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Zaverl v. Hanley2/14/2003
ath action are liable for attorney's fees and costs under AS 09.55.580 and AS 09.60.040. They rely on In re Soldotna Air Crash Litigation, in which we reiterated that although estate representatives are nominal parties in wrongful death actions, a wrongful death action is "the [beneficiaries'] cause of action."
Alaska Statute 09.60.040 cannot reasonably be read to permit recovery of attorney's fees and costs against the statutory beneficiaries in this case because they did not appear and did not make claims in their personal capacities. Soldotna is distinguishable. We were concerned there with whether a prevailing defendant could recover costs and attorney's fees under AS 09.60.040 against the non-prevailing plaintiff in a wrongful death action. We held that the prevailing defendant could recover its award from the fund created by the plaintiffs' recovery from the other defendants. We left for another day the question whether a prevailing defendant could recover such an award from the statutory beneficiaries in the absence of a fund. We now address that question and answer it in the negative.
The only party plaintiff in this case was William Zaverl, and he appeared only in his representative capacity and not in any personal capacity. We hold that, although the statutory beneficiaries not named in a wrongful death lawsuit are the beneficiaries of any recovery, statutory beneficiaries who are not parties to the wrongful death lawsuit in their personal capacities are not parties for the purpose of responding to awards of costs and attorney's fees. Accordingly, we vacate the trial court's award of costs and attorney's fees against the estate's statutory beneficiaries.
IV. CONCLUSION
We REMAND to the trial court to determine whether the error of allowing Dr. Borden to testify at trial about topics he refused to discuss at his deposition prejudiced the estate's claims against either defendant. We also VACATE the joint and several award of costs and attorney's fees against the estate's statutory beneficiaries. We AFFIRM as to all other issues.
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