outcome of this case. We reverse the superior court's order that employee status be tried
to the jury and remand for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS2
Nicholson Tinker died in a work-related accident when a retaining wall at
3
a construction site collapsed on him. He was working for Mark Welty, d/b/a North
4
Country Services; Welty had no workers' compensation coverage. The owner of the
building where the accident happened also had no workers' compensation coverage.5
Tinker's mother, Leona Seal, was appointed personal representative of his
1 725 P.2d 490, 491 (Alaska 1986).
2 This is the second time this c ase has come before us. Seal v. Welty, 477
P.3d 613 (Alaska 2020). Facts are taken from the earlier decision, with additional
relevant details drawn from the record.
3 Id. at 615.
4 Id. Welty's general liability insurer denied coverage for the incident. Id.
5 Id. at 615-16.
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6
estate (the Estate). Seal filed a workers' compensation claim in her own name against
the Alaska Workers' Compensation Benefits Guaranty Fund, which joined Welty and
the property owner to the claim; the Estate later filed a wrongful death suit in superior
court.7
The Estate's complaint alleged Tinker was an employee and that under the
Act Welty was presumed negligent because he had no compensation coverage.8
Welty
disputed whether Tinker was his employee, contending Tinker was an independent
9
contractor and the Act therefore did not apply. The superior court and the Board both
began proceedings, but the Board did not schedule any hearings after learning that the
Estate wanted to pursue the civil action.10
Early in the superior court proceedings, the Estate asked the court to make
a preliminary determination of employee status and suggested a bifurcated trial for that
purpose. The Estate argued that under Benson the court, not the jury, must decide the
issue. The Estate maintained that the employee status issue should be resolved in
advance of trial, "following an appropriate evidentiary hearing" if necessary, and
requested an early resolution of the issue because of its impact on discovery and trial
6 Id. at 616.
7 Id. The superior court and the Alaska Workers' Compensation Board have
concurrent jurisdiction when, as here, there is a question of the Workers' Compensation
Act's applicability. See id. at 619 (citing Ehredt v. DeHavilland Aircraft Co. of Canada,
705 P.2d 446, 450 (Alaska 1985); Nelson v. Mun. of Anchorage , 267 P.3d 636, 643-44
(Alaska 2011); Himschoot v. Shanley, 908 P.2d 1035, 1040 (Alaska 1996)).
8 See AS 23.30.080(b) (establishing presumption of negligence when
employer is uninsured).
9 Seal, 477 P.3d at 616.
10 Id.
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preparation. At a trial setting conference the court scheduled an evidentiary hearing
about employee status as well as a date for trial on the merits.
The Estate later settled its claims against the property owner; Welty did not
11
join the settlement. As part of the settlement the Estate agreed to dismiss the workers'
compensation claim against both Welty and the property owner and also to dismiss the
12
superior court case against the property owner. The settlement specifically stated the
13
Estate was not dismissing the civil lawsuit against Welty. The parties asked the
superior court to vacate the order for the evidentiary hearing; the Estate advised the court
it had settled with the property owner and wanted to explore settlement with Welty.
After the Board proceedings concluded, Welty filed the summary judgment
motion that was the basis for our earlier decision.14 Before the superior court ruled on
Welty's summary judgment motion, the Estate filed a Motion for Ruling of Law about
employee status pursuant to Alaska Civil Rule 12(c) and (d).15 The Rule of Law motion
had three arguments related to Tinker's employment status and stressed the importance
of the issue: if Tinker were Welty's employee, Welty would be unable to assert multiple
11 Id. at 616-17.
12 Id.
13 Id. at 617.
14 Id.
15 Alaska Civil Rule 12(d) provides, "The defenses specifically enumerated
(1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the
motion for judgment mentioned in subdivision (c) of this rule shall be heard and
determined before trial on application of any party, unless the court orders that the
hearing and determination thereof be deferred until the trial." Rule 12(b) includes
jurisdictional challenges among the listed defenses.
