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Irby v. Fairbanks Gold Min., Inc.

Supreme Court of Alaska

March 20, 2009

Edward P. IRBY, Deceased, and Cartrie Irby, Edward P. Irby II, and Hannah C. Irby, Beneficiaries, Appellants,
FAIRBANKS GOLD MINING, INC., and Old Republic Insurance Co., Appellees.

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Chancy Croft, Chancy Croft Law Office, Anchorage, for Appellants.

Constance Cates Ringstad, McConahy, Zimmerman & Wallace, Fairbanks, for Appellees.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.


EASTAUGH, Justice.


This appeal concerns the timeliness of a March 2004 workers' compensation claim. Edward Irby disappeared in an apparent industrial accident on April 13, 1997. Irby's wife promptly petitioned the Fairbanks district court for a presumptive death certificate, but in October 1997 the district court jury determined there was insufficient evidence

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to presume Irby dead. In 2003 Irby's son filed a second presumptive death petition; the jury in this second proceeding decided in October 2003 that Irby was presumed dead in the industrial accident. Irby's widow filed a workers' compensation claim for herself and her children in March 2004. The Alaska Workers' Compensation Board rejected Irby's employer's contention that the claim was untimely and awarded death benefits. The employer appealed to the superior court, which reversed. It held that the one-year statute of limitations, AS 23.30.105(a), began running on April 13, 2002, when Irby was presumed dead per AS 13.06.035(5), and that the March 2004 claim was therefore untimely. Applying tolling principles and because Irby's family acted reasonably in pursuing a presumptive death certificate Before filing a claim for workers' compensation benefits, we hold that the claim was timely and remand for reinstatement of the board's decision and order.


Edward Irby worked as a truck driver at the Fort Knox Mine, operated by Fairbanks Gold Mining, Inc. The event resulting in this workers' compensation claim happened about two days after Irby began training to operate a bulldozer. On April 13, 1997, the bulldozer Irby was operating traveled backward down a steep slope into a tailing pond and broke through the ice. The bulldozer was completely submerged. No one saw the accident, but Irby's shift supervisor, observing that Irby was not at his assigned location, discovered the accident site shortly after Irby was last seen.

Fairbanks Gold summoned emergency personnel, including the Alaska State Troopers. Divers from the troopers went into the pond within two hours of the accident, hoping to find Irby; they were unsuccessful. After the troopers ended their recovery efforts, Fairbanks Gold unsuccessfully continued to search for Irby's body throughout the summer. At the time of his disappearance, Irby had a wife and two minor children. Fairbanks Gold filed a notice of the accident with the Alaska Workers' Compensation Board in April 1997; a month later the employer filed a notice of controversion, stating that benefits were denied pending further investigation.

In late May 1997 Irby's wife, Cartrie Irby, invoking AS 09.55.020-.060, filed a presumptive death petition in state district court. After a hearing at which eight witnesses testified, a jury decided in October 1997 that there was not enough evidence to presume that Irby had died. In December 1997 Fairbanks Gold filed a second controversion with the board; this controversion relied on the jury verdict. The following year Cartrie Irby contacted the workers' compensation insurance adjuster and the board about benefits. She received conflicting information from the board: one staff member told her that it would be " premature" to file for benefits in light of the jury verdict, but another suggested that the time for filing had already expired.

In July 2003 Irby's son, Edward II, who was by then an adult, filed a second presumptive death petition. The jury in that case decided in October 2003 that Irby was presumed to have died on April 13, 1997 in the Fort Knox Mine accident. The Bureau of Vital Statistics issued a presumptive death certificate on November 7, 2003. Cartrie filed a workers' compensation claim for death benefits in March 2004 on behalf of herself and her children. Fairbanks Gold filed an answer and controversion, incorporating its previous controversions and asserting that the statute of limitations and laches barred the claim.

An attorney entered an appearance for the Irbys on March 21, 2005 and soon asked the board to set a hearing on the claim. Fairbanks Gold petitioned the board to dismiss the claim based on the statute of limitations and laches. It alleged in later pleadings that Irby was still alive and that his dependents consequently should receive no benefits. The board held a hearing over three days on the petitions and claim. Applying a type of discovery rule to decide when the statute of limitations began to run, the board decided that Cartrie had timely filed the March 2004 workers' compensation claim and awarded her and the children benefits as well as attorney's fees and costs. The board declined to

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award the Irbys a penalty for Fairbanks Gold's failure to pay benefits after the second jury verdict, finding that Fairbanks Gold had not filed its 2004 controversion in bad faith.

Fairbanks Gold appealed to the superior court, and the Irbys cross-appealed the denial of a penalty. Fairbanks Gold asked the court to stay payment of past benefits and requested expedited consideration of the issue. The superior court appeal was initially assigned to Superior Court Judge Pro Tempore Raymond M. Funk, who set an expedited briefing schedule and hearing. Fairbanks Gold peremptorily challenged Judge Funk, and the case was reassigned to Superior Court Judge Randy M. Olsen. The Irbys filed their opposition to the stay motion on September 22, 2005. On Friday, September 23, the court faxed the Irbys' attorney notice that a hearing on the motion for stay would be held Before Judge Olsen on Monday, September 26 at 10:00 a.m.; it also mailed the Irbys' attorney the notice of reassignment to Judge Olsen. The Irbys' attorney attended and participated in the hearing on September 26.

On September 29 the Irbys filed a peremptory challenge of Judge Olsen. Fairbanks Gold objected to the challenge because of the Irbys' participation at the September 26 hearing. The Irbys responded that they had not received the notice of reassignment to Judge Olsen until after the hearing. Presiding Superior Court Judge Niesje J. Steinkruger denied the ...

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