Myers v. Robertson

891 P.2d 199, 1995 Alas. LEXIS 21, 1995 WL 101371

• Court: Alaska Supreme Court
• Decided: March 10, 1995
• Docket: S-4661, S-4673
• Status: Published

Opinions

OPINION

MOORE, Chief Justice.

I. Introduction

This intra-family lawsuit arises from the accidental death of a thirteen year old boy, Sidney Robertson, Jr. The minor’s estate, along with the child’s brother Stephen (the “Estate”), sued the boys’ parents, Sidney Robertson, Sr. and Terri Robertson (“the Robertsons”), on a theory of negligence. The parents’ insurer, Allstate Insurance Co. (“Allstate”), appointed counsel to defend the Robertsons. However, based on Allstate’s belief that the Robertsons’ true interest was in losing the lawsuit so that they could recover the insurance proceeds paid to the Estate, Allstate later intervened in the case as a party defendant. Allstate participated at trial outside the jury’s presence, and the jury was not informed of its existence as the real party in interest. The jury found that, although the Robertsons were negligent, their conduct was not the legal cause of their son’s death.

The Estate appeals, claiming that Allstate’s interest in the case should have been disclosed to the jury. Allstate cross-appeals, arguing that the case should have been dismissed for lack of adversity and on public policy grounds.

We conclude that several rulings of the trial court were erroneous, but that the errors were harmless. Therefore, we uphold the jury’s verdict.

II. Facts and Proceedings

In June 1988, the Robertsons were living in a single family residence in Anchorage with their two sons, Sidney, Jr., then age 13, and Stephen, then age 9. The Robertsons had plans to attend a special event at an Anchorage museum for the evening of June 23, 1988. They decided to leave the children at home for the few hours they would be gone. To entertain the boys, the Robertsons left them some VCR movies, including a skateboard movie called “Thrasher.”

Following their parents’ departure, Sidney, Jr. and Stephen watched “Thrasher.” After the movie, Sidney, Jr. went to the garage, where Terri Robertson had parked the family’s 1981 Triumph TR-7. At the back of the garage, the Robertsons stored a skateboarding ramp that they had given Sidney, Jr. for his birthday one month earlier.

The parties dispute the following series of events. Allstate argues that the TR-7 was securely parked, in gear, with the emergency brake engaged and the garage door closed. Místate asserts that Sidney, Jr. opened the garage door, released the car’s parking brake and intentionally attempted to move the TR-7 so that he could skateboard in the garage. The Estate suggests that the Robertsons had negligently left the garage door open, left the TR-7 out of gear and failed to repair the car’s nonfunctioning emergency brake. As a result, when Sidney, Jr. tried to skateboard around the car, he unintentionally caused it to begin rolling.

In either event, it is clear that at some moment the TR-7 began rolling backward down the Robertsons’ steep incline driveway. Sidney, Jr. ran behind the car, apparently trying to stop it from rolling into the street. The TR-7 eventually backed into another car parked across the street from the Robertson home, pinning Sidney, Jr. between the two cars. Sidney, Jr. later died as a result of his injuries. Stephen witnessed the accident.

Several months after Sidney, Jr.’s death, the Robertsons consulted with attorney Olof Hellén regarding the extent of their insurance coverage for the accident. Hellén’s law firm reviewed the Robertsons’ insurance policies and advised the Robertsons to designate a close friend as representative of Sidney, Jr.’s estate and as special guardian of Stephen. The firm further advised the Robert-sons to retain their own counsel, since Sidney, Jr.’s estate and Stephen would bring a lawsuit against them and that, in the event of a recovery by Sidney, Jr.’s estate, the Rob-ertsons ordinarily would receive the proceeds as their son’s heirs in intestacy.

Course of Proceedings

The Robertsons arranged for Linda Myers, a family friend, to act as the representative of Sidney, Jr.’s estate and as Stephen’s special guardian for the purposes of this litigation. The Robertsons waived any conflicts of interest, and Olof Hellén undertook representation of the Estate. The Estate filed this action against the Robertsons in December 1988, alleging that the Robert-sons were negligent in (1) possessing a driveway with an unsafe incline, and (2) failing to properly secure their Triumph TR-7 in their garage.

