March 27, 2009

Weekly Summary of Alaska Supreme Court Opinions

We are covering two weeks worth of opinions today.

Last week, the court issued Irby v. Fairbanks Gold Mining, Inc., where it held that a workers’ compensation claim was not untimely when the family of a deceased employee waited until after the five-year presumptive death period expired to file a successful presumptive death petition. The court relied on the fact that the employer had notice of the claim and was not prejudiced by the delay, as well as the fact that the family’s first presumptive death petition, filed soon after the industrial accident in which the employee likely died, had been denied for insufficient evidence. This case was a relatively straight-forward application of the doctrine of equitable tolling, as the employee’s family consistently asserted their rights in a different judicial forum. What is missing from the case is a discussion why the employer denied that the employee had died, given that the employee's bulldozer was found at the bottom of a tailings pond shortly after the employee (and his bulldozer) disappeared.

This week, the Alaska Supreme Court issued four opinions. In Allen v. State, Dept. of Health & Social Services, Div. of Public Assistance, the court considered whether the State could recover overpayments of food stamps from recipients, where the overpayment was caused by the State’s error. The court held that Alaska’s common law of equitable estoppel, which would normally have barred the State’s claim for repayment, was preempted by federal law, which required the State to recoup overpayments. The court, however, also held that the notice provided by the State to the recipients was insufficient and violated due process, and ordered the State to issue a new notice before seeking reimbursement. The court recommended that, in connection with the new notice, the State consider the hardship the beneficiaries would suffer as a result of the State’s recoupment efforts.

In In the Matter of the Adoption of S.K.L.H., the court addressed whether an adoption could be rescinded based on the birth mother’s misunderstanding as to the level of visitation she would have with the child that was being put up for adoption. The court held that the birth mother’s misunderstanding was not a basis for rescinding the adoption, but that the trial court should determine the proper amount and type of visitation between the birth mother and the child.

Ted W. v. State, Dept. of Health & Social Services, OCS, held that a father whose parental rights had been revoked had no standing to contest a finding that his child was a child in need of aid, even if the child had been temporarily placed in his custody after his parental rights were terminated.

Finally, in Clemensen v. Providence Alaska Medical Center, an elderly woman with Alzheimer’s was released by a hospital to her adult daughter. The elderly woman subsequently filed for divorce from her husband. Her husband brought suit against the hospital, claiming economic damages and emotional distress out of the fact that the hospital had promised to release the elderly woman only into his custody. The court affirmed the trial court’s dismissal of the husband’s claims that were based on the divorce filing, finding that, as a matter of law, there is no claim for damages arising out of a divorce. The court also held that the husband’s claim for breach of fiduciary duty, which sought damages independent of his divorce, was barred by the tort statute of limitations.

It is this last finding of the Alaska Supreme Court that is most interesting. In past decisions, the court has consistently applied the contract statute of limitations to claims for breach of fiduciary duty. In Clemensen, however, the court stated in a footnote that the source of the fiduciary duty will determine the proper statute of limitations. Thus, in some breach of fiduciary duty cases, the tort, and not contract, statute of limitations will apply. This is a significant break from prior Alaska case law, and it is surprising that it was done in a footnote, and when such a holding was not necessary to decide the case.

March 19, 2009

Scoping Out 50 Years Of Statehood

Alaska is celebrating 50 years of statehood this year. Speaking as a 50-plus year old guy, I know what comes next. That’s right, it’s time for Alaska to get a colonoscopy.

No doubt the State could really benefit from a good cleansing and inspection of its lower tract. All the nastiness the federal gummint, the oil companies and the politicians have shoved down Alaska’s throat over the years had to end up somewhere. We need to be sure those hazardous materials are out of the way to prepare for the smooth operation of the State for the next 50 years. Sure, these medical procedures can be expensive, but I think we could use federal stimulus money to pay for it. It ought to qualify as a shovel-ready infrastructure project since it’s critical maintenance of Alaska’s Old Dirt Road.

6a00e55007cfb1883400e5534c305e8833-800wi.jpg I can just imagine our Official State Gastroenterologist, Dr. Ashman, performing the procedure. The Doc will slip the colonoscope into Alaska’s anal canal, which is otherwise known as the State Capitol Building in Juneau. A little lubrication may be required to do the job properly. The usual lubricant for that location would probably work best. So the Doc is going to have to slip the Sergeant-At-Arms guarding the door a little cold hard cash.

As the scope enters the State’s sigmoid colon, Doc A is going to encounter a tough bezoar of hair and whatnot lodged there. The hair is left over from Ramona Barnes’ beehive 'do when she ran the Legislature, and it’s all bound up with tufts of llama fur that must have come off of one of the power suits former Senate President Jan Faiks wore. Yikes! Alaska doesn’t need that stuff anymore, not now that a new woman has a firm grip on the seat of power. The Doc will have to prise the hairball loose and flush it out of there.

Moving on up the descending colon, the scope will come upon a series of lesions in the intestine wall leaking an oily fluid and surrounded by ugly bile stains. Yes, it’s the sad remnants of the Exxon Valdez oil spill. The Doc makes a note in the medical chart to be sure to pursue the $100 million “Reopener” clause in the settlement agreement reached in the civil lawsuit against Exxon. In legal terms, this is known as asking for additional unforeseen damages, but in medical parlance the procedure is called a “walletectomy.” The Doc also notes that perhaps the lesions would heal up on their own if Exxon would just spoon-feed the State a strong dose of gas line development elixir.