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defenses in the wrongful death case.16
The Rule of Law motion sought a legal ruling that Tinker was Welty's
employee under the Act; the Estate appended a significant amount of factual information
to support its position. The Estate first argued that employee status is jurisdictional,
17
justifying early resolution of the issue. It also asserted that employment status was an
issue for the court and not the jury under Benson. The Estate contended that the "relative
18
nature of the work" test we adopted in Searfus v. Northern Gas Co. or the Board's
19
related regulation about employee status set out the correct legal test for deciding
16 See AS 23.30.055 (providing that employer cannot use assumption of risk,
fellow-servant defense, or contributory negligence as defenses when employer fails to
secure workers' compensation and employee brings a lawsuit against employer); see also
AS 23.30.080(a) (expanding employer's prohibited defenses if employer carries no
workers' compensation insurance).
17 When an employer has workers' compensation coverage, employee status
is clearly jurisdictional because the Board, not the superior court, has jurisdiction over
claims for injuries that are work related. See DeNuptiis v. Unocal Corp., 63 P.3d 272,
277 (Alaska 2003) (summarizing Board's "broad powers to administer the Workers'
Compensation Act" under AS 23.30.005 and AS 23.30.135, which include investigation
of claims and hearings on those claims); cf. Nickels v. Napolilli, 29 P.3d 242, 253
(Alaska 2001) (holding that superior court "properly deferred deciding any remaining
matters relating to the merits of [the employee's] administrative claims" after court
determined employee had "no tenable claim at law"). Neither defendant here denied that
the superior court had jurisdiction.
18 472 P.2d 966, 969 (Alaska 1970).
19 See former 8 Alaska Administrative Code (AAC) 45.890, repealed 8 AAC
Register 230 (May 12, 2019) (setting out factors to weigh in determining employee
status). After the legislature amended the Workers' Compensation Act in 2018 to
modify the definition of "employee" and to add independent contractors to the list of
occupations not covered by the Act, ch. 91, §§ 17, 21, SLA 2018, the Board repealed
8 AAC 45.890. See Alaska Workers' Compensation Board Meeting Minutes at 4 (Oct.
(continued...)
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employee status. Based on that test, it argued that the facts demonstrated Tinker was an
employee and not an independent contractor.
Welty countered that the Rule of Law motion was really a motion for partial
summary judgment and therefore the evidence needed to be construed in his favor.
20
Welty argued that the common law master-servant rule from another tort context was
the applicable legal test for employee status, not the relative nature of the work test. He
maintained that material factual issues precluded summary judgment. Welty's
opposition did not address whether the jury or the court should determine employee
status.
In reply the Estate insisted that the Rule of Law motion was not one for
partial summary judgment, writing that it was undisputed that the issue of employee
status was "a preliminary issue of law and fact that only the [c]ourt (and not a jury) has
to decide." (Emphasis omitted.) The Estate agreed that material factual disputes existed
and said the issue was not "susceptible to resolution" on summary judgment. The Estate
21 the court was required to resolve employee status and
reiterated that under Benson
argued that under Rule 12(d) the parties could request a hearing to resolve factual
disputes or the court could make findings based on the written evidence the parties had
submitted.
The court then granted Welty's initial summary judgment motion
19 (...continued)
4-5, 2018), https://labor.alaska.gov/wc/forms/2018-10-Board_Meeting_Minutes.pdf.
20 See Powell v. Tanner, 59 P.3d 246, 248-50 (Alaska 2002) (adopting
independent contractor test from Restatement of Agency to determine whether
tortfeasor's employer was liable under the doctrine of respondeat superior).
21 Benson v. City of Nenana, 725 P.2d 490 (Alaska 1986).
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22
dismissing the case, and decided that all the pending motions, including the Rule of
Law motion, were moot. When we reversed the dismissal and remanded for further
23
proceedings we noted that Tinker's employee status had not been resolved in the Board
24
proceeding and continued to be an open question.