Due to its duty to defend the claim against the Robertsons, Allstate appointed the law firm of Hughes, Thorsness, Gantz, Powell & Brundin (“Hughes, Thorsness”) to represent the Robertsons. Hughes, Thorsness filed a motion to dismiss the Estate’s claims based on the public policy that negligent parties should not benefit from their wrongful conduct. Hughes, Thorsness argued that, because the Robertsons were the sole beneficiaries of Sidney, Jr.’s estate, they would be monetarily rewarded if they negligently caused their son’s death.¹ The Estate opposed the motion; it then moved to disqualify the Robertsons’ counsel on the grounds that the motion to dismiss was contrary to the Robertsons’ interests in losing the case.

Before the court ruled on the Estate’s motion to disqualify, Hughes, Thorsness withdrew as defense counsel for reasons unrelated to this case. The law firm of Guess & Rudd substituted as defense counsel. However, Guess & Rudd subsequently withdrew due to an “irreconcilable conflict of interest” between it and the Robertsons.

Following Guess & Rudd’s withdrawal, the Estate moved for an order to protect the Robertsons by requiring that Guess & Rudd’s files be transferred to the Robertsons and not to Allstate. Allstate then intervened in the case as a party defendant, asserting that the Estate was advancing the real interests of the Robertsons, who were not adverse to its claims. Based on the conflicting interests between Allstate and the Robertsons, the trial court ordered that Allstate appoint independent counsel to represent the Robert-sons. It further ordered that independent counsel not report to Allstate. In compliance with this order, Allstate retained Theodore Pease, Jr. of Burr, Pease & Kurtz, with the Robertsons’ consent and the court’s approval, to defend the Robertsons.

Allstate moved to dismiss the Estate’s claims under Alaska Civil Rule 12(b)(1), arguing that the lack of genuine adversity between the Estate and the Robertsons deprived the court of subject matter jurisdiction. Allstate alternatively moved to dismiss under Civil Rule 12(b)(6), arguing that the Estate’s claims could not succeed due to the public policy barring the Robertsons from benefitting from their negligent conduct by obtaining the proceeds of Sidney, Jr.’s estate.²

The court denied Allstate’s motion, and the ease proceeded to trial. With the court’s approval, Allstate elected not to participate at trial during the jury’s presence. The court also approved Allstate’s motion to prevent any reference to insurance during trial, except for limited questions during jury selection.

During trial, the Robertsons testified in a manner which sometimes suggested that they took responsibility for negligently causing their son’s death. For instance, Terri Robertson testified that both she and her husband knew that the TR-7’s emergency brake had never worked, and that they were negligent in failing to repair it. She also disputed that she told the police on the night of the accident that she had closed the garage door and left the TR-7 in gear before going out. Sidney Robertson, Sr. testified that the TR-7’s emergency brake had never worked.

The Robertsons’ counsel, Theodore Pease, then impeached his clients’ credibility with their prior statements, made either to the police or in depositions, which suggested that the TR-7 could not have begun rolling unless Sidney, Jr. first opened the garage door, took the car out of gear and released the parking-brake. By this impeachment, and through closing argument, defense counsel suggested to the jury that the Robertsons’ emotional pain led them to take responsibility for their son’s death, even when such responsibility was inappropriate.

The Estate objected on the Robertsons’ behalf, arguing that Mr. Pease’s impeachment was contrary to the Robertsons’ interests. The court overruled the objection, stating that, for sufficient adversity to exist, defense counsel must present “a classic defense in the sense that [the goal is] to make sure that his clients are not found liable.”

In argument over jury instructions, Allstate again raised the adversity issue. On Mr. Pease’s proposal, the court instructed the jury that the Robertsons were the heirs to Sidney, Jr.’s estate. Mr. Hellén again objected that it was improper for defense counsel to propose such an instruction because the instruction was contrary to the Robertsons’ interests. The court found that sufficient adversity existed because Mr. Pease, was properly representing the Robert-sons ás defendants, not as plaintiffs. Similarly, the court held that Mr. Pease could argue in closing that Sidney, Jr.’s own negligence had caused his injuries and death, even if the Robertsons did not want this argument to be made because they did not believe it was true.

The jury determined that the Robertsons were negligent but that their negligence was not the legal cause of Sidney, Jr.’s death. The court subsequently entered judgment in favor of the Robertsons and Allstate.

III. Discussion

A.

We first address the issues raised by Allstate’s cross-appeal since they go to the court’s jurisdiction. Allstate asserts that the case should have been dismissed because there was never any genuine adversity between the Estate and the Robertsons.