The scope next passes into the transverse colon. Here, the Doc finds an odd looking polyp wiggling around. His first inclination is to snip the thing off. But then he takes a closer look and recognizes it as the Alaskan Independence Party. The Doc knows that this thing is benign. In fact, Alaska has gotten good use out of the AIP. It made for great copy during the last election when reporters from Outside discovered Todd Palin was previously an AIP member. So they thought the First Dude was advocating for Alaska to secede from the union!

Plus, Doc A recalls that there are guys in Russia predicting the economic collapse of the USA with Alaska reverting to Russian control. The AIP could come in handy if that came to pass. Almost all Alaskans would agree it’s far better to set up the independent Republic of Alaska than to become Extremely East Siberia. So the Doc leaves the AIP polyp alone.

Dr. Ashman finally pushes the scope all the way up to the ascending colon. Oh My Goodness! He finds diverticulosis, not far from the cecum. And it’s red and inflamed, clear signs of an active infection. This, of course, is the VECO scandal through which Alaskans have discovered just how little money it takes to buy an Alaska politician.

Doc A makes a final note to call the specialists from Washington, D.C. about this diverticulosis. A diet higher in fiber would also help, with the fiber being politicians who have a backbone and some actual integrity. The Doc has no illusions, though, about Alaska embracing the lifestyle changes that are necessary for this to happen.

And there you have it. Not a pretty picture, but a necessary thing for the future health of any 50 year old.

March 13, 2009

Weekly Summary of Alaska Supreme Court Opinions

In Southeast Alaska Conservation Council v. State, the court held that Article IX, Section 7 of the Alaska Constitution, which bans dedicated funds, prohibited the legislature from directing that income earned on lands transferred by the State to the University of Alaska be placed in the University’s endowment fund. The court also rejected the State’s argument that Article IX, Section 7 did not apply to lands owned by the University, holding that University lands are State lands. The court concluded by finding that the land grant provision of the challenged legislation could not be severed from the unconstitutional portion of the challenged legislation.

In Cusack v. Cusack, the court considered a custody dispute. The court affirmed the trial court’s decision to award physical and legal custody to one parent, to no order family counseling, and to permit the parent with physical and legal custody the option of sending the child to boarding school.

March 9, 2009

Weekly Summary of Alaska Supreme Court Opinions

There were three reported decisions issued by the Alaska Supreme Court this week.

In Wooten v. Hindon, an insurer had defended the insured under a reservation of rights, and the insured had retained its own counsel. The plaintiff settled with the defendant’s insurer. When the plaintiff attempted to dismiss the case with prejudice, because of its settlement with the defendant’s insurer, the defendant objected, and argued that it (the defendant/insured) was the prevailing party and should be awarded attorney’s fees. The Alaska Supreme Court rejected this argument, unsurprisingly finding that payment by the insurer to the plaintiff in complete settlement of the plaintiff’s claims against the insured meant that the insured was not the prevailing party.

In Progressive Casualty Ins. Co. v. Skin, the Alaska Supreme Court considered whether an automobile insurance policy covered the son of an insured for liability arising out of an accident that happened when the son was operating an ATV. Applying well-recognized principles of insurance contract interpretation, the court held that the policy’s liability coverage covered only accidents involving automobiles and trucks, and excluded coverage for accidents involving ATVs. The court, however, also held that the son was entitled to coverage under the policy’s medical payments provisions, as that part of the policy did not clearly exclude coverage for accidents that occurred while operating an ATV. The court held that the language in the medical payments provision of the policy was inconsistent with the language of in the policy’s liability coverage provision, and that inconsistency should be construed in favor of coverage.

Finally, in Brotherton v. State, Dept. of Revenue, CSSD, the Alaska Supreme Court considered the proper amount of child support to award in a child custody case.

March 2, 2009

Weekly Summary of Alaska Supreme Court Opinions

While some members of Atkinson Conway & Gagnon have been using this blog to get their name in the paper, others, namely your humbled writer, have fallen by the wayside, as has been so directly (and unnecessarily) pointed out. That trend ends now, in large part because of Ayuluk v. Red Oaks Assisted Living, Inc., in which the Alaska Supreme Court expanded the scope of vicarious liability in Alaska. Under the normal rules, an employer is legally responsible for any harm caused by an employee only if that employee was acting within the “course and scope” of his or her employment. In Ayuluk v. Red Oaks Assisted Living, Inc., the Alaska Supreme Court held that an employer could be legally responsible for the acts of an employee, even if those acts are clearly outside the course and scope of their employment, if (1) the employee had, by reason of their employment, “substantial power or authority” over the victim, and (2) that power or authority played a “substantial factor” in bringing about the tort. While this holding is a logical extension of the Court’s previous decisions in the cases involving sexual harassment, it is a significant expansion of an employer’s possible liability. Although the “course and scope” of employment test will continue to be the predominate test for vicarious liability, there is now the possibility that an employer can be liable for even egregious torts (or crimes) committed by an employee, if that employee was able to commit that tort because of the power and authority granted to him by his employer.

The other decisions issued by the Alaska Supreme Court on February 20th and 27th do not, however, break any new ground. Kazan v. Dough Boys, Inc."> addresses a dispute arising out of the sale of a business and an “overbroad financing statement,” and stands for the rather unremarkable position that a court should not enforce a contract against just one of the parties, absent unconscionable terms. Alaska Exchange Carries Association, Inc. v. Regulatory Commission of Alaska applies the rules governing intervention, while State v. Smart held that the United States Supreme Court’s decision in Blakely v. Washington did not apply to persons convicted prior to the issuance of that opinion.