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Atkins v. Inlet Transportation & Taxi Service, Inc.

Supreme Court of Alaska

September 21, 2018

TRACY O. ATKINS, Appellant,

          Appeal from the Alaska Workers' Compensation Appeals Commission No. 14-011

          Eric Croft, The Croft Law Office, Anchorage, for Appellant.

          Siobhan Mclntyre, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska, Workers' Compensation Benefits Guaranty Fund.

          No appearance by Inlet Transportation & Taxi Service, Inc.

          Before: Stowers, Chief Justice, Winfree, Bolger, and Carney, Justices. [Maassen, Justice, not participating.]




         A taxi driver was injured in a car accident while working. The taxi driver later filed a report of injury with the Alaska Workers' Compensation Board, but the nature of the employment relationship between the taxi company and the driver was disputed. The taxi driver retained an attorney for a tort suit against the other driver, settling that claim with the driver's insurance company without the taxi company's approval. Because the taxi company did not have workers' compensation insurance, the Alaska Workers' Compensation Benefits Guaranty Fund (the Fund) assumed responsibility for adjusting the workers' compensation claim. The Fund asked the Board to dismiss the taxi driver's claim because of the unapproved settlement. The Board dismissed the claim, and the Alaska Workers' Compensation Appeals Commission ultimately affirmed the Board's decision. The taxi driver appeals, advancing both legal and equitable arguments. We affirm the Commission's decision.


         A. Facts

         Tracy Atkins began driving for Inlet Transportation & Taxi Service, Inc.[1](Inlet Taxi) in the Kenai area in the summer of 2009. Shortly after midnight on September 6, 2009, Atkins was en route to pick up his last fare of the night when another car crossed the center line of the Kenai Spur Highway and hit his taxi head on. The other driver, 19-year-old Jeffrey Vincent, died in the collision; Atkins was severely injured.

         Atkins's employment relationship with Inlet Taxi has been disputed, and the record about this relationship was not well developed because of the order in which the Board decided to consider the issues. Atkins testified that Michael Kinslow hired him to work for Inlet Taxi; Atkins understood that Kinslow was buying the company and was acting as the manager for the owner, Robert Roper. Kinslow in fact was not purchasing the business, but at the time Atkins was driving the cab, Kinslow had a business license to operate a business called Inlet Taxi & Transportation. According to records from the State of Alaska Division of Corporations, Business and Professional Licensing, Inlet Transportation & Taxi Service, Inc. was a corporation wholly owned by Roper at the time of the accident. Nothing in the record shows that Atkins had a written contract with Roper, Kinslow, or Inlet Taxi, even though the Board ordered the corporation to produce a written contract if one existed. Atkins testified that while he was hospitalized following the accident, Kinslow asked him to sign a contract at Roper's behest. Atkins refused to sign it.

         Several months after the accident, Atkins contacted Joseph Kalamarides, an attorney experienced in representing workers' compensation claimants, to see whether his injuries might be covered by the Alaska Workers' Compensation Act (Act). Kalamarides declined to represent Atkins but wrote an opinion letter setting out statutory subsections relevant to taxi drivers.[2] Kalamarides noted that it appeared Atkins did not have a written contract and told Atkins that if he filed a workers' compensation claim, he "[might] need to know that any resolution with the liability carriers in the accident ha[d] to be done with the written agreement of the workers' compensation carrier as they may have a lien on those proceeds."[3] Kalamarides directed Atkins to the Board for further information if Atkins wanted to pursue a workers' compensation claim. Atkins later contacted the Division of Workers' Compensation to see whether Inlet Taxi had workers' compensation insurance; according to the Division's database, it was uninsured.