Shortly after the remand, the Estate requested a ruling on the Rule of Law
motion, observing that the motion had been ripe before the appeal. The superior court
allowed Welty to respond to the request for a ruling if he was "opposed to [the Estate's]
request for ruling." In his response Welty did not oppose the court issuing a ruling, but
he included new legal arguments in opposition to the motion. Welty contended that
Benson did not apply because the employee status question was governed by the
common law rather than the Act. He argued that the issue of employee status had been
25 26
and in Nickels v. Napolilli, another
determined "at trial" (emphasis omitted) in Benson
case the Estate relied on, rather than at a "preliminary hearing." Welty distinguished
Benson because in that case the employer raised the exclusive liability defense, while he
22 Seal v. Welty, 477 P.3d 613, 618 (Alaska 2020).
23 Id. at 626.
24 Id. at 621.
25 Benson, 725 P.2d 490. The superior court i n Benson "granted the city a
bench trial on the issue of whether Benson was an employee or an independent
contractor," after which the employee petitioned for review, which we granted. Id. at
491. We "heard [the petition] on an expedited basis, and entered an order affirming the
decision" before issuing the opinion. Id.
26 29 P.3d 242 (Alaska 2001). In Nickels the superior court held a preliminary
bench trial on the issue of employee status and decided Nickels was an employee under
the Act. Id. at 246. Shortly before a scheduled jury trial, Nickels abandoned her tort
claims, and the superior court granted the employers' motion to dismiss but gave Nickels
90 days to file a workers' compensation claim with the Board. Id.
-7- 7649
----------------------- Page 8-----------------------
had not.
The superior court denied in part and granted in part the Estate's Rule of
Law motion, treating it as one for partial summary judgment. The court decided that the
relative nature of the work test applied and that material factual disputes precluded
summary judgment about Tinker's status. The court then turned to the question whether
a separate bench trial was necessary and concluded it was not because the jury should
decide the employee status question. The court considered five of our decisions about
the exclusive liability provisions of the Act, dividing them into two categories. The court
27 28
interpreted Benson and Benner v. Wichman as cases in which "the injured parties were
already classified as employees and their respective employers carried workers'
compensation,"29 with the sole issue being whether the exclusive liability defense
applied. The court reasoned that Benson and Benner were distinguishable because Welty
did not have compensation coverage, and so could not raise the exclusive liability
defense. The court interpreted the other three cases as being about employee
27 725 P.2d 490.
28 874 P.2d 949 (Alaska 1994) (applying the relative nature of the work test
to determine whether a sub-subcontractor was an employee of subcontractor).
29 Employee status was in fact contested in both Benson and Benner. In
Benson the injured worker contended he was an independent contractor, while the City
of Nenana argued he was an employee. Benson, 725 P.2d at 490-91. The question in
Benner was whether a defendant was a co-employee, who was covered by the exclusive
liability provision, or an independent contractor, who was not. Benner, 874 P.2d at 952-
53.
-8- 7649
----------------------- Page 9-----------------------
30 31
classification. The court thought that both Trudell v. Hibbert and Nickels v. Napolilli
involved "bench trials to determine the classification . . . as either employees or
32
independent contractors," while Odsather v. Richardson presented an issue of
classification decided on summary judgment. Apparently because it believed that
Benson 's holding rested on the availability of the exclusive liability defense rather than
the broader question of the Act's applicability, the court decided the jury should
determine whether Tinker was an employee or independent contractor.
The Estate moved for reconsideration, contending that Benson was
"dispositive and controlling" on the issue whether the court and not the jury should
determine employee status. The Estate pointed out that Benson involved an employee
classification dispute and argued the court had distinguished Benson for a reason "that
simply does not exist." The Estate maintained that none of the cases the court relied on
was inconsistent with the rule that the court and not the jury should decide employee
status. The Estate argued that employee status needed to be resolved before trial because
the determination would have "a profound impact" (emphasis omitted) on several issues
33
for trial, such as the burden of proof.
30 272 P.3d 331 (Alaska 2012), vacated in part on other grounds 299 P.3d
1279 (Alaska 2013) (considering whether property owners were "project owners" under
AS 23.30.045).
31 29 P.3d 242 (Alaska 2001).
32 96 P.3d 521 (Alaska 2004) (holding that factual disputes precluded
summary judgment on co-employee status of two truckers who were involved in
collision).
33 See AS 23.30.080(b) ("In an action by an employee against an employer
for personal injury sustained arising out of and in the course of the employment where
the employer has failed to insure or to provide security as required by AS 23.30.075, it
(continued...)