1. Adversity and Sitbject Matter Jurisdiction ³

Allstate contends that the trial court had no subject matter jurisdiction over this ease since the Robertsons and the plaintiff had identical interests. Most notably, the Robertsons would receive any recovery by Sidney, Jr.’s estate as his sole beneficiaries in intestacy. See supra note 1. Moreover, because the Robertsons prompted the plaintiffs initiation of this suit, Allstate argues that Linda Myers is only a figurehead. According to Allstate, the Robertsons are the real plaintiffs and are in essence suing themselves.

In discussing the standing requirement, this court has stated that an Alaska court has no subject matter jurisdiction unless the lawsuit before it presents an actual controversy involving a genuine relationship of adversity between the parties. Trustees for Alaska v. State, Dept. of Natural Resources, 736 P.2d 324, 329-30 & n. 9 (Alaska 1987), cert. denied, 486 U.S. 1032, 108 S.Ct. 2013, 100 L.Ed.2d 601 (1988); Wagstaff v. Superior Court, 535 P.2d 1220, 1225 (Alaska 1975). Adversity insures that parties will energetically pursue their opposing positions and present facts necessary for the fair resolution of the case. Bowers Office Prods., Inc. v. University of Alaska, 755 P.2d 1095, 1098 (Alaska 1988). Accordingly, adversity constitutes the basic requirement for standing in Alaska. Trustees for Alaska, 736 P.2d at 327.

This court has also held that children have a right to bring lawsuits against their parents for negligently inflicted injuries. Hebel v. Hebel, 435 P.2d 8, 15 (Alaska 1967) (no parental immunity bar to an unemanci-pated minor’s negligence action against a parent). Thus, there is no per se failure of adversity simply because this lawsuit arises from an alleged intra-family tort. In Hebei, this court specifically recognized the potential for collusive intra-family litigation designed to defraud insurance carriers but determined that this danger “does not warrant denial of a remedy to the child.” Id. at 12. It further stated:

“Since the insurer is the real defendant, it has been said that there is danger of fraud and collusion between parent and child. One may not, of course, deny the hazard, but such a danger, being present in all liability insurance cases, furnishes reason not for denial of a cause of action, but for added caution on the part of court and jury in examining and assessing the facts."

Id. (quoting with approval Badigian v. Badigian, 9 N.Y.2d 472, 215 N.Y.S.2d 35, 42, 174 N.E.2d 718, 723 (1961) (Fuld, J., dissenting)) (emphasis added).

Similarly, in Aydlett v. Haynes, 511 P.2d 1311 (Alaska 1973), this court noted that intra-family tort litigation can pose special problems due to the existence of insurance. In Aydlett, a wife sued her husband to recover for injuries caused by the husband’s negligence. The court recognized that, in ordinary personal injury litigation, an insurer and a defendant-insured usually have a common interest in avoiding liability. Id. at 1315 n. 8. However, in intra-family litigation, the interests of the insured may conflict with those of the insurer since the insured may have a financial interest in seeing the plaintiff prevail. For this reason, the court stated, “[Wjhere the case involves an intra-family tort action, the trial judge must take care to assure that the actual interests of all parties are fairly represented.” Id.

In light of Hebei and Aydlett, there is no merit to Allstate’s contention that the Estate’s claims against the Robertsons were not actionable and should be precluded as a matter of law.⁴ See also Drickersen v. Drickersen, 604 P.2d 1082 (Alaska 1979) (husband’s suit against wife on behalf of injured child could lie). Rather, as these cases indicate, the action may proceed. However, the trial court must exercise added caution to insure that the potentially conflicting interests of an insurer and its insured are fairly represented. This 'is precisely what Judge Fabe did.

Consistent with the obligations imposed under Hebei and Aydlett, the court required counsel for the Robertsons to further the Robertsons’ interests in this case as defendants, not as plaintiffs. Although placed in a sometimes awkward position, Mr. Pease conscientiously and effectively presented the Robertsons’ defense.⁵ Further protecting the interests of all parties, the court appropriately required that the Robertsons’ defense counsel be independent from Allstate in the sense that Mr. Pease would not report to Allstate. By these actions, the court struck a balance between the Estate’s right to sue and Allstate’s right to an adversarial defense. Because this case involved an adversarial relationship, the trial was not a sham and was properly allowed to proceed.⁶

While Allstate recognizes the general rule that intra-family litigation is permissible, it claims that this case is distinguishable from other Alaska intra-family tort cases because the Robertsons stand to gain 100% of any recovery paid to Sidney, Jr.’s estate. Allstate urges us to find that, in situations where the defendants’ pecuniary interests are identical to those- of the plaintiff, the defendants are in fact the “real plaintiffs”. Under this reasoning, the Robertsons are in essence suing themselves, so there is no adversity and no subject matter jurisdiction.