         Atkins retained an attorney, Stuart Cam Rader, to represent him in his personal injury claims. Rader later testified that he advised Atkins to "follow through on" "any means of redress that would put money in his pocket quickly," including workers' compensation. Rader said he did not practice workers' compensation law except for a small amount "15 or 20 years ago" but was aware that "an employer has a comp lien" on proceeds from a negligence action against a third party; he was not, however, aware of the specific statutory provision related to employer approval of third-party settlements. Rader attempted to contact Roper, Inlet Taxi, and "the person that purchased Inlet" to inform them of his representation of Atkins and "to find out about their insurance coverage." Rader did not recall talking to anyone at Inlet Taxi until he "was able to make a connection with an adjuster for National Continental Insurance," Roper's commercial liability insurer. The adjuster requested that Rader "recover whatever [he] could from the at-fault parties... so that... [the adjuster] could properly address the underinsured's liability under Inlet Taxi's policy." Rader obtained a policy-limits settlement against the estate's automobile insurance policies, [4] and Atkins signed releases related to the estate's insurance on May 5, 2011. Each policy paid $50, 000 plus prejudgment interest and Alaska Civil Rule 82 attorney's fees. After Rader provided Roper's insurer's adjuster with copies of the releases, the commercial liability carrier settled Atkins's underinsured motorist claim. Although Rader was not entirely sure, he thought he "was aware [Atkins] was pursuing a comp remedy before ... settl[ing] with the [estate]." Nothing in the record indicates that Rader obtained written approval from Roper or Inlet Taxi for the settlement with the Vincent estate.

         B. Proceedings

         When Atkins contacted the Division to inquire whether Inlet Taxi had compensation coverage, a Division employee urged him to file a claim with the Board. Atkins filed a Report of Injury in early April 2011, noting that Inlet Taxi was uninsured. He filed a written workers' compensation claim for a variety of benefits the same day. His claim identified Inlet Taxi & Transportation as his employer and asked the Board to join the Fund. The Fund, established in 2005, [5] can provide compensation benefits to injured workers in some circumstances.[6] An employee whose employer (1) has no compensation coverage and (2) "fails to pay compensation and benefits due to the employee under [the Act]" can "file a claim for payment by the [F]und."[7] "The [F]und may assert the same defenses as an insured employer under [the Act]."[8]

         The Board sent notice of the claim to Inlet Taxi; it did not answer.[9] The Fund filed an answer to Atkins's claim, disputing the existence of an employment relationship. The Fund filed its first notice of controversion in May 2011, disputing whether Atkins was covered by the Act because he was a taxi driver. The Fund also petitioned to join the corporate officers of Inlet Transportation & Taxi Services, Inc.[10]and Michael Kinslow d/b/a Inlet Taxi & Transportation Services.

         On May 16 the Fund's adjuster, Joanne Pride, interviewed Atkins. Atkins told her the circumstances of the accident and his employment with Inlet Taxi, and gave her information about his work history. Atkins shared letters from Kalamarides and the estate's insurance adjuster with Pride. Atkins told Pride he was being represented by Rader and that they were "working on" a settlement with the estate, saying, "Have no monies as of yet but working on it." Atkins informed Pride that the settlement would be for policy limits and would total $100, 000 before attorney's fees and liens were taken out. He confirmed that his medical expenses exceeded the amount of the settlement. Atkins did not advise Pride that he had signed the two automobile insurance releases 11 days earlier. Pride did not tell Atkins he might need to get written approval from either his employer or the Fund for any settlement with the estate.

         The Board joined Kinslow and all corporate officers of Inlet Transportation & Taxi Service, Inc. The only employer entity who answered the claim was Kinslow; in an untimely answer he asked to be dismissed from the case, which the Board refused to do. The record indicates that Brian Altman, the vice-president of the corporation, contacted the Board to say he "would have no participation in the case" because "Atkins was not an employee of the corporation." In October 2011, the Fund filed a second notice of controversion based on Atkins's settlement with the estate.

         Atkins filed an affidavit of readiness for hearing in October 2013, two years after the Fund's second notice of controversion. The Fund then petitioned the Board to dismiss Atkins's workers' compensation claim on two grounds: (1) he did not get written permission from the employer prior to settling with the estate and (2) he did not timely file an affidavit of readiness for hearing because he did not file it within two years of the first notice of controversion.