-9- 7649
----------------------- Page 10-----------------------
The court allowed Welty to respond to the Estate's reconsideration motion
and further permitted the Estate to reply. Welty opposed reconsideration, arguing for the
first time that Benson required employee status to be tried to a jury when there were
common issues of fact between employee status and negligence. Welty also contended
that "absent the [employer]'s defense of the exclusive remedy provision . . . the issue
would have gone to the jury," relying on a statement in Benson that distinguished a rule
34
about when equitable and legal claims overlap. Welty distinguished other cases
35
because the employer had raised exclusive liability as a defense. Welty tried to
distinguish Nickels by incorrectly asserting that in the Estate's case "there is no claim
that the [Alaska Workers' Compensation Act] applies."
In reply the Estate argued that employee status in this case was a statutory
issue, "not an issue that existed at 'common law,' " so the right to a jury trial did not
apply. The Estate asserted that Benson rejected the very argument Welty was making.
It also responded to Welty's argument that AS 23.30.080 did not apply by pointing out
that AS 23.30.080 would not apply only if Tinker was not an "employee" under the Act,
which was the precise issue about which the Estate sought a preliminary determination.
33 (...continued)
is presumed that the injury to the employee was the first result growing out of the
negligence of the employer and that the employer's negligence was the proximate cause
of the injury; the burden of proof rests upon the employer to rebut this presumption of
negligence." (emphasis added)).
34 Benson, 725 P.3d at 491.
35 Alaska Statute 23.30.055 refers to an employer's liability rather than an
employee's remedy. When an employer is insured or self-insured, workers'
compensation is an employee's sole remedy against his employer for injuries that fall
within the Act's coverage, so this section is also sometimes called the exclusive remedy
provision. E.g., Benner v. Wichman, 874 P.2d 949, 951-52 (Alaska 1994) (referring to
"exclusive remedy" when discussing AS 23.30.055).
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----------------------- Page 11-----------------------
The court never ruled on the reconsideration motion, so it was deemed
denied.36 We granted the Estate's petition for review of the court's decision to try the
employee status issue to the jury.
III. STANDARD OF REVIEW
We apply our independent judgment to questions of constitutional and
37
statutory interpretation. We review de novo the superior court's interpretation of the
civil rules.38
IV. DISCUSSION
A. Benson v. City of Nenana Requires That The Court, Not The Jury,
Decide Whether Tinker Was Welty's Employee Or An Independent
Contractor.
The Estate's case presents the exact issue we decided in Benson, where we
held that the question of an injured person's status as an employee or independent
contractor under the Act was an issue for the court and not for the jury. Welty attempts
to distinguish Benson on several grounds, all of them unavailing.
Welty asserts that the superior court's order correctly stated that the issue
in Benson "was not whether the injured worker was an independent contractor or an
employee" (emphasis in original) because the City of Nenana had classified Benson as
an employee. The superior court was mistaken. In Benson "[t]he city contended that
Benson was an employee of the city and thus it was liable only under the provisions of
the . . . Act. Benson, on the other hand, claimed that the Act did not apply because he
36 Alaska R. Civ. P. 77(k)(4).
37 Burke v. Raven Elec., Inc., 420 P.3d 1196, 1202 (Alaska 2018).
38 Wolff v. Cunningham, 187 P.3d 479, 482 (Alaska 2008).
-11- 7649
----------------------- Page 12-----------------------
39
was an independent contractor." As here, one party in Benson claimed the worker was
an employee and the other that he was an independent contractor, and they disputed the
applicability of the Act to the facts of the case. The only difference between Benson and
this case is which party claims that the worker was an independent contractor.
Welty next argues that "the rule of Benson applies to defenses, not to
affirmative claims asserted on behalf of injured workers." Benson is not so limited. In
Benson we discussed the City's defense because it was at issue, but our reasoning began
with the broader premise that "[n]ot all issues o f fact a rising in a legal action must be
40
tried by a jury." That rule is not limited to defenses. Shope v. Sims, which first adopted
the federal law rule concerning trial to the jury of fact issues common to equitable and
legal claims, involved affirmative claims, not defenses.41 In the context of injured
workers' civil lawsuits for damages against putative employers, the question of the Act's
applicability usually arises when an employer raises the exclusive liability defense,42 but
it can arise in other contexts, as Nickels v. Napolilli demonstrates.43
Nickels included a breach of contract action that rested on the injured
party's status as an employee under the Act.44 We affirmed the superior court's
determination - made at a bench trial held weeks before a scheduled jury trial - that
39 Benson, 725 P.2d at 490-91.
40 Id. at 491.
41 658 P.2d 1336, 1340 (Alaska 1983).
