Haile v. Pan American World Airways, Inc.
This text of 505 P.2d 838 (Haile v. Pan American World Airways, Inc.) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
OPINION
RABINOWITZ, Chief Justice, and ERWIN, Justice, concurring in part and dissenting in part.
The principal dispute in this appeal hinges on the question of whether the attorneys in these workmen’s compensation cases are entitled to a minimum attorney’s fee based on 25 percent of the first $1,000 of compensation awarded and 10 percent of all sums in excess thereof or, in the alternative, whether the Board was authorized to award a reasonable attorney’s fee without regard to such minimum provisions. In cases such as the instant one, where three death claims are involved, the minimum attorney’s fees could well exceed $15,000, whereas reasonable fees for the services involved would be a much smaller sum.
This case arose out of the death of the Captain, First Officer and Flight Engineer of a Pan American World Airways aircraft which crashed on take-off at Anchorage, Alaska, on December 26, 1968. The deceased were residents of California. Applications for workmen’s compensation benefits were filed under the Alaska Workmen’s Compensation Act in February 1969 and the matter was set for hearing on May 8.
The record gives no indication that the employer ever controverted the claim. AS 23.30.155(d) specifies:
If the employer controverts the right to compensation he shall file with the board on or before the 14th day after he has knowledge of the alleged injury or death, a notice, in accordance with a form prescribed by the board, stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted.
Such notice was not filed. Furthermore, prior to the hearing, the employer sent a telegram to the Board specifically stating that the “defendants are not contesting any of the three claims in question. . . . ”
Resolution of the dispute as to allowable attorney’s fees depends upon the construction of several provisions of the Alaska Workmen’s Compensation Act. The principal section in question is AS 23.30.145.1 [840]*840Subsection (a) thereof provides for the award of a minimum attorney’s fee and specifies:
. When the board advises that a claim has been controverted, in whole or in part, the board may direct that the fees for legal services be paid by the employer or carrier in addition to compensation awarded; the fees may he allowed only on the amount of compensation controverted and awarded. . . . (Emphasis added.)
Thus, the award of the minimum statutory fees applies only in cases where a claim has been controverted.
In the subject cases, the defendants failed to respond to the claim or to pay compensation prior to the Order of the Board. AS 23.30.145(b) expressly provides for the very situation here involved where “an employer fails to file timely notice of controversy or fails to pay compensation within 15 days after it becomes due or otherwise resists the payment of compensation. . . . ” Under those circumstances, the Board “ . . . shall make an award to reimburse the claimant for his costs in the proceedings, including a reasonable attorney fee.”
It is to be noted that subsection (b) makes no reference to the award of a minimum fee, but refers only to the allowance of a “reasonable attorney fee.” (Emphasis added.) Had the legislature intended the minimum fee provision to apply to subsection (b), it would have been a simple matter to have so specified. The failure to do so, coupled with the illogic of awarding a fee which may be out of all proportion to the services performed, dictates a construction of subsection (b) as being separate and distinct from the minimum fee provision of subsection (a).
We are still confronted with the question of whether the claims may be regarded as “controverted” so as to come under subsection (a). One of our dissenting brethren concludes that the delay in making payment constitutes a controversion of the claim. He refers to the case of Wilson v. Erickson2 which held that failure to comply with the statute concerning payment of claims for an extended period of time will be considered for the purpose of imposing penalties. Apparently based on this holding, it is concluded that delay in making payment constitutes a controversion of the claim so as to mandate an award of minimum attorney’s fees. Such a conclusion, however, is non sequitur. The Workmen’s Compensation statute provides for penalties for late payment.3 It does not state that additionally, the defendant shall be penalized by award of an outlandish attorney’s fee. In construing the applicable sections of the act, concern for the injured employee is misplaced, as the fees go to the attorney, not the employee.
AS 23.30.155(e) expressly covers situations where employers fail to make payment of compensation without an award within 14 days after such compensation is due. A 20 percent penalty is added to the unpaid installment unless excused by the Board based on a showing by the employer that the installment could not be paid owing to conditions beyond its control. In the subject case, the Board did not impose the penalty, finding that the conditions causing the delay were beyond [841]*841the employer’s control. No appeal has been taken from that ruling so that it is not before us for consideration. The employer’s delay in making payment which, based on the finding of fact in this case was due to conditions over which it had no control, cannot be equated to a controversion of the claim.
The attorneys who represented the claimants are certainly entitled to an award of reasonable fees. That is provided for by the act. But there is no reason why they should receive a sum out of all proportion to the services performed. Alaska’s provision allowing attorney’s fees is unique in its generosity to the claimants and their counsel.4 It, however, does not provide that a delay in payment, by itself, constitutes a controversion of the claim justifying the award of the minimum fees. There is no justification for adding such provision to the comprehensive terms of the act.
Further, the Board which has administered this same act over many years, found that subsection (b) of AS 23.30.145 requiring the award of costs “including a reasonable attorney fee” was applicable, rather than the provision of subsection (a) which called for a minimum fee in controverted cases. As recently as September of this year, we held that: “We will accept the reasonable construction of the board where undefined or ambiguous terms appear in the statutory language.” 5 If there is ambiguity in the statutory provisions, the Board’s construction appears eminently reasonable.
The Board, however, failed to award costs to the claimants. AS 23.30.-145(b) requires the awarding of “costs in the proceedings, including a reasonable attorney fee.” (Emphasis added.) Also, counsel for claimants contend that they were not afforded a hearing on the issue of the amount of attorney’s fees that would be reasonable in the subject case considering the time expended and the results obtained. Accordingly, the case is remanded to the Board for a hearing and determination of the proper amounts to be awarded for costs and attorney fees. Remanded.
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Cite This Page — Counsel Stack
505 P.2d 838, 1973 Alas. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haile-v-pan-american-world-airways-inc-alaska-1973.