         The Board scheduled a hearing on the petition to dismiss. Atkins, who was self-represented, emailed the Board shortly before the hearing to complain that the parties had not yet determined whether he even had a workers' compensation case. He renewed his objection at the hearing, arguing that if Inlet Taxi was not his employer under the Act, there was no reason for the parties to have a hearing. The Fund asserted the employment question was "more complicated" and asked the Board to dispose of the case on other grounds. The Fund's position was that Atkins's medical bills from the accident exceeded the total settlement with the estate, so Atkins's failure to obtain written approval of that settlement from his employer or the Fund was an adequate legal basis on which to dismiss the claim.[11]

         At the hearing the Board chair initially questioned the Fund's attorney about the order in which the issues were being presented for decision, noting "two big preliminary issues" that were disputed, one being "Was Mr. Atkins an employee for purposes of the Act?" and the other being "Was he exempt from the Act as a taxi driver?" The Fund refused to concede Atkins was an employee for purposes of the Act but asked the Board to go forward with the hearing assuming Atkins was an employee of some employer.[12] The Board agreed to hear the issues in the order the Fund wanted them heard after determining the parties agreed that Atkins's medical bills (compensation the Fund might be liable for) exceeded the amount of the settlement with the estate.

         Pride testified about the controversions she filed and about the interview she conducted with Atkins in May 2011, indicating Atkins had informed her of the amount of his medical bills and the settlement negotiations with the estate's insurer. Pride testified that Atkins told her a settlement was "in the works" but did not say he had already signed releases for the estate's insurance, and when she contacted other insurance companies in October 2011, "[t]hey were very taken aback, because they were not aware that workers' comp was involved in this, or they would never have settled the claim."[13] Pride calculated the amount of Atkins's benefits, estimating his weekly disability benefit would be $362.

         Rader did not recall when he found out Atkins had filed a workers' compensation claim and could not recall whether he had referred Atkins to Kalamarides, but he remembered telling Atkins that Atkins "should follow through on" other "means of redress."[14] Rader testified that he attempted more than once-though he was not sure how many times - to contact Inlet Taxi or a representative of that company and that he was aware that the employer might have "a comp lien" on settlement proceeds. The only person connected to Inlet Taxi that Rader heard from was the adjuster for National Continental Insurance. Rader's understanding was that National Continental had issued a commercial liability policy with Roper as the insured, but he thought the policy had the name of a business entity as well. Rader admitted he was unaware of the specific statutory subsection requiring the employer's written approval of a settlement with a third party. He indicated that the adjuster asked him to obtain a policy-limits settlement from the estate so the adjuster could address underinsured motorist coverage.

         Airman, testifying as a witness for the Fund, said he had been an officer of Inlet Transportation & Taxi Service, Inc. (which was no longer in business by the time of the hearing) beginning in 2008. He was a driver, but Roper asked him to join "the management team and made [him] vice-president of the corporation." According to Airman, Roper was "senile" and had not had a driver's license for some time. Airman testified that Kinslow had expressed an interest in buying the company, but Altman thought Kinslow had taken advantage of Roper because when Altman returned from a "hiatus" "Roper felt he had no control of the company." Altman said he had never met Atkins and that Atkins's attorney had not contacted him. Altman was aware of Atkins's accident because Altman was "the liaison to the Alaska State Troopers to retrieve any property" belonging to Inlet Taxi.

         At the start of his own testimony, Atkins again objected to the order of proceeding. He then testified about his contacts with the Board and the steps he took to file his claim. He disclaimed any "malicious" intent in the sequence of events and explained his delay in filing a workers' compensation claim by saying he was overwhelmed with the extent of his injuries.

         The Board dismissed Atkins's claim because he had not obtained the written approval of the Fund or Inlet Taxi before settling with the estate. The Board observed that the Fund could assert the same defenses as insured employers and that AS 23.30.082(c) had "long been construed to apply also to uninsured employers." The Board said the language of AS 23.30.015(h) was "clear and unequivocal." The Board declined to decide the Fund's request to dismiss for failure to file a timely hearing request because there was "no need" to do so.