42 E.g., Benson, 725 P.2d at 490-91 (exclusive liability in context of employee
status); Himschoot v. Shanley, 908 P.2d 1035, 1037 (Alaska 1996) (exclusive liability
in context of work-relatedness of injury).
43 29 P.3d 242 (Alaska 2001).
44 Id. at 247.
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the injured party was an "employee" under the Act (as well as the court's dismissal of
45
the injured employee's breach of contract action). Nickels demonstrates that a court
may need to determine employee status in a preliminary proceeding outside the context
of an exclusive liability defense. Nickels also illustrates how preliminary determinations
of the Act's applicability can impact litigation: the Act's applicability limited the injured
party's causes of action in the superior court.46
Whether raised by an employer or
employee, the Act's applicability is a legal determination with factual underpinnings47
that the court should decide as a preliminary matter.
Finally Welty attempts to distinguish this case from Benson by asserting
48
that this case falls within the rule of Beacon Theaters v. Westover, that " when a case
contains both legal and equitable claims, the common facts must be first tried to a jury."49
50 Welty maintains
Relying on D.S.W. v. Fairbanks North Star Borough School District
that certain factors in the relative nature of the work test are sufficiently similar to factors
we discussed in D.S.W. so that the jury must consider the D.S.W. factors to decide factual
issues relevant to Welty's duty of care to Tinker. We reject this argument because it
misunderstands the way the D.S.W. factors are applied.
45 Id. at 246, 254.
46 Id. at 249 (holding that Act permits only tort actions when injured employee
opts to pursue superior court action against uninsured employer).
47 Id. at 247 (holding that whether someone is an "employee" under Act "is
a mixed question of law and fact").
48 359 U.S. 500 (1959).
49 Benson v. City of Nenana, 725 P.2d 490, 491 (Alaska 1986).
50 628 P.2d 554, 555 (Alaska 1981) (quoting Peter W. v. S.F. Unified Sch.
Dist., 131 Cal. Rptr. 854, 859-60 (Cal. App. 1976)).
-13- 7649
----------------------- Page 14-----------------------
The D.S.W. factors are "seven public policy considerations we use to
determine whether we should recognize a negligence duty not otherwise defined by
51
law." The D.S.W. factors come into play after we first consider "whether a duty is
imposed by statute, regulation, contract, undertaking, the parties' preexisting
relationship, or existing case law"; if no duty is imposed under those authorities, we
52
apply the D.S.W. factors to determine whether we should recognize a negligence duty.
Juries do not determine the existence of the D.S.W. factors, nor do juries weigh the
D.S.W. factors to decide whether a duty of care exists. Because the only "common facts"
Welty identifies are not fact issues but policy considerations, we reject his argument that
this case is an exception to Benson.
The duty of care Welty owed Tinker is affected by the legal relationship
53
The Estate alleged that the Act applied and that Tinker was
that existed between them.
an "employee" under it, while Welty alleged Tinker was an independent contractor. The
superior court must determine whether Tinker was Welty's "employee" as defined in the
54
Act. Because the Act does not provide a right to a jury trial, under Benson the factual
51 Geotek Alaska, Inc. v. Jacobs Eng'g Grp., Inc., 354 P.3d 368, 376 (Alaska
2015).
52 Id. (quoting McGrew v. State, Dep't of Health & Soc. Servs., Div. of Fam.
& Youth Servs., 106 P.3d 319, 322 (Alaska 2005)).
53 Compare Haskell Plumbing & Heating Co. v. Weeks, 237 F.2d 263, 265
(9th Cir. 1956) (recognizing that employer owes "common law duty to provide its
employees with a reasonably safe place to work and reasonably safe equipment and
appliances in connection therewith"), with Morris v. City of Soldotna, 553 P.2d 474, 478
(Alaska 1976) (recognizing "general rule" that employer of independent contractor "is
not responsible for the negligence of the latter" unless employer has retained control over
some aspect of work).
54 In their briefing the parties dispute the precise legal test to use in evaluating
(continued...)