Allstate cites several cases from other jurisdictions in support of this argument. These decisions adhere to the view that the administrator of a decedent’s estate is not the real party in interest to the estate’s wrongful death action; the real party in interest is the beneficiary to whatever recovery is obtained by the estate. Therefore, if the defendant is also the sole beneficiary of the estate, he must be considered both plaintiff and defendant, and no action will lie. See Dishon’s Administrator v. Dishon’s Administrator, 187 Ky. 497, 219 S.W. 794, 795 (1920) (no cause of action under Kentucky’s wrongful death statute when defendant is the sole beneficiary of plaintiff-estate because the wrongdoer would be both defendant and real plaintiff); Glucksman v. Strelecki 102 N.J.Super. 53, 245 A.2d 228, 231-32 (1968) (granting summary judgment against plaintiff-estate because defendant, sole beneficiary of estate, was real party in interest and effectively acted as both plaintiff and defendant); Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203, 205-06 (1947) (administrator of estate had no wrongful death cause of action against decedent’s tortfeasor-husband who was sole beneficiary of wife’s estate); Carver v. Carver, 310 N.C. 669, 314 S.E.2d 739, 743 (1984) (reiterating the Davenport rule in dicta).

These cases also rely on the public policy that no person should profit from his or her own wrongdoing. This principle provides that it would be incongruous to permit an estate to recover damages, when the sole beneficiaries of that award are the same people who negligently caused the injury in the first place. See Carver, 314 S.E.2d at 745; Dishon’s Administrator, 219 S.W. at 795; Glucksman, 245 A.2d at 232. However, a negligence action may proceed if there exist beneficiaries to the estate other than any negligent beneficiaries. See Carver, 314 S.E.2d at 744-45. In such situations, the non-negligent beneficiaries may recover their shares of any damages paid to the estate. Any negligent persons who otherwise would be beneficiaries are precluded from obtaining any part of the estate’s recovery based on public policy considerations. Id.

Whether the beneficiaries to an estate are in fact the “true plaintiffs” in a wrongful death action by the estate is a question of first impression in Alaska. We conclude that, where any recovery by the estate would not be paid directly to specified individuals, the beneficiaries to the estate should not be considered the plaintiffs. Therefore, there is no jurisdictional bar to an administrator’s negligence action against parties who might otherwise stand to benefit from their wrongdoing.

In resolving this issue, we look to Alaska’s wrongful death statute, AS 09.55.580.⁷ It states that, in the event the decedent left no spouse, children or other dependents, any recovery for wrongful death will be paid to the decedent’s estate. The recovery does not go directly to any specified beneficiaries. The proper beneficiaries of the estate can be determined subsequent to the estate’s recovery. For this reason, the beneficiaries of an intestate estate are not the “true plaintiffs” in an action by the estate. The plaintiff is the administrator, on behalf of the estate, which is distinct from its beneficiaries.⁸

Our conclusion is supported by precedent under Oregon law.⁹ In Oviatt v. Camarra, 210 Or. 445, 311 P.2d 746 (1957), the Oregon Supreme Court interpreted Oregon’s wrongful death statute and determined that an estate is distinct from its beneficiaries when any recovery would be paid to the estate, not to the beneficiaries directly. We find this aspect of Oviatt persuasive, and therefore adopt it as the rule in Alaska. See also W. Keeton, Prosser and Keeton on the Law of Torts, § 127 at 958 (5th ed. 1984) (under wrongful death acts where any damages are recoverable on behalf of decedent’s estate, the estate is considered distinct from its beneficiaries).

In this case, there is no dispute that any wrongful death recovery by the administrator would be paid to Sidney, Jr.’s estate. The determination of eligible beneficiaries to that award is a question arising subsequent to the jurisdictional issue. We therefore address it as a matter of public policy apart from the adversity question. Accordingly, we believe the trial court properly asserted subject matter jurisdiction over this litigation. The real question is whether, had the Estate been successful on its claims, the Robertsons should forfeit their right to inherit any part of Sidney, Jr.’s estate. We address this question as a matter of public policy.