         Atkins appealed to the Commission. While the appeal was pending, Atkins obtained representation in his workers' compensation case. Atkins asserted in his brief before the Commission that Inlet Taxi was aware of or consented to the settlement with the estate. He argued that Inlet Taxi should not be allowed to avail itself of the employer-approval defense to payment because of its refusal to participate in the Board proceedings or to communicate with Rader when Rader attempted to contact it. Atkins argued his policy-limits settlement without Inlet Taxi's written approval was not prejudicial to the employer and contended that equitable principles barred application of the employer-approval provision to the case because "the insurance carrier for... Inlet Taxi had actual knowledge of the attempts to settle insurance claims" by virtue of the adjuster's contact with Rader. He raised a substantial compliance argument, arguing that the purpose of the written-approval requirement was fulfilled in his case because his policy-limits settlement with the estate gave Inlet Taxi all it could have gotten from the claim. He asked the Commission to reverse the Board's decision and remand the case to the Board so that the Board could determine his eligibility for benefits.

         The Commission issued a short decision remanding the case to the Board for factual findings related to Atkins's equitable defenses and for consideration of the Fund's argument that Atkins had not asked for a hearing by the statutory deadline.[15] The Commission stated it could not "rule on Mr. Atkins'[s] equitable argument, or on the argument that Inlet Transportation was not prejudiced by the settlement, in the absence of pertinent factual findings." In its discussion of the need for remand, the Commission first noted testimony from Rader that he had tried to contact Inlet Taxi but had gotten no response, which it considered relevant to an estoppel argument. It also noted testimony that Roper's "commercial insurance carrier was aware of the third party settlement," which it considered relevant to whether Inlet Taxi had notice of the settlement. The Commission also observed that Atkins's argument about excusing the lack of employer approval "need not be considered at all, if his claim [was] otherwise barred" because Atkins did not timely request a hearing. The Commission retained jurisdiction, remanded to the Board for further proceedings and factual findings, and said it would consider the arguments raised on appeal "after completion of the further proceedings and findings in compliance with [the] order."

         The Board held a second hearing in 2015 at which it heard testimony from a Division employee related to her advice to Atkins about his deadline for requesting a hearing. Atkins called two witnesses to show that the estate had negligible assets aside from insurance; Atkins also testified again.

         In its second decision, the Board decided the claim should be dismissed because Atkins had not filed an affidavit of readiness for hearing within two years of the first controversion. The Board thought the May 2011 controversion based on Atkins's occupation as a taxi driver was a good-faith controversion, and it decided that because Atkins did not request a hearing within two years of the May 2011 controversion, his claim should be dismissed. The Board made some further factual findings, but they did not pertain to the settlement or prejudice to the employer. The Board did not discuss the equitable issues and "denied as moot" the Fund's petition to dismiss under the employer-approval requirement in light of the dismissal on other grounds.

         Atkins again appealed. The Commission reversed the Board's decision about the timeliness of Atkins's hearing request because the Commission determined the May 2011 controversion was not in good faith and, under earlier Commission decisions, a bad-faith controversion cannot start the limitations period to request a hearing.[16]

         The Commission then decided that Atkins's claim had been properly dismissed under the employer-approval provision in AS 23.30.015(h). It decided first that AS 23.30.015(h) applied to uninsured employers. The Commission then decided that Inlet Taxi's failure to file an answer could not serve as basis for waiver of its employer-approval defense. It also assumed that an employer could be estopped from asserting such a defense and "that the failure to respond at all to a request for written consent would be sufficient to avoid application" of that defense "under an equitable theory." But it decided that because Rader was unaware of the specific statutory requirement of written approval, "his attempt to contact Inlet Taxi could not have been an effort to obtain its written consent" and thus no causal relationship existed to support estoppel. The Commission decided Atkins had not substantially complied with the statute and that the statutory penalty applied even in the absence of actual prejudice to the employer. The Commission then decided "that, when an employee notifies an employer of the intent to compromise a third party claim and requests its approval of the settlement, the employer may withhold its approval only if it does so in good faith." Because of this requirement, the Commission saw no reason "that the term 'persons entitled to compensation' in AS 23.30.015(h) must be construed as limited to persons for whom the employer has accepted liability or to whom it has made compensation payments." The Commission did not deem it necessary to address bad faith in Atkins's case.

         Atkins appeals.


         In a workers' compensation appeal from the Commission, we review the Commission's decision rather than the Board's.[17] "Interpretation of a statute is a question of law to which we apply our independent judgment, interpreting a statute 'according to reason, practicality, and common sense, considering the meaning ...

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