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issues related to employee status must be decided by the court, not a jury.
B. The Superior Court Must Decide Employee Status In Advance Of The
Jury Trial.
The Estate argues that the superior court should resolve the employee status
issue early in the litigation just as the superior court resolves discovery rule disputes in
55
statutes of limitations defenses.
Welty appears to argue that a preliminary proceeding
to determine facts is not appropriate because the statute of limitations is a defense, and
he did not raise the exclusive liability defense. We agree with the Estate that employee
status should be decided as a preliminary issue.
The Act's applicability may arise in several distinct procedural contexts
when an injured party brings a superior court negligence action for a work-related injury.
An employer-defendant may raise the issue as a defense, and in those circumstances it
54 (...continued)
whether Tinker was an employee. The Estate asserts that the 2018 amendment to the Act
should apply because it codified the relative nature of the work test. In its original
motion, the Estate based its argument on the Board's regulation. On appeal Welty
contends that "neither the statute nor the regulation are parts of the relative nature of the
work test" from our precedent. This issue is not properly before us, and we leave it to
the superior court to determine in the first instance whether the statutory standard
applies. The Board's regulation was explicitly based on the relative nature of the work
test. 8 AAC 45.890, repealed 8 AAC Register 230 (May 12, 2019) ("[T]he [B]oard will
determine whether a person is an 'employee' based on the relative-nature-of-the-work
test."). The Board and the superior court have concurrent jurisdiction over this issue, so
the tests should be substantially the same. Cf. Benner v. Wichman, 874 P.2d 949, 952
(Alaska 1994) ("Alaska has adopted the 'relative nature of the work' test for determining
when a person is another's employee." (citing Searfus v. N. Gas Co., 472 P.2d 966, 969
(Alaska 1970); 8 AAC 45.890 (1991))).
55 Cf. Pedersen v. Zielski, 822 P.2d 903, 907 n.4 (Alaska 1991)
(recommending to superior court that evidentiary hearing be conducted "well in advance
of trial to resolve fact questions" related to statute of limitations).
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----------------------- Page 16-----------------------
56
may be a jurisdictional question. It may also be the subject of a summary judgment
motion.57
In this case the Estate's Rule of Law motion relied on Civil Rule 12 as a
58
basis f or requesting a hearing, implying there could be some jurisdictional question.
Subject matter jurisdiction is "the legal authority of a court to hear and decide a
59
particular type of case." In this case the superior court clearly had jurisdiction,
60
particularly after the Board dismissed the workers' compensation proceeding, so
Rule 12 did not provide a basis for requesting a hearing. But the superior court can hold
evidentiary hearings under Alaska Civil Rule 77(i) on any motion. Alternatively, it can
order a separate trial of any issue "when separate trials will be conducive to expedition
61 We agree with the Estate that prompt resolution of employee status is
and economy."
important because of its possible effect on such basic issues as the type of action a party
56 See Seal v. Welty, 477 P.3d 613, 619 (Alaska 2020) (noting that Board
cannot adjudicate civil claims); Nickels v. Napolilli, 29 P.3d 242, 254 (Alaska 2001)
(holding that claims remaining after superior court decided injured party was an
"employee" under the Act "must be left to the Alaska Workers' Compensation Board for
resolution").
57 E.g., Benner, 874 P.2d at 951 (describing cross-motions for summary
judgment on employee status).
58 Civil Rule 12(d) provides that defenses listed in Rule 12(b), including
jurisdiction, "shall be heard and determined before trial on application of any party"
unless the court defers the issue until trial.
59 State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Michelle P.,
411 P.3d 576, 582 (Alaska 2018) (quoting Hawkins v. Attatayuk , 322 P.3d 891, 894
(Alaska 2014)). The Estate's motion did not specify what type of jurisdiction might be
at issue, but there is no indication that personal jurisdiction was contested.
60 Seal, 477 P.3d at 625-26.
61 Alaska R. Civ. P. 42(b).
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----------------------- Page 17-----------------------
can bring or the burden of proof for negligence.
V. CONCLUSION
We REVERSE the superior court's order that the jury decide the issue of
employee status and REMAND for further proceedings consistent with this opinion.
-17- 7649
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