2. Public policy

Allstate contends that the Estate’s claims should have been dismissed based on the public policy preventing wrongdoers from benefitting from their own negligence. Relying substantially on Oviatt v. Camarra, 210 Or. 445, 811 P.2d 746 (1957), the trial court disagreed and concluded that there would be no public policy bar in Alaska to the Robert-sons’ recovery of damages awarded to Sidney, Jr.’s estate through intestate succession.

While we agree with Allstate as to its public policy concerns,-we do not agree that dismissal would be the appropriate means of resolving those concerns. We therefore depart from Oviatt in our analysis of this issue. The Oviatt court determined that the administrator of a deceased child’s estate could bring a negligence action even though the administrator herself was both an heir to the estate and contributorily negligent in causing the chüd’s death. 311 P.2d at 750-51. It also held that there was no public policy bar to a negligent party’s recovery of wrongful death proceeds through intestate succession. Id.

In our view, the better policy precludes a negligent party from obtaining any part of a damage award, so that the negligent party will not benefit from his or her wrongdoing. This is true whether the neghgent person would have benefitted directly, as a specified beneficiary under the wrongful death statute, or indirectly through intestate succession. In this respect, our decision is consistent with several eases cited by Allstate.¹⁰ See, e.g., Carver, 314 S.E.2d at. 744-45; Davenport, 44 S.E.2d at 205; Glucksman, 245 A.2d at 232.

In implementing this policy, however, we do not follow the example set forth in many of the eases cited by Allstate. Many of those decisions reduce the damage award paid to the estate by the pro rata share otherwise payable to the negligent party. See, e.g., Carver, 314 S.E.2d at 744. In contrast to these cases, we do not believe the award to Sidney, Jr.’s estate should be reduced simply because certain beneficiaries are no longer eligible to recover any proceeds. Rather, we believe that any ineligible beneficiaries should be considered to have renounced their right to recover. The proceeds of the estate would then be distributed in a manner consistent with AS 13.11.295, regarding renunciation of intestate succession rights. Thus, for purposes of distributing any proceeds awarded to Sidney, Jr.’s estate, the Robert-sons should be considered to have predeceased their son, and the entire award may be distributed to any other existing and eligible statutory heirs. See AS 13.11.295(e).¹¹

In summary, we affirm the trial court’s decision regarding adversity and the court’s subject matter jurisdiction over this action. The Robertsons were not the plaintiffs in this action, and the Estate’s claims were properly permitted to go forward. We reverse the court’s ruling regarding the Robertsons’ eligibility as beneficiaries of any recovery by Sidney, Jr.’s estate. However, since the jury’s verdict was in favor of the defendants, there is no need for further action on this issue.

B.

In its appeal, the Estate claims that the trial court erred in allowing Allstate to participate at trial outside the jury’s presence and in prohibiting any reference to insurance during trial. It contends that, once Allstate intervened, the trial court was required to clarify the alignment of the parties in the case so that the jury would not misunderstand the true interests of all parties. The Estate further contends that the Robertsons’ counsel represented Allstate’s interests at trial instead of the Robertsons’. It argues that this fact tainted the entire trial because counsel presented a case at odds with the Robertsons’ view of events and improperly suggested to the jury that counsel’s own clients could not be believed. The jury was therefore unfairly prejudiced against the Robertsons, which damaged the Estate’s interest in having the jury fully consider their trial testimony.

The Estate frames these arguments in constitutional terms, claiming that the court’s rulings violated its right to due process under the Alaska Constitution. It also argues that the rulings accorded insurance companies special status,' thereby depriving the Estate of equal protection under the law. We disagree that the trial court’s rulings violated any of the Estate’s constitutional rights. However, we agree with the argument that, in intra-family negligence actions such as the present case, the jury should be informed of an insurer’s status as the real party in interest in order to avoid confusion and prejudice against either the plaintiffs or defendants. Despite this conclusion, we believe that the failure to inform the jury of Allstate’s presence in this case was harmless error, and we uphold the jury’s verdict.

Disclosure of Allstate’s interest

In Severson v. Estate of Severson, 627 P.2d 649 (Alaska 1981), this court held that direct actions against liability insurers are not permitted in Alaska. The Estate does not argue that Severson should be overruled. Instead, it contends that once Allstate voluntarily intervened in the case, it was required to disclose its presence to the jury. This argument relies in part on Justice Dimond’s concurring opinion in Drickersen v. Drickersen, 604 P.2d 1082 (Alaska 1979). Drickersen involved an intra-family lawsuit arising from an automobile accident in which the defendant-mother’s insurance company was the real party in interest. In holding that good faith questioning of prospective jurors regarding insurance connections was permissible, a majority of this court chose not to address whether the presence or absence of liability insurance should have been made known to the jury. Id. at 1085.

In his concurring opinion, Justice Dimond argued that the insurer’s role as the real party in interest should have been disclosed. He stated that, because jurors on the whole are aware of the widespread existence of laws requiring automobile liability insurance, they would assume that a child’s lawsuit against her mother involved insurance. He concluded:

In a suit against the mother brought by a child, the insurance company is a real party in interest. I submit that this fact should be honestly faced and that the presence or absence of liability insurance should be divulged to the jury in cases such as this one. It is time to remove from the law the fiction that a child suing her mother for vast sums of money really intends to burden her mother with a resulting judgment, and to collect on the judgment from whatever assets the mother might have.

Id. at 1089.

Justice Dimond’s point is well taken, and we now adopt it as the rule in intra-family lawsuits such as the one at issue here. That is, regardless of whether Allstate had intervened in this action, we believe its interest should have been disclosed to the jury. Without explaining the basic alignment of the parties, and the Robertsons’ role as purely nominal defendants, there was a risk of confusing the jurors and unfairly prejudicing them against the plaintiff. In reaching this result, we do not overrule Severson or alter the basic proposition that the existence of insurance is irrelevant to the issue of negligent or wrongful conduct. See Alaska R.Evid. 411. We simply conclude that, in cases such as this, the jury should be provided with some context in order to fully and fairly evaluate the ease and the testimony before it. Here, the fact of insurance could have been admitted consistent with Evidence Rule 411 because that information would tend to show the potential bias or prejudice of the Robertsons as witnesses.

Despite this conclusion of law, Allstate correctly points out that, to prevail on appeal, the Estate bears the burden of showing prejudicial error. Loof v. Sanders, 686 P.2d 1205, 1209 (Alaska 1984). To do so, the Estate must demonstrate that the failure to disclose Allstate’s interest had a substantial influence on the outcome of the case. Id. To assess the effect of this error, this court must put itself in the position of the jury to determine whether the omission probably affected the verdict. Id. (citing Love v. State, 457 P.2d 622, 631 n. 15 (Alaska 1969)).

In our view, the Estate has not carried its burden of showing prejudice. Although it raises a speculative possibility of prejudice, the Estate has not convinced us that the failure to disclose Allstate’s interest probably affected the verdict. In reviewing the record, we specifically recognize the trial court’s substantial efforts to preserve the integrity of the trial, and we see no evidence of jury confusion or undue prejudice against either the Estate or the Robertsons. The record indicates that, over the course of the trial, the jury heard abundant evidence to support the conclusion that Sidney, Jr. intentionally attempted to move the car, and that the Robertsons were not the legal cause of their son’s injuries. The Estate’s arguments do not convince us that the evidence would have been interpreted substantially differently if Allstate’s presence had been disclosed. For this reason, we conclude that the error was harmless, and the jury’s verdict should be affirmed.¹²

IV. Conclusion

In sum, we affirm the trial court’s decision regarding adversity and subject matter jurisdiction. However, we note that, had the Estate recovered any damages in this case, the Robertsons could not receive any benefit from that award through intestate succession or otherwise, due to the public policy preventing negligent parties from benefitting from their negligent acts. We acknowledge the validity of the Estate’s argument regarding disclosure of an insurer’s interest in in-tra-family tort actions such as the present one. For this reason, we believe that in this limited context the jury should be informed of an insurer’s interest in order to prevent any undue confusion or prejudice against the parties. Despite this conclusion, we do not believe that disclosure of Allstate’s interest in this action would have affected the jury’s verdict. Therefore, the failure to inform the jury of Allstate’s presence was harmless error.

The verdict is AFFIRMED.

1 . Because Sidney, Jr. had no dependents, any recovery for wrongful death would be paid to his estate. AS 09.55.580(a); In re Estate of Pushruk, 562 P.2d 329, 332 (Alaska 1977). That amount would then flow back to the Robertsons as Sidney, Jr.’s heirs in intestacy under AS 13.11.015(2).

2 . This motion pertained only to the claims by Sidney, Jr.’s estate. There is no dispute that Stephen Robertson's claims for emotional trauma and loss of consortium were properly before the court.

3 . Adversity is a basic requirement of standing, which is subject to de novo review. See Bowers Office Prods., Inc. v. University of Alaska, 755 P.2d 1095, 1096-98 (Alaska 1988) (whether there is a genuine adversity so as to meet the standing requirement, is reviewed de novo as part of the doctrine of judicial restraint).

4 . Moreover, it is well-settled in this state that, as the Robertsons' liability insurer, Allstate was not a proper party defendant at trial. Severson v. Estate of Severson, 627 P.2d 649, 651 (Alaska 1981) (direct actions against an alleged tortfea-sor’s liability insurer are not permitted in Alaska).

5 . Allstate argues that defense counsel's adversarial posture could not cure the lack of adversity in this case because counsel had no control over the manner in which the Robertsons would color the facts. However, even assuming that the Rob-ertsons tried to give testimony which would favor the Estate, the result in this case belies Allstate's claim. Defense counsel effectively handled the Robertsons' defense and procured a jury verdict in favor of the Robertsons and Allstate.

6 .Given the trial court's actions to preserve the integrity of the proceedings in this case, sufficient adversity existed to allow the case to proceed even without Allstate’s intervention. Therefore, Allstate's intervention did not cure a lack of adversity or create sufficient adversity for the case to proceed. Allstate's ultimate decision to intervene, to further insure adequate representation of its interests, is simply one more circumstance indicating that adverse interests were fairly litigated in this case. But cf. 13 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3530 at 319 (2d ed. 1984) ("a case conceived in cooperation may be saved by intervention of a genuine adversary").

7 . At the time of Sidney, Jr.'s accident, AS 09.55.580 stated in relevant part:

(a) When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefore against the latter, if the former might have maintained an action, had the person lived, against the latter for an injury done by the same act or omission.... The amount recovered, if any, shall be exclusively for the benefit of the decedent's spouse and children when the decedent is survived by a spouse or children, or other dependents. When the decedent is survived by no spouse or children or other dependents, the amount recovered shall be administered as other personal property of the decedent but shall be limited to pecuniary loss.

8 .Under this rule, there also would be no jurisdictional bar to an administrator’s survival action, which would be brought on behalf of the decedent, since any damages will be paid to the estate to be distributed according to law. See AS 09.55.570.

However, if the defendants in this action were the decedent’s spouse, children or other dependents, a slightly different analysis is warranted. Because AS 09.55.580 directs that any recovery in wrongful death would be maintained exclusively for those specified individuals, they could be considered the "real plaintiffs” in an action by the estate. See Ditty v. Farley, 219 Or. 208, 347 P.2d 47, 52 (1959). However, as discussed infra, our public policy would preclude any negligent parties from recovery. Therefore, in such situations, there may be no per se failure of subject matter jurisdiction. The designated beneficiaries under the wrongful death act would be prevented from benefitting from any recovery, and the award would be distributed according to the intestacy scheme or other applicable probate law.

9 . Alaska’s original wrongful death statute adopted a modified version of Oregon’s wrongful death act. The two statutes are compared in Kulawik v. ERA Jet Alaska, 820 P.2d 627, 631 n. 8 (Alaska 1991).

10 . It is also consistent with the policy view declared by the Alaska Legislature. The state legislature has provided that persons who feloniously kill another may not benefit from their actions either by obtaining any proceeds of a wrongful death recovery, AS 09.55.580(f), or by inheriting through intestate succession. AS 13.11.305. Our decision today extends the policy expressed by these provisions in a manner that is compatible with the legislature's stated intentions.

11 . We recognize that this rule may result in a windfall for the other eligible heirs. This possibility has also arisen in other circumstances and is not inconsistent with the language of our wrongful death statute. See Kulawik v. ERA Jet Alaska, 820 P.2d 627, 637-38 & n. 21 (Alaska 1991).

12 . The Estate also asserts that there was reversible error arising from the Robertsons' counsel’s presentation of a case to the jury that sometimes questioned the Robertsons’ trial testimony and views on liability. The Estate further claims that the trial court erred in denying its motion for a mistrial after the Robertsons advised the court that they disagreed with their attorney's theory of the case. We decline to address these claims since the Estate has not explained how it has any standing to assert the Robertsons’ alleged rights with respect to their relationship with Mr. Pease.